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THE
GENERAL STATUTES
COMMONWEALTH OF MASSACHUSETTS :
REVISED BY COMMISSIONEHS APPOIKTED under a resolve of FEBRCARY 16, 1655,
AMENDED BY THE LEGISLATDRE, AND PASSED DECEMBER 28, 1859.
TO WHICH THE
CONSTITUTIONS OF THE UNITED STATES AND THE COMMONWEALTH OF MASSACHUSETTS
ARE PREFIXED;
AND A LIST OF ACTS PREVIOUSLY REPEALED,
A GLOSSAEY, AND INDEX, ARE ADDED.
EDITED AND PUBLISHED UNDER THE AUTnORITY OF CHAPTERS 138, HO,
AND 141 OF THE RESOLVES OF 1859.
1
BOSTON:
PUBLISHED BY WILLIAM WHITE,
STATE PI! INTER, 4 SPRING LANE.
I860.
^^^^ STATE LP^f^'^n^^mACHUSETTS
C.3 . OCT 22 mi
STATE Ko Kc POSTON
J<M.SS. Oi'-i'-iCiALS
EI, RCTROTTrKI) AT THE
BOSTON STKREOTYl'E FOUNDET.
PREFACE.
Ox the IGth day of February, 1855, pursuant to the recom-
mendation of commissioners appointed by the governor under a
resolve of the preceding year to report a plan for consolidating
and arranging the general statutes of the commonwealth, the legis-
lature passed a resolve requiring the governor, with the advice and
consent of the council, to appoint three commissioners "for consoli-
datin": and arrana-in"; the general statutes of the commonwealth
on the basis, plan, and general form and method of the Revised
Statutes," with authority to '• omit redundant enactments and those
which may have ceased to have any efiect or influence on existing
rights ; to reject superfluous words, and condense into as concise
and comprehensive a form, as is consistent with a fidl and clear
expression of the will of the legislature, all circuitous, tautological,
and ambiguous phraseology ; to suggest any mistakes, omissions,
inconsistencies, and imperfections which may appear in the laws
to be consolidated and arranged, and the manner in which tliey
may be corrected, supplied, and amended." By virtue of this resolve,
JOEL PARKER, of Cambridge,
WILLIAM A. RICHARDSON, of Lowell, and
ANDREW A. RICHMOND, of Adams,
were appointed and commissioned March 9, 1855. The commission-
ers immediately entered upon the discharge of their duties ; and,
(iU)
iv PREFACE.
having completed the same in the autumn of 1858, their report was
submitted in print to the legislature at the commencement of the
annual session in January, 1859, by Messrs. Parker and Richardson ;
Mr. Richmond having been prevented by illness from participating
in the work during the last year of its progress.
On the 23d day of February, 1859, resolves were passed provid-
ing for a special session of the legislature, to be commenced on the
first Wednesday of the next September, for the purpose of com-
pleting the revision, and also providing for the appointment of a
joint special committee, consisting of the president and eleven other
members of the Senate and the speaker and twenty-eight other
members of the House of Representatives, to examine and consider,
during the recess of the legislature, the report of the commissioners,
to incorporate therein all general laws passed by the legislature
at the annual session of that year, and with power to propose
such amendments and alterations in existing laws as the committee
might deem expedient.
The committee appointed under these resolves organized early
in April, immediately after the adjournment of the legislature, and
was in session about eighty days, exclusive of intervals of adjourn-
ment, holidays, and Sundays.
The committee reported in print, at the special session in Sep-
tember-, numerous amendments to the commissioners' report, incor-
porating the legislation of the previous session .and proposing many
changes in tlie existing laws.
The legislature commenced its special session on the first Wednes-
day of September, and at that session, on the 28th day of Decem-
ber, 1859, passed the following act, which is therein designated as
the GENERiU. Statutes.
PREFACE. V
By chapter 140 of the resolves of 1859, the undersigned were
appointed commissioners " to edit and superintend the printing
and pubhcation of the General Statutes of the commonwealth,
together with the Constitution thereof, the Constitution of the United
States, and such other additions as they deem expedient," and to
prepare marginal notes to the sections of the Statutes, and an
exact and copious Index to the whole.
The text of the Constitution of Massachusetts and of the Stat-
utes has been carefully compared with the rolls by the editors
personally. In the necessary haste in which the Statutes were
engrossed upon parchment during the last part of the special ses-
sion, some errors appear to have been made therein. These have
been noted by brackets, thus [ ], enclosing in Roman letters, like
the body of the text, any omitted word or words which should have
been engrossed upon the roll, and in Italics any erroneous or super-
fluous word or words found there ; but this does not apply to cases
where brackets are used in forms.
The marginal references to the statutes and decisions are taken
"chiefly from the commissioners' report; theT references to the acts
of the legislature of 1859, and to the later volumes of Gray's Ee-
ports, and a few other references having been added. The editors
have attempted to connect together, by cross references in the
margin, many of the provisions of law relating to the same subject.
A list of general acts passed subsequently to the passage of the
Revised Statutes and expressly repealed before the passage of the
General Statutes, with references to the repealing acts or sections,
has been added, as a useful appendage to chapter 182, in order that
the tact and time of the repeal of many laws not enumerated in
that chapter may be more easily ascertained.
o*
, y[ PREFACE.
In compliance with chapter 138 of the resolves of 1859, a Glos-
sary/ has been added, -which is made rather for popular than for
professional use, according to the supposed object of the resolve.
Much care and labor have been devoted to the Index, and it
is believed that it -will be found more full than that to any
former edition of the laws of this commonwealth.
The editors" trust that the short time allowed for printing the
volume and for preparing the Glossary and Index will be deemed
a sufficient excuse for any errors or imperfections which may be
discovered in their editorial labors.
WILLIAM A. RICHARDSON,
GEORGE P. SANGER.
Mai/, I860."
ANALYSIS
SEVERAL TITLES AND CHAPTERS
CONTAINED IN
THE GENERAL STATUTES
PART I.
OF THE INTERNAL ADMINISTRATION OF THE GOVERNJMENT.
TITLE I.
OF THE JURISDICTION OF THE COMMONWEALTH, LEGISLATURE, STATUTES, PUBLIC
REPORTS AND DOCUMENTS, STATE LIBRARY AND OTHER PUBLIC PROPERTY.
PAGE
Chapter 1 . — Of the Jurisdiction of the Commonwealth and Places ceded to the United States, 43
Chapter 2. — Of the Legi^^lature, 46
Chapter 3. — Of the Statutes, 49
Chapter 4. — Of Public Reports and Documents 52
Chapter 5. — Of the State Library and other Public Property 53
TITLE II.
OF ELECTIONS.
•
Chapter 6. — Of tlio Qualifications of Electors, 56
Chapter 7. — Of the Manner of conducting 'Elections and retuiTiing Votes 57
Chapter 8. — Of the Election of Governor and other State Officers 61
Chapter 9. — Of the Election of Representatives in Congress and Electors of President and
Yicc-Presidcnt, 67
Chapter 10. — Of the Election of District and County Officers 70
TITLE III.
OF THE ASSESSMENT AND COLLECTION OF TAXES.
Chapter 11. — Of the Assessment of Taxes 73
Chapter 12. — Of the Collection of Taxes 81
(vii)
VUl ANALYSIS — PART I.
TITLE IV.
PAOB
Chapter 13. — OF THE MILITIA, 88
TITLE V.
OF CERTAIN STATE OFFICERS AND MATTERS OF FINANCE.
Chapter 14. — Of certain State Officers 127
CiiAPTEK 15. — Of the Auditor, Treasurer, Land Agent, and Matters of Finance, 135
Chapter 16. — Of the State Board of Agriculture, 141
TITLE VI.
Chapter 17. — OF COUNTIES AND CERTAIN COUNTY OFFICERS 142
TITLE VII.
OF TOWNS AND CITIES.
Chapter 18. — Of the Powers of Towns, and the Election, Qualification, and Duties, of Tnvra
Officers, 156
Chapter 19. — Of certaui Powers and Duties of Cities, 166
Chapter 20. — Of the Census ' ... 167
Chapter 21. — Of the Registry and Returns of Births, Marriages, and Deaths, 168
Chapter 22. — Of Workhouses and Almsliouses 170
Chapter23. — Of Watch and Ward 173
Chapter 24. — Of Fires and Fire Departments, 175
Chapter 25. — Of Fences and Fence Viewers, Pounds, and Field Drivers, 182
TITLE VIII.
OF THE PUBLIC HEALTH AND BURIALS.
Chapter 26. — Of the Preservation of the Public Health, 187
Chapter 27. — Of the Promotion of Anatomical Science 195
Chapter 28. — Of Cemeteries and Burials, 196
TITLE IX. *
Chapter 29. — OF THE PUBLIC RECORDS 197
TITLE X.
OF PARISHES AND RELIGIOUS SOCIETIES ; AND OF RELIGIOUS, CHARITABLE, AND
EDUCATIONAL FUNDS AND ASSOCIATIONS.
Chapter 30. — Of Parishes and RcUgious Societies, . . .' 199
Chapter 31. — Of Donations and Conveyances for Pious and Charitable Uses, 205
Chapter 32. — Of Associations for Religious, Charitable, and Educational Purposes 207
Chapter33. — Of Public Libraries, 207
ANALYSIS — PART I. jx
TITLE XI.
OF PUBLIC INSTRUCTION AKD REGULATIONS RESPECTING CHILDREN.
PAOE
Chapter 34. — Of the Board of Education, 209
Chapter 35. — Of Teachers' Institutes and Associations, 211
Chapter 36. — Of the School Funds, 212
Chapter 37. — Of State Scholarships, 213
Chapter 38. — Of the PubUc Schools 215
Chapter 39. — Of School Districts, 220
Chapter 40. — Of School Registers and Returns 226
Chapter 41. — Of the Attendance of Children in the Schools 228
Chapter 42. — Of the EmplojTnent of Children and Regulations respecting them 229
TITLE XII.
OF WAYS, BRIDGES, PUBLIC PLACES, FERRIES, SEWERS, AND DRAINS.
Chapter 43. — Of the Laying out and Discontinuance of Highways, Town Ways, and Private
Ways 231
Chapter 44. — Of the Repairs of Ways and Bridges, 244
Chapter 45. — Of Regulations and By-Laws respecting Ways and Bridges 249
Chapter 46. — Of the Boundaries of Highways and other Public Places, and Encroachments
thereon, 251
Chapter 47. — Of Ferries 252
Chapter 48. — Of Sewers and Drains 253
TITLE XIII.
OF THE REGULATION OF TRADE IN CERTAIN CASES.
Chapter 49. — Of the Inspection and Sale of Provisions and other Merchandise 256
Chapter 50. — Of Sales by Auctioneers and Hawkers and Pedlers 280
Chapter 51. — Of Weights and Measures, 284
Chapter 52. — Of Shipping and Pilotage, 286
Chapter 53. — Of Money, Bonds, BUls of Exchange, and Promissory Notes 292
Chapter 54. — Of Agents, Consignees, and Factors, 294
Chapter 55. — Of Limited Partnerships 296
Chapter 56. — Of the unauthorized Use of Trade Marks and Names, 297
TITLE XIV.
OF CORPORATIONS AND PROPRIETORS OF COMMON LANDS.
Chapter 57. — Of Banks and Banking 299
Chapter 58. — Of Insurance Companies, 319
Chapter 59. — Of Loan and Fund Associations 334
Chapter 60. — Of Manufacturing and other Corporations organized under Special Charters, . . 336
Chapter 61. — Of Corporations organized under General Statutes 341
Chapter 62. — Of Turnpike, Canal, and Bridge Corporations, 343
Chapter 63. — Of Railroad Corporations 348
Chapter 64. — Of Telegraph Companies, 372
Chapter 65. — (Jf Aqueduct Corporations, ' 374
Chapter 66. — Of Agricultural and Horticultural Societies, 376
Chapter 67. — Of Proprietors of Wharves, General Fields, and Real Estate lying in common, . 379
Chapter 68. — Of the Powers, Duties, and Liabilities of Corporations, 384
B
X ANALYSIS — PART H,
TITLE XV.
OP THE INTERNAL POLICE OF THE C05BI0NWEALTH.
PAG£
Chapter 69. — Of the Settlement of Paupers, 390
Chapter 70. — Of the Support of Paupers by Cities and Towns 392
Chapter 71. — Of Alien Passengers and State Paupers, 395
Chapter 72. — Of the Maintenance of Bastard Children, 404
Chapter 73. — Of the State Lunatic Hospitals, i 406
Chapter 74. — Of County Keceptacles for Insane Persons, 411
Chapter 75. — Of the State Industrial School for Girls, . 413
Chapter 76. — Of the State Reform School for Boys, 417
Chapter 77. — Of the Law of the Road, 423
Chapter 78. — Of Timber afloat or cast on Shore, 424
Chapter 79. — Of Lost Goods and Stray Beasts, 425
Chapter SO. — Of Unclaimed Property transported by Common Carriers 426
Chapter 81. — Of Wrecks emd ShipwTecked Goods, 427
Chapter 82. — Of the Preservation of certain Birds and Animals 429
Chapter 83. — Of Fisheries, Kelp and Seaweed 431
Chapter 84. — Of the Observance of the Lord's Day, 434
Chapter 85. — Of Gaming, 435
Chapter 86. — Of the Manufacture, Sale, &c., of Intoxicatmg Liquors 437
Chapter 87. — Of the Suppression of Common Nuisances 453
Chapter 88. — Of Licenses and Municipal Regulations of Police 454
PART II.
OF THE ACQUISITION, THE ENJOYMENT, AND THE TRANSMISSION
OF PROPERTY, REAL AND PERSONAL; THE DOMESTIC RELA-
TIONS, AND OTHER MATTERS CONNECTED WITH PRIVATE
RIGHTS.
TITLE I.
OF REAL PROPERTY AND THE ALIENATION THEREOF.
Chapter 89. — Of Alienation by Deed; the Legal Formalities, Construction, and Operation, of
Deeds for the Conveyance of Lands, ^^■''
Chapter 90. — Of Estates in Dower, by the Curtesy, for Years, and at Will ; and General Pro-
visions concerning Real Estate, ■*'^^
TITLE II.
Chapter 91. — OF TITLE TO REAL PROPERTY BY DESCENT, *'3
ANALYSIS — PART II. XI
TITLE III.
PAGE
Chapter 92. — OF WILLS, 475
TITLE IV.
OF THE SETTLEMENT OF ESTATES OF DECEASED PERSONS, TRUSTS, ANT3 SPECIAL
PROVISIONS RELATING TO ESTATES, TRUSTS, AND GUARDIANSHIPS.
Chapter 93. — Of Letters Testamentary and Proceedings on the Probate of Wills, .... 481
Chapter 94. — Of Administration and tlie Distribution of Estates of Intestates, 482
Chapter 95. — Of Public Administrators, 485
Chapter 96. — Of Inventories, Allowances to Widows and Children, and Collection of the
Effects of Deceased Persons, 488
Chapter 97. — Of the Payment of Debts and Legacies, 490
Chapter 98. — Of the Accounts and Settlements of Executors and Administrators 494
Chapter 99. — Of Insolvent Estates 496
Chapter 100. — Of Trusts 500
Chapter 101. — Special Provisions relating to Estates, Trusts, and Guardianships, 503
TITLE V.
OF TITLE TO REAL PROPERTY BY SPECIAL PROVISIONS OF LAW.
Chapter 102. — Of Sales of Lands by Executors, Administrators, and Guardians 50;>
Chapter 103. — Of takiiig Land to satisfy Executions for Debt 516
Chapter 104. — Of Homesteads 524
TITLE VI.
Chapter 105. — OF THE PREVENTION OF FRAUDS AND PERJURIES, 527
TITLE VII.
OF THE DOMESTIC RELATIONS.
Ch-APTER 106. — Of JIarriage, 528
Chapter 107. — Of Divorce, 631
Chapter 108. — Of certain Rights and LiabiUties of Husband and Wife 537
Chapter 109. — Of Guardians and AVards 54l>
Chapter 110. — Of the Adoption of Children and Change of Names, 547
Chapter 111. — Of Masters, Apprentices, and Servants, 549
XU ANALYSIS — PART III.
PART III.
OF COURTS AND JUDICIAL OFFICERS AND PROCEEDINGS IN
CIVIL CASES.
TITLE I.
OF COURTS AND JUDICIAL OFFICERS.
PAGE
Chapter 112. — Of the Supreme Judicial Court, 552
Chaittee 113. — Of the Supreme Judicial Court — Equity Jurisdiction, 558
Chapter 114. — Of the Superior Court, 561
Chapter 115. — Of Matters common to the Supreme Judicial and Superior Courts, .... 5C5
Chapter 116. — Of Police Courts, 568
Chapter 117. — Of Probate Courts 574
Chapter 118. — Of Courts of Insolvency 579
Chapter 119. — Of Judges and Registers of Probate and Insolvency, 601
Chapter 120. — Of Justices of the Peace, 604
Chapter 121. — Of Clerks, Attorneys, and other Officers of Judicial Courts, 611
Chapter 122. — Special Provisions respecting Courts and the Administration of Justice, . . . 617
TITLE II.
OF ACTIONS AND PROCEEDINGS THEREIN.
Chapter 123. — Of the Commencement of Actions and Service of Process, 619
Chapter 124. — Of Arrest, Imprisonraeut, and Discharge, 632
Chapter 125. — Of Bail 642
Chapter 126. — Of Proceedings against Absent Defendants, and upon Insufficient Service, . . 645
Chapter 127. — Of Actions which survive, and the Death and Disabilities of Parties 64"
Chapter 128. — Of Actions by and against Executors and Administrators, 050
Chapter 129. — Of Pleadings and Practice, 652
Chapter 130. — Of Set-oif and Tender, ' 669
Chapter 131. — Of Witnesses and Evidence 672
Chapter 132. — Of Juries, 079
Chapter 133. — Of Judgment and Execution, 684
TITLE III.
OF REMEDIES RELATING TO REAL PROPERTY.
Chapter 134. — Of the AVrit of Entry and Petitions for the Settlement of Title, 691
Chapter 135. — Of the "Writ of Dower 697
Chapter 136. — Of the Partition of Lands 698
Chapter 137. — Of Forcible Entry and Detainei-, 707
Chapter 138. — Of Wa^te and Trespass on Real Estate, 708
Chapter 139. — Of Actions for Private Nuisances, 710
Chapter 140. — Of the Foreclosure and Redemption of Mortgages 711
Chapter 141. — Of Information for Intrusion and the Recovery of Lands by the Commonwealth, 717
ANALYSIS — PAET IV. XllI
TITLE IV.
OF CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES.
PAGE
Chapter 142. — Of Trustee Process, 720
Chapter 143. — Of Replevin of Property, 730
Chapter 144. — Of Habeas Corpus, Personal Replevin, and Personal Liberty 733
Chapter 145. — Of Audita Querela, Certiorari, Mandamus, and Quo Warranto, 742
Chapter 146. — Of Writs of Error and Review 745
Chapter 147. — Of Reference to Arbitration by Agreement before a Justice of the Peace, . . 749
Chapter 148. — Of Improving Meadows and Swamps, 750
Chapter 149. — Of the Support and Regulation of Mills * 754
Chapter 150. — Of Liens on Buildings and Land 761
Chapter 151. — Of Mortgages, Pledges, and Liens upon Personal Property, 766
Chapter 152. — Of Recognizances for Debts 770
Chapter 153. — Of Seizing and Libelling Forfeited Goods 772
TITLE V.
OF THE Ll.MlTATION OF ACTIONS.
^jiAPTER 154. — Of the Limitation of Real Actions and Rights of Entry 774
Chapter 155. — Of the Limitation of Personal Actions, 777
TITLE VI.
OF COSTS AND THE FEES OF CERTAIN OFFICERS.
Chapter 156. — Of Costs in Civil Actions, 780
Chapter 157. — Of the Fees of certain Officers 783
PART IV.
OF CRIMES, PUNISHMENTS, PROCEEDINGS IN CRIMINAL CASES,
AND PRISONS.
TITLE I.
OF CRIMES AND PUNISHMENTS.
Chapter 158. — Of the Rights of Persons accused 789
Chapter 159. — Of Offences against the Sovereignty of the Commonwealth, 790
Chapter 160. — Of OffenSes against the Person 791
Chapter 161. — Of Offences agamst Property, 795
Chapter 162. — Of Forgery and Offences against the Currency S07
b
XIV ANALYSIS — PART V.
FADE
Chapter 163. — Of Offences against Public Justice, 811
Chapter 164. — Of Offences against the Public Peace, 815
Chapter 165. — Of Offences against Chastity, Morality, and Decency 817
Chapter 166. — Of Offences against the Public Health, 822
Chapter 167. — Of Offences against Public Policy 823
Chapter 168. — Of Felonies, Accessories, Abettors, and Attempts to commit Crimes, .... 825
TITLE II.
OF PROCEEDINGS IN CRIMINAL CASES.
Chapter 169. — Of Proceedings to prevent the Commission of Crimes 827
Chapter 170. — Of Search Warrants, Rewards, Arrest, Examination, Commitment, and Bail, . 829
Chapter 171. — Of Indictments, Prosecutions, and Proceedings before Trial 336
Chapter 172. — Of Trials, 840
Chapter 173. — Of Appeals, New Trials, and Reports 842
Chapter 174. — Of Judgment and Execution, 844
Chapter 175. — Of Inquests on Dead Bodies, 848
Chapter 176. — Of Fines, Forfeitures, and Costs, 850
Chapter 177. — Of Fugitives from Justice and Pardons, 853
TITLE III.
OF PRISONS AND IMPRISONMENT.
Chapter 178. — Of Jails and Houses of Correction, 856
Chapter 179. — Of the State Prison, 869
Chapter ISO. — Of the Transfer of Lunatics and Discharge of Poor Convicts, 877
PART V.
OF THE GENERAL STATUTES AND THE REPEAL OF EXISTING
LAWS.
Chapter 181. — Of the General Statutes and their Effect 880
Chapter 182. — Of the Express Repeal of Existing Laws 881
CONSTITUTIONS
OF THE
UNITED STATES OF AMERICA,
AND OF THE
COMMONWEALTH OF MASSACHUSETTS.
(XT)
CONSTITUTION
OF THE
UNITED STATES OF AMERICA.
PREAMBLE.
Objects of the Constitution.
ARTICLE I.
Section
1. Le'^islative powers, in whom vested.
2. House of representatives, how and by
whom chosen.— Qualitications of a repre-
sentative. — Rcpresent^itives and direct tax-
es, how apportioned. — Census. — Vacancies
to be filled.— Power of choosing officers,
and of impeachment.
3. Senators, how and by whom chosen. —
How classified. — State executive to make
temporary appointments, in case, &c. —
Qualifications of a senator.— President of
the senate, his ri^ht to vote. — President
pro tern, and other officers of senate, liow
chosen. — Power to try impeachments. —
When president is tried, chief justice to pre-
side.— Sentence.
4. Times, &c. of holding elections, how pre-
scribed.— One session in each year.
5. Membership.— Quorum.— Adjournments.
— Rules.- Power to puuish or expel. —
Journal.- Time of adjournment limited,
unless, &c.
6. Compensation.— Privileges.- Disqualifica-
tion in certain cases.
7. House to originate all revenue bills. — Veto.
— Rill may be passed by two thirds of each
house, notwithstanding, &c. — Bill not re-
turned in ten days. — Provision as to all or-
ders, &c. except, &c.
8. Powers of congress.
9. Provision as to migration or importation of
certain persons. — Habeas corpus. — Bills of
attainder, «fec. — Taxes, how apportioned. —
No export duty. — No commercial prefer-
ences.—No money drawn from treasury,
unless, &c.— No titular nobility. — Officers
not to receive presents, unless, &c.
10. States prohibited from the exercise of cer-
tain powers.
ARTICLE II.
Sectiox
1. President and vice president, their term of
office. — Electors of president and vice pres-
ident, number, and how appointed. — Elec-
tors to vote on same day. — Qualification
of president. — On whom ius duties devolve
in C4ise of his removal, death, &c — Presi-
dent's compensation. — His oath.
Section
2. President to be commander in chief. — He
may require opinion of, &c. and may pardon.
— Treaty making power. — Nomination of
certain officers. — When president may fiU
vacancies.
3. President shall communicate to congress. —
He may convene and adjourn congress, iu
case, &c.; shall receive ambassadors, exe-
cute laws, and commission officers.
4. All civil offices forfeited for certain crimes.
ARTICLE III.
Section
1. Judicial power. — Tenure. — Compensation.
2. Judicial power, to what cases it extends. —
Original jurisdiction of supreme court. —
Appellate. — Trial by jury, except, &c. —
Trial, where.
3. Treason defined. — Proof of. — Punish-
ment of.
ARTICLE IV.
Section
1. Credit to be given to public acts, &c. of
every state.
2. Privileges of citizens of each state. — Fugi-
tives from justice to be delivered up. — Per-
sons held to service, having escaped, to be
delivered up.
3. Admission of new states. — Power of con-
gress over territory and other property.
4. Republican form of government guarantied.
— Each state to be protected.
AlVriCLE V.
Constitution, how amended. — Proviso.
ARTICLE VL
Certain debts, &c. adopted. — Supremacy of con-
stitution, treaties and laws of the United States.
— Oath to support constitution, by whom ta-
ken.— No religious test.
ARTICLE VII.
"What ratification shall establish constitution.
AMENDMENTS.
Article
1. Religions establishment prohibited.— Free-
dom of speech, of the press, and right to
petition.
2. Riglit to keep and bear arms.
3. No soldier to be quartered in any bouse,
unless, &c.
(1)
CONSTITUTION OF THE UNITED STATES.
Article of Amendment.
4. Right of search aud seizure regfulated.
5. Provisions concerning prosecutions, trials,
and punishments. — Private property, not to
be taken for public use, without, &c.
6. l'\irther provisions respecting criminal
prosecutions.
7. Right of trial by jury secured.
Article of- Amendment.
8. Bail, fines, and punishments.
9. Rule of construction.
10. Same subject.
11. Same subject.
12. Mannerofchoosingpresidentand vice pres-
ident.
Preamble. WE the people of tlie United States, in order to form a more perfect
iwiieaV^3(H union, establish justice, insure domestic tranquillit}^, provide for the
4 Wheat. 316. common defence, promote the general welfare, and secure the blessings
of liberty to ourselves and our ])ostenty, do ordain and establish this
Constitution for the United States of America.
9 Wheat. 1.
Legislative
p.>wer8, in
whom vested.
House of repre-
H'-ntatlves, how
ji'.ul by whom
chosen.
Qualifications
ui a representa-
tive.
Kcpresenta-
tives and direct
tjixes, how ap-
portioned.
Censaa.
Vacancies to be
filled.
Power of choos-
ing officers, and
of mipeach-
ment.
Senators, how
and by whom
chosen.
Uow classified.
State executive
tn make tempo-
rary appoint-
ments, in case,
ARTICLE I.
Section 1. All legislative powers herein granted shall be vested in
a congress of the United States, which shall consist of a senate and
house of representatives.
Sect. 2. The house of representatives shall be composed of members
chosen every second year by the people of the several states, and the
electors in each state shall have 'the quahfications requisite for electors
of the most numerous branch of the state legislature.
No person shall be a representative who shall not have attained to
the age of twenty-five years, and been seven years a citizen of the
United States, and who shall not, when elected, be an inhabitant of that
state in which he shall be chosen.
Rejiresentatives and direct taxes shall be apportioned among the
several states which may be included within this Union, according to
their resjiectivc numbers, which shall be determined by adding to the
whole number of free persons, including those bound to senicc for a
temi of years, and excluding Indians not taxed, three fifths of all other
persons. The actual enumeration shall be made within three years
after the first meeting of the congress of the United States, and within
every subsequent term of ten years, in such manner as they shall by
law direct. The number of representatives shall not exceed one for
every thirty thousand, but each state shall have at least one representa-
tive ; and until such enumeration shall be made, the state of New Hamp-
shire shall be entitled to choose three, Massachusetts eight, Rhode Island
and Providence Plantations one, Connecticut five. New York six, New
Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia
ten, Noith Carolina five. South Carolina five, and Georgia three.
When vacancies happen in the representation from any state, the
executive authority thereof shall issue writs of election to fill such
vacancies.
The house of representatives shall choose their speaker and other
officers ; and shall have the sole power of impeachment.
Sect. 3. The senate of the United States shall be composed of two
senators from each state, chosen by the legislature thereof, for six years;
and each senator shall have one vote.
Immediately after they shall be assembled in consequence of the first
election, they shall be divided as equally as may be into three classes.
The seats of the senators of the first class shall be vacated at the expi-
ration of the second year, of the second class at the expiration of the
fourth year, and of the third class at the expiration of the sixth year,
so that one third maybe chosen every second year; and if vacancies
happen by resignation, or otherwise, during the recess of the legislature
of any state, the executive thereof may make temporary appointments
until the next meeting of the legislature, which shall then till such
vacancies.
CONSTITUTION OF THE DNITED STATES. 3
No person shall be a senator who shall not have attained to the age Qualifications
of thirty years, and been nine years a citizen of the United States, and "'" ^'-■"""■'■
who shall not, when elected, be an inhabitant of that state for which
he shall be chosen.
Tlie vice president of the United States shall be president of the President of the
senate, but shall have no vote, unless they be equally divided. SToS.'''"'"'"
The senate shall choose their other officers, and also a i)resident jyro President;)™
tempore, in the absence of the vice president, or when he shall e.\ercise oX-ers'ot^seu'^
the office of presiilent of the United States. ate,iiow eiiosen.
The senate shall have the sole power to try all impeachments. When Power to try
sitting for that purpose, they shall be on oath or affirmation. When ^'|;;i^"',"'™.'^t
the president of the United States is tried, the chief justice shall pre- is tried'!'cUirf°
side : and no person shall be convicted without the concurrence of two J^"^''"^ *° P""
thirds of the members present.
Judgment in cases of impeachment shall not extend further than to Sentence,
removal from office, and disqualification to hold and enjoy any office of
honor, trust or profit under the United States : but the party convicted
shall nevertheless be liable and subject to indictment, trial, judgment
and punisliment, according to law.
Sect. 4. The times, ])laces and manner of holding elections for sen- Times, &c. of
ators and representati\es, shall be prescribed in each state bj- the legis- uousTEo'w pi-c-
lature thereof; but the congress may at any time by law make or alter scribed,
such regulations, except as to the ])laces of choosing senators. isiii.'i;, §■>. ^^'
The congress shall assemble at least once in every year, and such One session i;i
meeting shall be on the first Monday in December, unless they shall by '^'"^'' ''^'""'
law appoint a diffi'rent day.
Sect. 5. Each house shall be the judge of the elections, returns and Membership,
qualifications of its own members, and a majority of each sliall consti-
tute a quorum to do business ; l)ut a smaller number may adjouiTi from Quorum,
day to day, and may be authorized to comjiel the attendance of absent Adjournments,
members, in such manner, and luider such penalties as each house may
provide.
Each house may determine the rules of its proceedings, and punish Rules. Power
its members for disonlerly behavior, and, with the concurrence of two '"^p"^'*'> ""''■''-
thirds, ex])el a member.
Each house shall keep a journal of its proceedings, and from time to Journal,
time publish the same, excepting such parts as may in their judgment
require secrecy; and the yeas and nays of the members of either house
on any question shall, at the desire of one fifth of those present, be en-
tered on the journal.
Neither house, during the session of congress, shall, without the con- Time of ad-
sent of the other, adjourn for more than three days, nor to any other ited™Si'ie8s''Sc
place than that in wliieh the two houses shall be sitting.
Sect. 6. The senators and representatives shall receive a compen- Compensation,
sation for their services, to be ascertained by law, and paiil out of the
treasury of the United States. They shall in all cases, except treason. Privileges,
felony and breach of the peace, be privileged from arrest during their
attendance at the session of their respective houses, and in going to and
returning from the same ; and for any speech or debate in either house,
they shall not be questioned in any other jilace.
No senator or representative shall, during the time for which he was pisquaUfieation
elected, be appointed to any civil office under the authority of the '" «"tain cases.
United States, which shall have been created, or the emoluments
whereof shall have been increased during such time; and no person
holding any office under the United States, shall be a member of either
house during his continuance in office.
Sect. 7. All bills for raising revenue shall originate in the house of House to origi-
ref)resentatives ; l)ut the senate may propose or concur with amend- bills,
ments as on other bills.
CONSTITUTION OF THE UNITED STATES.
Veto.
Bill may be
passed by two
thirds of each
bouse, notwitb-
stauding, &c.
Hill not return-
id in ten days.
Provision as to
all orders, &c.
except, &c.
Powers of con-
gress.
5 Wheat. 317.
12 Wheat. 419.
9 Wheat. 1.
12 Pet. 72.
2 Wheat. 259.
4 Wheat. 132.
12 Wheat. 213.
4 Gray, 559.
5 Wheat. 153.
5 Wheat. 1.
12 Wheat. 19.
1 Cranch. 137.
9 Whoiit. 7.3S.
12 Wheat. 136.
Every bill which shall have passed the house of rejircsentatives and
the senate, shall, before it become a law, be presented to the president
of the United States ; if he approve he shall sign it, but if not he shall
return it, with his objections to that house in which it shall have origi-
nated, who shall enter the objections at large on their journal, and pro-
ceed to reconsider it. If after such reconsideration two thirds of that
house shall agree to pass the bill, it shall be sent, together with the
objections, to the other house, by which it shall likewise be reconsid-
ered, and if approved by two thirds of that house, it shall become a
law. But in all such cases the votes of both houses shall be detennined
by yeas and n.ays, and the names of the persons voting for and against
the bill shall be entered on the journal of each house res]iectively. If
any bill shall not be returned by the president within ten days (Sundays
excepted) after it sh.all have been presented to him, the same shall be a
law, in like manner as if he had signed it, unless the congress by their
adjournment prevent its return, in which case it shall not be a law.
Every order, resolution, or vote to which the concurrence of the sen-
ate and house of representatives may be necessary (except on a question
of adjournment) shall be presented to the president of the United
States ; and before the same shall take effect, shall be apjirovcd by him,
or being disapjiroved by him, shall be re]iassed by two thirds of the
senate and house of representatives, according to the rules and Umita-
tions prescribed in the case of a bill.
Sect. 8. The congress shall have power — To lay and collect taxes,
duties, imjjosts and excises, to ]>ay the debts and provide for the com-
mon defence and general welfare of the United States ; but all duties,
imposts and excises shall be uniform throughout the United States ; —
To borrow money on the credit of the United States ; — To regulate
commerce with foreign nations, and among the several states, and with
the Indian tribes; — To establish an uniform rule of naturalization, and
uniform l.iws on the subject of bankruptcies throughout the United
States; — To coin money, regulate the value thereof, and of foreign
coin, and fix the standard of weights and measures; — To provide
for the ])unishment of counterfeiting the securities and current coin of
the United States; — To establish post offices and j)ost roads; — To
promote the progress of science and useful arts, by securing for limited
times to authors and inventors the exclusive right to their resjiective
writings and discoveries ; — To constitute tribunals inferior to the su-
preme court; — To define and punish piracies and felonies committed
on the high seas, and offences .against the law of nations; — To declare
war, grant letters of marque and reprisal, and make rules concerning
captures on land and w.ater; — To raise and support armies, but no
appropriation of money to that use shall be for a longer term than two
years; — To provide and maintain a navy; — To make rules for the
government and regulation of the land and naval forces; — To provide
for calling forth the militia to execute the laws of the union, suppress
insurrections, and repel invasions; — To provide for organizing, arming,
and discijilining, the militia, and for governing such jiart of them as
may be cm|>loyed in the service of the United States, reserving to the
states res])ectively, the appointment of the officers, and the authority of
training the militia according to the diseijiline prescribed by congress;
— To exercise exclusive legislation in all cases whatsoever, over such
district (not exceeding ten miles square) as may, by cession of particu-
lar states, and the acceptance of congress, become the seat of the gov-
ernment of the United States ; and to exercise like authority over all
places purchased by the consent of the legislature of the state in which
the same shall be, for the erection of forts, magazines, arsenals, dock
yards, and other needful buildings; — And to make all laws which shall be
necessary and proper for carrying into execution the foregoing powers,
CONSTITUTION OF THE UNITED STATES. 5
and all other powers vested by this constitution in the government of
the United States, or in any department or officer thereof.
Sect. 9. The mi^^ration or importation of such persons, as any of the Provision as to
states now existing "sliall think proper to admit, shall not be prohibited "ujortatiou'^of
by the congress ])rior to the year one thousand eight hundred and eight, certain persons,
but a tax or duty may be imposed on such importation, not exceeding
ten dollars ibr each person.
The pi-ivilege of the writ of habeas corpus shall not be suspended, Habeas corpus.
unless when in cases of rebellion or invasion the public safety may * Crancu, 75.
require it. , , , , , Bills of attain
No bill of attainder or ex post facto law shall be passed. der, &c.
No cajjitation, or other direct, tax, shall be laid, unless in proportion ioHvheat^'2i3.
to the census or enumeration herein before directed to be taken. Taxes, how ap-
No tax or duty shall be laid on articles exported from any state. Koexportduty.
No preference shall be given by any regulation of commerce or reve- No commercial
nue to the ports of one state over those of another: nor shall vessels P^'^f'^reQces.
bound to, or from, one state, be obliged to enter, clear, or pay duties in
another.
No money shall be drawn from the treasury, but in consequence of No monoy
appropriations made by law ; and a regular statement and account of trcSury,"im-
the receipts and expenditures of all public money shall be published less, &c.
from time to time.
No title of nobility shall be granted by the United States: and no No titular no-
person holding any office of jjrofit or trust under them, shall, without officers, not to
the consent of the consress, accept of any present, emolument, office, or receive pres-
■ ■ - cuts lltllOHR A.f
title, of any kind whatever, from any king, jirince, or foreign state. ' ' '
Sect. 10. No state shall enter into any treaty, alliance, or confeder- states prohibit-
ation ; grant letters of marque and reprisal; coin money; emit bills of ereiseofcertaiu
credit ; make any thing but gold and silver coin a tender in pa^nnent ?,"«''['':,- 4™
of debts; pass any bill of attainder, ex ^yost facto law, or law impairing sGray, 2y?.
the obligation of contracts, or grant any title of nobility. No state
shall, without the consent of the congress, lay any imposts or duties on 12 Wheat. 419.
im])orts or exports, except what may be absolutely necessary for exe-
cuting its inspection laws : and the net produce of all duties and im-
posts, laid by any state on imports or exports, shall be for the use of
the treasury of the United States ; and all such laws shall be sulyect to
the revision and control of the congress. No state shall, without the
consent of congress, lay any duty of tonnage, keep troojjs, or shijis of
war in time of peace, enter into any agreement or compact with another
state, or with a foreign power, or engage in war, unless actually invaded,
or la such imminent danger as will not admit of delay.
ARTICLE n.
Sect. 1. The executive power shall be vested in a Presiilent of the President and
United States of America. He shall hold his office during the term of '^^^It^'^os'
four years, and, together with the vice president, chosen for the same office,
term, be elected, as follows :
Each state shall appoint, in such manner as the legislature thereof Electors of pre-
may direct, a number of electors, equal to the whole number of senators presWent, num-
and rejjresentatives to which the state may be entitled in the congress : ber, aud how
But no senator or representative, or person holding an office of trust or
profit under the United States, shall be appointed an elector.
[The electors shall meet in their respective states, and vote by ballot for two persons, Amendment
of whom one at least shall not be an inhabitant of the same state with themselves. ?^"'i' "ubsti-
And they shall make a list of all the persons voted for, and of the number of votes for p^'iig^aph.
each ; which list they shall sign and certify, and transmit sealed to the seat of the gov-
ernment of the United States, directed to the president of the senate. The president
of the senate shall, in the presence of the senate and house of representatives, open all
the certificates, and the votes shall then be counted. The person having the greatest
1*
6 CONSTITUTION OF THE UNITED STATES.
number of vote; sliall b? the president, if such number be a majority of the whole num-
ber of electors appointed ; and if there be more than one who have such majority, and
have an equal number of votes, then the house of representatives shall inmiediately
choose by ballot one of them for president ; and if no person have a majority, then
fi-om the five highest on the list the said house shall in like manner choose the presi-
dent. But in choosing the president, the votes shall be taken by states, the represen-
tation from each state having one vote ; a quorum for this purpose shall consist of a
member or members from two thirds of the states, and a majority of all the states shall
be necessary to a choice. In every case, after the choice of the president, the person
having the greatest number of votes of the electors shall be the vice president. But
if there should remain two or more who have equal votes, the senate shall choose from
them by ballot the vice president.]
Electors tovote The coiigress may determine the time of choosing the electors, and
11° ™.'"statutes, ^^^'^ ^^y O" which they shall give tlieir votes ; which day shall be the
1845, 1. same throughout the United States.
Quaiiiications No person except a natural born citizen, or a citizen of the United
oi president. States, at the time of the adoption of this constitution, shall be eligible
to the office of president ; neither shall any person be eligible to that
office who shall not have attained to the age of thirty-fi\e years, and
been fourteen years a resident within the United States.
Onwbomhis In case of the removal of the ])resident from office, or of his death,
iu'caBeonlia're- I'^siguation, Or inability to discharge the jjowers and duties of the said
moviii, death, office, the same shall devolve on the vice president, and the congress
ij?'s. .statutes, >"'iy by law provide for the case of removal, death, resignation, or ina-
1792, 8, §10. bility, both of the president and vice president, declaring what officer
shall then act as president, and such officer shall act accordingly, until
the disability be removed, or a president shall be elected.
ProBiikut's The president shall, at stated times, receive for his services, a eom-
conipensajwn. pensation, which shall neither be increased nor diminished during the
i;93, 9. ' period for which he shall have been elected, and he shall not receive
1 ■ . 7,§ i. ^yitiiin that period any other emolument from the United States, or any
of them.
Before he enter on the execution of his office, he shall take the fol-
lowing oath or affirmation : —
His oath. "I do solemnly swear (or affinn) th.at I will foithfully execute the
office of president of the United States, and will to the best of my abil-
ity, preserve, jirotect and defend the constitution of the United States."
President to be Sect. 2. The president shall be commander in chief of the army
ohfcf."""''" '° f'ncl navy of the United States, and of the militia of the several states,
He m.iy rpqniro wlicn Called into the actual service of the United States ; he may require
aud'may"p;ir-'^ ' ^^c Opinion, in Writing, of the princijial officer in eadi of the executive
dou. departments, u]ion any subject relating to the duties of their respective
offices, and he shall have power to grant reprieves and jiardons for
offences against the United States, except in cases of impeachment.
Trenty-makiii? He shall have power, by and vf'ith the advice and consent of the sen-
?Cranch. 137. 'ite, to make treaties, provided two thirds of the senators i)rescnt concur ;
2 Pet. L'rA and he shall nominate, and by and with the advice and consent of the
13 Pet'. 4I5'. senate, shall appoint ambassadors, other public ministers and consuls,
judges of the supreme court, and all other officers of the United States,
whose appointments are not herein otherwise provided for, and which
shall be established by law : but the congress may by law vest the ap-
1 Pet 511. jiointment of such inferior officers, as they think proper, in the president
13 Pet. MO. alone, in the courts of law, or in the heads of departments.
When president The jjresidcnt shall have power to fill up all vacancies that may hap-
may fiu vacan- ^^^^^ during the rcccss of the senate, by granting commissions which
shall expire at the end of their next session.
Tresidont Bimii Sect. 3. He shall from time to time give to the congress infonnation
T.'^.^ail''"^^ ^ of the state of the Union, and recommend to their consideration such
con^rLoB. 1111-1 1 T 1
He may con- mcasurcs as he shall judge necessary and expedient ; he may, on extraor-
Umrn'coii^'Tess binary occasions, convene both houses, or either of them, and in case of
in case, &c. ' disagreement between them, with respect to the time of adjournment,
Nomination of
certain otficers.
CONSTITUTION OF THE UNITED STATES. 7
he may adjourn tliem to such time as he shall think proper; he shall -Shall receive
receive ambassadors and other public ministers; he shall take care that ex'ecute'liiws,'
the laws he I'aitht'ully executed, and shall commission all the officers of "'i;' '■»m""8«on
Tx ■ T -. officers.
the United htates.
Sect. 4. The president, vice president, and all civil officers of the ah civil offices
United States, shall be removed from office on impeachment for, and l.^'il^'irimes'] '''''''
conviction of, treason, briber)-, or other high crimes and misdemeauors.
ARTICLE III.
Sect. 1. The judicial power of the United States, shall be vested in Judicial power.
one supreme court, and in sucli inferior courts as the congress may from
time to time ordain and establish. The judges, both of the sujireme Tenure,
and inferior courts, shall hold their offices during good behavior, and
shall, at stated times, receive for their services, a compensation, which Compensation,
shall not be diminished during their continuance in office.
Sect. 2. The judicial power shall extend to all cases, in law and Judicial power,
equity, arising under this constitution, the laws of the United States, extends.
and treaties made, or which shall be made, under their authority; — to i cr,ll;ci,"'i.i-
all cases affi'cting ambassadors, other public ministers, and consuls; — to ii w'heat. W.
all cases of admiralty and maritime jurisdiction; — to controversies to }-/p*.i.*05^.
which the United States shall be a party; — -to controversies between 5 Pet. i.
two or more states; — between a state and citizens of another state; — ^^^e amen men
between citizens of diffi^rent states, — between citizens of the same
state claiming lands under grants of diffi>rent states, and between a
state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, Oriffinaljuris-
and those in which a state sliall be a party, the supreme court sliall have prcwraurt!
original jurisdiction. In all the other cases before mentioned, the su- Appellate.
preme court shall have a]ipellate jurisdiction, Ijoth as to law and fact, { wueat'aot.
with such exceptions, and under such regulations as the congress shall
make.
The trial of all crimes, except in cases of imjieachment, shall be by Trial by jury,
jury; and such trial shall be held in the state where the said crimes m"^'**'?'''
shall have been committed ; but when not committed within any state,
the trial shall be at such place or places as the congress may by law
liave directed.
Sect. 3. Treason against the United States, shall consist only in lev- Treason de-
ying war against them, or in adhering to their enemies, giving them aid f p^n. jr,.
and comfort. No person shall be convicted of treason unless on tlie 2 Dnii. ms.
testimony of two witnesses to the same overt act, or on confession in icrancii, 4ro.
open court.
The congress shall have power to declare the punishment of treason, Punishment of.
but no attainder of treason shall work corruption of blood, or forfeiture
except during the life of the person attainted.
ARTICLE W. ST.'iro^''""
Sect. 1. Full faith and credit shall bo given in each state to the every state.
public acts, records, and judicial proceedings of cveiy other state. And J.;,!^' ?','■'''""■'''
the congress may by general laws jirescribe the manner in which such iwn.'sri.'
acts, records and proceedings shall be proved, and the effect thereof. I ^ylU'^^fJo^l'
Sect. 2. The citizens of each state shall be entitled to all privileges Priviies^es of
and immunities of citizens in the several states. etons ofeach
A person charged in any state with treason, felony, or other crime, 3'>."'''''2Zi'
who shall flee from justice, and be found in another state, shall on de- ' ^' ' •
mand of the executive authority of the state from which he fled, be de- jJi's^eeToteT-
livered up, to be removed to the state having jurisdiction of the crime. Uvered up.
CONSTITUTION OF THE UNITED STATES,
PerRons held to
service, having
escaped, to be
delivered up.
U. S. Statutes,
1793, 7.
ISSO. 60.
10 Pet. S-TO.
Admission of
new states.
Power of con-
gress over terri-
tory and other
property.
Republican
form of govern-
ment guaran-
teed.
Each state to be
protected.
No person held to service or labor in one state, under the laws there-
of, escaping into another, shall, in consequence of any law or regulation
therein, be discharged Irom such service or labor, but shall be delivered
up on claim of the party to whom such service or labor may be due.
Sect. 3. New states may be admitted by the congress into this
Union; but no new state shall be formed or erected within the jurisdic-
tion of any other state ; nor any state be formed by the junction of two
or more states, or parts of states, without the consent of the legislatures
of the states concerned as well as of the congi'ess.
The congress shall have power to dispose of and make all needful
rules and regulations respecting the territory or other property belong-
ing to the United States ; ami nothing m this constitution shall be so
construed as to prejudice any claims of the United States, or of any
particular state.
Sect. 4. The United States shall guarantee to every state in this
Union a republican form of government, and shall protect each of them
against invasion, and on application of the legislature, or of the execu-
tive (when the legislature cannot be convened) against domestic violence.
Constitution,
how amended.
Proviso.
ARTICLE V.
The congress, whenever two thirds of both houses shall deem it
necessary, shall propose amendments to this constitution, or, on the ap-
plication of the legislatures of two thirds of the several states, shall call
a convention for proposing amendments, which, in either case, shall be
valid to all intents and purposes, as jiart of this constitution, when rati-
fied by the legislatures of three fourths of the several states, or by con-
ventions in three fourths thereof, as the one or the other mode ol' ratifi-
cation may be proposed by the congress; provided that no amendment
which may be made prior to the year one thousand eight hundred and
eight shall in any manner affect the first and fourth clauses in the ninth
section of the first article ; and that no state, without its consent, shall
be deprived of its equal suffrage in the senate.
ARTICLE VI.
All debts contracted and engagements entered into, before the adop-
tion of this constitution, shall be as valid against the United States
under this constitution, as under the confederation.
This constitution, and the laws of the United States which shall be
made in pursuance thereof; and all treaties made, or Avhich sliall be
made, under the authority of the United States, shall be the sujireme
law of the land; and the judges in every state shall be bound thereby,
any thing in the constitution or laws of any state to the contrary not-
withstanding.
The senators and representatives before mentioned, and the members
of the several state legislatures, and all executive and judicial oflicers,
both of the United States and of the several states, shall be liound by
oath or affirmation, to support this constitution ; but no religious test
shall ever be recjuired as a qualification to any oflice or public trust under
the United States.
ARTICLE VII.
What ratifies- The ratification of the conventions of nine states, shall be sufficient
ii"h constitu-*'^ for the establishment of this constitution between the states so ratifying
tiou. the same.
Certain debts,
&c. adopted.
Supremacy of
constitution,
treaties and
laws of the U.
States.
Oath to support
constitution, by
whom taken.
No religious
test.
CONSTITUTION OF THE UNITED STATES. y
ARTICLES
IN ADDITIOX TO, AND AMENDMENT OF,
The constitution of the United States of America, proposed hy congress^
and ratified by the legislatures of the several states, pursuant to the
fifth article of the original constitution.
Article I. Congress shall make no law respecting an establisliment Religious cstab-
of religion, or prohibiting the free exercise thereof; or abridging tlie free- h'iVited? ""^
dom of siieech, or of the iiress : or the rioht of the people iieaceably to I'lwdom of
assemble, and to petition tlie government lor a redress oi grievances. pn-ss, ana rigiit
Art. II. A well regulated militia, being necessary to the security of a l°i,'J}",t''fo'keep
free state, the right of the peojjle to keep and bear arms, shall not be mS bear arms,
infringed.
Art. III. No soldier shall, in time of peace be quartered in any house. No soldier to be
without the consent of the owner, nor in time of war, but in a luauner aiJy'u'crusel'im-
to be prescribed by law. ifs's. &<=•
Art. IV. The right of the people to be secure in their persons, houses, Right of search
papers, and effects, against unreasonable searches and seizures, shall not uiated. °
be violated, and no warrants shall issue, but upon probable cause, sup- sCranch, 448.
ported by oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.
Art. V. No person shall be held to answer for a capital, or otherwise Provisions con-
infamous crime, unless on a presentment or indictment of a grand jury, c'utioaf, trials
except in cases arising in the land or naval forces, or in the militia, when ■">'' punjsh-
iii actual service in time of war or public danger; nor shall any person
be subject for the same offence to be twice put in jeopardy of life or a Sumncr, 19.
limb ; nor shall be comjiclled in any criminal case to be a witness against „ . . ,
himself, nor be dejirived of life, liberty, or property, without due [irocess ty, not to be
of law: nor shall private property be taken lor public use, without just usp^ithout Ac"
compensation. 7 I'et. 243.
Art. VI. In all criminal prosecutions, the accused shall enjoy the right Furtbcr proyis-
to a speedy and public trial, by an impartial jury of the state and dis- !■"",„ lifaipJoee^
triet wherein the crime shall have been committed, which district shall cutions.
have been previously ascertained by law, and to be infoniied of the na-
ture and cause of the accus.ation ; to be confronted with the witnesses
against him; to have cominilsory process for obtaining witnesses in his
favor, and to have the assistance of counsel for his defence.
Art. VII. In suits at common law, where the value in controversy Right of trial by
shall exceed twenty dollars, the right of trial by jury shall be preser\'ed, '^'fl^''^^"'^'
and no fact tried by a jury shall be otherwise re-examined in any court s Gray, 144.
of the United States, than according to the rules of the common law.
Art. VIII. Excessive bail shall not be required, nor excessive fines Haii, fines, and
imposed, nor cruel and unusual ]ninishments inflicted. 6 «rav™4™!^'
Art. IX. The enumeration in the constitution, of certain rights, shall Rule 6/ con-
not be construed to deny or disparage others retained by the people. struction.
Art. X. The powers not delegated to the United States by the con- Same subject,
stitution, nor prohibited by it to the states, are reserved to the states ^Gray, 208.
re.spectively, or to the people.
Art. XI. The judicial power of the United States shall not be eon- Same subject,
strued to extend to any suit in law or equity, commenced or prosecuted ^UaU. 3<8.
against one of the United States by citizens of another state, or by
citizens or subjects of any foreign state.
Art. XII. The electors shall meet in their respective states, and vote Manner of
by ballot for president and vice president, one of whom, at least, shall not d','.nt'an(I vice"''"
be an inhabitant of the same state with themselves; they shall name in president.
their ballots the person voted for as president, and in distinct ballots
the person voted for as vice president, and they shall make distinct lists
of all persons voted for as president, and of all persons voted for as vice
10
CONSTITUTION OF THE UNITED STATES.
Maimer of
choosiu^ presi-
dent aua vice
president.
Same subject.
Same subject.
president, and of the number of votes for each, which lists they shall
sign and certify, and transmit sealed to the seat of the government of
the United States, directed to the president of the senate ; — the presi-
dent of the senate shall, in presence of the senate and house of repre-
sentatives, open all the certificates and the votes shall then be counted ;
— the person having the greatest number of votes for president, shall
be the president, if such number be a majority of the whole number of
electors appointed ; and if no ])erson have such majority, then from the
persons having the highest numbers not exceeding three on the list of
those voted for as president, the house of representatives shall choose
immediately, by ballot, the president. But in choosing the president,
the votes shall be taken by states, the representation from each state
having one vote ; a quorum for this purpose shall consist of a member
or members from two thirds of the states, and a majority of all the
states shall be necessary to a choice. And if the house of representa-
tives shall not choose a president whenever the right of choice shall
devolve upon them, before the fourth day of March next following, then
the vice president shall act as ]>resident, as in the case of the death or
other constitutional disability of the president.
The person having the greatest number of votes as vice president,
shall be the vice president, if such number be a majority of the whole
number of electors ap]3ointed, and if no person have a majoi-ity, then
from the two highest numbers on the list, the senate .shall choose the
vice president ; a quorum for the purpose shall consist of two thirds of
the whole number of senators, and a majority of the whole number shall
be necessary to a choice.
But no person constitutionally ineligible to the office of president
shall be eligible to that of vice president of the United States.
[Note. The constitution was adopted irth September, 1787, by the unanimous consent of tlie
states present in the convention appointed iu pursuance of tlie resolution of tlie cong^ress of the
confederation, of the 21st February, 1787, and was ratified by the conventions of the several states,
as follows, viz. : By convention of Delaware, 7th December, 1787 ; Pennsylvania, 12t!i December,
1787 ; New Jersey, ISth December, 1787 ; Georgia, 2d January, 1788 ; Connecticut, ittli January,
1788 i Massachusetts, 6th February, 1788 ; Maryland, 2Sth April, 1788 ; South Carolina, 2.3d May,
1788; New Hampshire, 21st June, 1788 ; Virginia, 2(lth June, 1788 ; New Yorli, aoth July, 1788 ;
North Carolina, 2l8t November, 1789 ; Rhode Island, 29th May, 1790.
The first ten of the amendments were proposed at the first session of the first congress of the
United States, 2oth September, 1789, and were finally r.ltifled by the constitutional number of st.ates
on the loth day of December, 1791. Tlic eleventh amendment was proposed at tlie first session
of the third congress, 5th March, 17M, and was declared in a message from tlie President of the
United States to both houses of congress, dated 8th January, 1798, to have been adopted by the
constitutional number of states. The twelfth amendment was proposed at the first session of the
eighth congress, 12th December, 1803, and was adopted by the eonstitution.nl number of states in
18(M, according to a public notice thereof by the secretary of state, dated 2jth September of the
same year.]
A
CONSTITUTION
oil
FORM OF GOYERNMENT
FOE THE
Coiniiiontocaltl 0f ISassacjjusctts.
PREAMBLE.
Objects of {;:ovcrnmcut. — Body politic, how
formed. — Its nature.
PART THE FIRST.
Article
1. Equality and natural rights of all men.
2. Right and duty of public religious worship.
— Protection therein.
3* Legislature empowered to compel provision
for public worship ; and to enjoin attendance
thereon. — Exclusive right of electing reli-
gious teachers secured.— Option, as to whom
parochial taxes maybe paid, unless, &c. —
All denominations equally protected. — Sub-
ordination of one sect to another, prohibited.
4. Right of self-government secured.
5. Accountability of all officers, &c.
6. Services rendered to the public being the
only title to peculiar privileges, hereditary
offices arc absurd and unnatural.
7. Objects of government j right of people to
institute and change it.
8. Right of people to secure rotation in office.
9. All, having the qualifications prescribed,
equally eligible to office.
10. Right of protection and duty of contribu-
tion, correlative. — Taxation, founded on con-
sent.— Private property not to be taken for
public uses, witliout, &c.
11. Remedies, by recourse to the law, to be
free, complete and prompt.
12. Prosecutions regulated. — Right to trial by
jury in criminal cases, except, &c.
13. Crimes to be proved in the vicinity.
14. Right of search and seizure, regulated.
15. Right to trial by jury sacred, except, &c.
16. Liberty of the press.
17. Right to keep and bear arms. — Standing
armies dangerous. — 3Iilitary power, subor-
dinate to civil.
18. Moral qualifications for office. — Sloral ob-
ligations of lawgivers and magistrates.
Articlr
I'J. Right of people to instruct representatives
and petition legislature.
20. Power to suspend the laws, or their exe-
cution.
21. Freedom of debate, &c., and reason thereof.
22. Frequent sessions, and objects thereof.
2.3. Taxation founded on consent.
24. E.V poftt/arto laws, prohibited.
25. Legislature not to convict of treason, Ac.
20. Excessive bail or fines, and cruel punish-
ments, prohibited.
27. No soldier to be quartered in any house,
unless, &c.
28. Citizens exempt from law martial, un-
less, &c.
29. Judges of supreme judicial court. — Ten-
ure of their office. — Salaries.
30. Separation of executive, judicial, and legis-
lative departuieuts.
PART THE SECOXD.
FRAME OF GOVERNMENT.
Title of body politic.
CHAPTER L
Section I.
Article
1. Legislative department.
2. Governor's veto. — liill may be passed by
two thirds of each house, notwithstanding.
3. General court may constitute judicatories,
courts of record, &c. — Courts, &c., may
administer oaths.
4. General court may enact laws, &c., not re-
pugnant to the constitutiou ; may provide
for the election or appointment of officers ;
prescribe their duties ; impose taxes, du-
ties and excises, to be disposed of for de-
fence, protection, &c. — Valuation of estates,
once in ten years, at least, while, &c.
(11)
12
CONSTITUTION OF MASSACHUSETTS.
Section 2.
Article
1. Senate, number of, and by whom elected.
— Counties to be districts, until, &c.
2. Manner and time of choosing senators and
councillors. — Word "inhabitant," defined.
— Selectmen to preside at town meetings. —
Return of votes. — Inhabitants of unincorpo-
rated plantations, who pay state taxes, may
vote. — Plantation meetings. — Assessors to
notify, &c.
3. Governor and council to examine and count
votes and issue summonses.
4. Senate to be fniiil judges of elections, &c., of
its own members. — Vacancies, how filled.
5. Qualifications of a senator.
6. Senate not to adjourn more than two days.
7. shall choose its officers and establish its
rules.
8. shall try all ImpeachmentB Oaths. —
Limitation of sentence.
9. quorum.
Section 3.
Article
1. Uepresentation of the people.
2. Kepresentatives, by whom chosen. — Pro-
viso as to towns having less than 150 rata-
ble polls. — Towns liable to fine, in case, &c.
— Expense of travelling to and from the
general court, how paid.
3. Qualifications of a representative.
4. Qualifications of a voter.
5- Representatives, when chosen.
6. House alone can impeach.
7. House to originate all money bills.
8. Not to adjourn more than two days.
9. Quorum.
10. House to judge of returns, &c., of its own
members ; to choose its officers and estab-
lish its rules, &c. — May punish for certain
ofTences. — Privileges of members.
11. Goveraor and council may punish. — Gen-
eral limitations. — Trial may be by commit-
tee, or otherwise.
CHAPTER n.
Section 1.
Article
1. Governor. — His title.
2. ■ to be chosen annually. — Qualifications.
3. to be chosen by the people, by a majority
of votes. — How chosen, when no person
has a majority.
4. Power of governor, and of governor and
council.
5. Same subject,
G. Governor and council may adjourn general
court, in cases, &c., but not exceeding ninety
days.
7. Governor to be conunander-in-chief. — Lim-
itation.
8. Governor and council may pardon offences,
except, &c. — But not before conviction.
9. All judicial officers, &c., how nominated
and appointed.
10. Militia officers, how elected. — How com-
missioned.— !Major generals, how appointed
and commissioned.— Vacancies, how filled,
in case, &c. — Officers, duly commissioned,
how removed. — Adjutants, Ac, how ap-
pointed.— Organization of militia.
11. Money, how drawn from the treasury, ex-
cept, &c.
12. All public boards, Ac, to make quarterly
returns.
13. Salary of governor. — Salaries of justices of
Article
supreme judicial court. — Salaries to be en-
larged, if insufficient.
Section 2.
Article
1. Lieutenant governor; his title and qualifi-
cations. — How chosen.
2. President of council.— Lieutenant gover-
nor a member of, except, »tc.
3. Lieutenant governor to be acting governor,
in case, &c.
Section 3.
Article
1. Council.
2. Number; from whom and how chosen. —
If senators become councillors their seats
to be vacated.
3. Rank of councillors.
4. No district to have more than two.
5. Register of council.
6. Council to exercise the power of governor,
in case, &c.
7. Elections may be adjourned, until, &c. —
Order thereof.
Section 4.
Article
1. Secretary, &c., by whom and how chosen.
— Treasurer, ineligible for more than five
successive years.
2. Secretary to keep records, to attend the
governor and council, &c.
CHAPTER TIL
Article
1. Tenure of all commissioned officers to be
expressed. — Judicial officors, to hold office
during good behavior, except, &c. — But
may be removed on address.
2. Justices of supreme judicial court to give
opinions, when required.
3. Justicesof the peace ; tenure of their office.
4. Provisions for holding probate courts.
6. Provisions for determining causes of mar-
riage, divorce, &c.
CHAPTER IV.
Delegates to congress.
CHAPTER V.
Section l.
Article
1. Harvard college. — Powers, privileges, tfec,
of the president and fellows, confirmed.
2. All gifts, grants, &c., confirmed.
3. Who shall be overseers. — Power of altera-
tion reserved to the legislature.
Section 2.
Duty of legislators and magistrates in all
future periods.
CHAPTER VI.
Article
1. Oaths of allegiance and office, A-c.
2. Plurality of offices, prohil)ited to governor,
Ac, except, Ac. — Incompatible offices. —
Bribery, Ac, disqualify.
3. Value of money ascertained. — Property
qualifications may be increased.
4. Provisions respecting commissions.
5. Provisions respecting writs.
0. Continuation of former laws, except, &c.
7. Benefit of habeas corpus secured except, &o.
8. The enacting style.
9. Officers of former government continued
until, Ac.
CONSTITUTION OP MASSACHUSETTS.
13
Article
10. Provision for revising constitution.
11. Provision for preserving and publislung
this constitution.
AMEXDMENTS.
Article
1. Bill, &c., not approved ^vithin five days, not
to become a law, if legislature adjourn in the
mean time.
2. Gent'nil court empowered to charter cities.
— Proviso.
3. Qualitiwitions of voters for governor, lieu-
tenant governor, senators and representa-
tives.
4. Notaries public, how appointed and re-
moved. — Vacancies in the office of secrptary
and treasurer, liow filled, in case, &c. — Com-
missary general may be appointed, in case,
&c. — Militia officers, how removed.
5. "Who may vote for captains and subalterns.
0. Oath to be taken by all officers ; or affirma-
tion in c^ise, A-o.
7. Tests abolished.
8. Incompatibility of offices.
9. Amendments to constitution, how made.
10. Commencement of political year ; and ter-
mination.— Meetings for choice of governor,
lieutenant governor, &c., when to be held. —
May be adjourned. — Article, when to go
into operation. — Inconsistent provisions,
annulled.
11. Religious freedom established.
12. Census of ratable polls. — Representatives,
how apportioned.
13. Census of inhabitants. — Senatorial dis-
Article
tricts. — Apportionment of representatives
and councillors. — Freehold as a qualittca-
tion for a seat in general court or council
not required.
H. Election by people to be by plurality.
15. Time of annual election of governor and
legislature.
16. Eight councillors, how chosen. — State to
be (Ustricted. — Day and luauner of election.
— Vacancies, how filled. — Organization of
government.
17. Election of secretary, treasurer, auditor,
and attorney general by the people. — Varan
cies, how tilled. — To qualify within ten
days. — Qualilieations.
18. School money not to be applied for sectai-ian
schools.
19. Legislature to prescribe for election of
sherifTs, registers of probate, &c., by the
people.
20. Reading constitution in English and writ-
ing, necessary qualifications of voters. —
Proviso.
21. Census of voters and inhabitants. — House
of representatives to consist of 240 members.
— Legislature to apportion, &c. — Qualifica-
tions of representatives, and number for
quorum.
22. Census of voters and inhabitants. — Senate
to consist of 40 members. — Senatorial dis-
tricts. — Qualifications of senators, and num-
ber for quorum.
23. Residence of two years required of natural-
ized citizens- to entitle to 8ufi"rage, or make
eligible to office.
PREAMBLE.
The end of the institution, maintenance and administration of gov- objects of goT-
emment, is to secure the existence of the body politic, to protect it, <^'">i™«°'-
and to furnish the individuals who compose it, with the power of enjoy-
ing in safety and tranquillity, their natural rights, and the blessings of
life : and whenever these great objects are not obtained, the ])eo]>le have
a right to alter the government, and to take measures necessary for their
safety, prosperity and happiness.
The body politic is formed by a voluntary association of individuals: Body politic,
it is a social compact, by which the whole ])eo])le covenants with each i°B'^°™e'!^
citizen, and each citizen with the whole people, that all shall be governed
by certain laws for the common good. It is the duty of the people,
therefore, in framing a constitution of government, to provide for an
equitable mode of making laws, as well as for an imjiartial intei-preta-
tion, and a faithful execution of them; that every man may, at all times,
find his security in them.
We, therefore, the people of Massachusetts, acknowledging, with
gi-ateful hearts, the goodness of the great Legislator of the universe, in
aflbrding us, in the course of his providence, an o]iportunity, deliberately
and peacealjly, without fraud, violence or suqirise, of entering into an
original, explicit, and solemn compact with each other; and of forming
a new constitution of civil government, for ourselves and posterity; and
devoutly imploring His direction in so interesting a design, do agi-ee
\^on, ordain and establish, the following Decha-ation of Jiights, and
p'rame of Government, as the Constitution of the Co3iiioNWEAi,TH
OP Massachusetts.
14
CONSTITUTION OF MASSACHUSETTS.
PART THE FIRST.
A Declaration of the Itights of the Inhabitants of the Commonwealth
of Massachusetts.
E<iuality and
natural rijjiits
of all lufu.
Right and duty
01 iiublic reli-
gious worship.
Protection
therein.
2 Gush. lot.
Amendment,
Art. XI. substi-
tuted for this.
Legrislatiire cm-
powi-red to
compel provis-
ion for public
worship ;
and to ciyoin at-
tendance there-
Exclusive ri2:ht
of electing: reli-
gious teachers
secured.
Option as to
wliom parochial
taxes may be
paid, unless, &c.
All denomina-
tions equally
protected.
Subordhi.ition
of one sect to
another prohib-
ited.
Kight of self-
government se-
cured.
Accounttibility
of all officers,
&c.
.Services render-
ed to the public
being the only
title to peculiar
privileges, he-
reditary offices
arc absurd and
anuatural.
Art. I. All men ,ire born free and equal, and have certain natural,
essential, and unalienable rights; among \vhich maybe reckoned the
right of enjoying and defending their lives and liberties ; that of acquir-
ing, possessing, and protecting ])roperty ; in fine, that of seeking and
obtaining their safety and happiness.
II. It is the right as well as the duty of all men in society, pub-
licly, and at stated seasons to worship the Supreme Beixg, the great
Creator and Preserver of the universe. And no subject shall be hurt,
molested, or restrained, in his person, liberty, or estate, for worshipping
God in the manner and season most agreeable to the dictates of his
own conscience ; or for his religious profession or sentiments ; provided
he doth not disturb the public peace, or obstruct others in their religious
worship.
[in. As the happiness of a people, and the good order and preservation of civil
government, essentially depend upon piety, religion and morality ; and as these cannot
be generally diffused through a community, but by the institution of the public wor-
ship of God, and of public instructions in piety, religion and morality : Therefore, to
promote their happiness and to secure the good order and preservation of their gov-
ernment, the people of this commonwealth have a right to invest their legislature with
power to authorize and require, and the legislature shall, from time to time, authorize
and require, the several towns, parishes, precincts, and other bodies politic, or religious
societies, to make suitable provision at their own expense, for the institution of the
public worship of God, and for the support and maintenance of public protestant
teachers of piety, religion and morality, in all cases where such provision shall not be
made voluntarily.
And the people of this commonwealth have also a right to, and do, invest their legis-
lature with authority to enjoin upon all the subjects an attendance upon the instruc-
tions of the public teachers aforesaid, at stated times and seasons, if there be any on
whose instructions they can conscientiously and conveniently attend.
Provided notwithstanding, that the several towns, parishes, precincts, and other
bodies politic, or religious societies, shall, at all times, have the exclusive right of elect-
ing theix public teachers, and of contracting with them for their support and mainte-
nance.
And all moneys, paid by the subject to the support of public worship, and of the
public teachers aforesaid, shall, if he require it, be uniformly applied to the support of
the public teacher or teachers of his own religious sect or denomination, provided there
be any on whose instructions he attends ; otherwise it may be paid towards the support
of the teacher or teachers of the parish or precinct in which the said moneys are raised.
And every denomination of christians, demeaning themselves peaceably, and as good
subjects of "the commonwealth, shall be equally under the protection of the law : and
no subordination of any one sect or denomination to another shall ever be established
by law.]
IV. The people of this commonwealth have the sole and exclusive
right of governing themselves, as a free, sovereign and independent
state; and do, and forever hereafter shall, exercise and enjoy every
power, jurisdiction, and right, which is not, or may not hereafter, be by
them expressly delegated to the United States of "America, in Congress
assembled.
V. All power residing originally in the peojile, and being derived
fi-om them, the several magistrates and officers of government, vested
with authority, whether legislative, executive, or judicial, are their sub-,
stitutes and agents, and are at all times accountable to them.
VI. No man, nor corporation, or association of men, have any other
title to olitaiu advantages, or particular and exclusive privileges, distinct
from those of the coinmunity, than what arises from the consideration
of services rendered to the public ; and this title being in nature neither
hereditary, nor transmissible to children, or descendants, or relations by
CONSTITUTION OP MASSACHUSETTS. 15
blooil, the idea of a man born a magistrate, lawgiver, or judge, is absurd
and unnatural.
VII. Government is instituted for the common good ; for the pro- objects of gov-
tection, safety, prosperity and happiness of the people ; and not for the ""'"opie t"m"
profit, honor, or private interest of any one man, tiimily or class of men : '*,|'*"J^ "'"'
Therefore the people alone have an incontestable, unalienable, and iude- °
feasible right to institute government; and to reform, alter, or totally
change the same, when their protection, safety, prosperity and happiness
require it.
VIII. In order to pi-event those, who are vested with authority, from Rifjiit of people
becoming ojjpressors, the peo])le have a right, at such periods and in uou iii'offi«>.''
such manner as they shall establish by their frame of government, to
cause their public officers to return to private life ; and to fill up vacant
places by certain and regular elections and appointments.
IX. All elections ought to be free; and all the inhabitants of this All, having the
commonwealth, having such qualifications as they shall establish by pregJrib'd""*
their frame of n;i^>venmient, have an equal right to elect officers, and to eqmaiy eligible
■ I. <-> ' fQ office*
be elected, for public employments.
X. Each individual of the society has a right to be protected by it Rigbtofprotcc-
in the enjoyment of his life, liberty ami jiroperty, according to standing eoi'itraiutiou^"''
laws. He is obliged, consequently, to contribute his share to the expense eorreiutive.
of this protection; to give his personal service, or an equivalent, when eii on conseut!
necessary: but no part of the property of any individual, can, with ipS^!^'*]^"
justice, be taken from him, or applied to public uses, without his own w Pick. i,vJ,4g;.
consent, or that of the rejiresentative body of the people. In fine, the 3$ {^Jk! sgo.
peojile of this commonwealth ai-e not controllable by any other laws i <^™y> <^^-
than those to which tlieir constitutional representative body have given pri'au! pioper-
their consent. And wlienever the public exigencies re((uire, that the ty not to bo tu-
proj^erty of any individual should be ajjpropriated to public uses, he uBeB'witbont!'
shall receive a reasonable compensation therefor. *<=•
XI. Every subject of the commonwealth ought to find a certain Remedies by re-
remedy, by having recourse to the laws, for all injuries or wi-ongs which faw^to be'free,
he may receive in his jjerson, jiroperty, or character. He ought to obtain complete and
right and justice freel)', and without being obliged to purchase it ; com-
pletely, and without any denial ; promptly, and without delay ; con-
formably to the laws.
XII. Xo suljjeet shall be held to answer for any crimes or offence, Prosecutions
until the same is fully and plainly, substantially and formally, described Ji''Fu;k'?ii.
to him ; or be compelled to accuse, or furnish evidence against himself. .'" '^>;j^- V-
And every subject shall have a right to produce all proofs, that may be •] Met. aju."
favorable to liim ; to meet the witnesses against him face to face, and to \ '^l'^'.' }y(,
be fully heard in his defence by himself, or his counsel, at his election.
And no subject shall be arrested, imprisoned, despoiled, or deprived of
his pro])erty, immunities, or privileges, put out of the protection of the
law, exiled, or deprived of his life, liberty, or estate, but by the judgment
of his peers, or the law of the land.
And the legislature shall not make any law, that shall subject any Right to trial
person to a capital or infamous punishment, excei)ting for the govern- hKircase", e™"
ment of the anny and navy, without trial by jury. '='-'1^, &c.
XIII. In criminal prosecutions, the verification of facts in the vicinity Crimes to be
where they hapjien, is one of the greatest securities of the life, liberty, [^'illly'"'"*''^^''"
and ]iroperty of the citizen.
XIV. Every subject has a right to be secure' from all unreasonable Risht of se.ircii
searches, and seizures, of his ]ierson, his houses, his papers, and all his "I'ltedl^"'^'^ ^''"'
possessions. All warrants, therefore, arc contrary to this right, if the ('o"st- U- S-.
cause or foundation of them be not previously supported by oath or aI". iv'"™ '''
affirmation, and if the order in the warrant to a civil officer, to make r ^^*; ■'••?■
, . ^ , , , , ' .1 fusil. .%9.
searcli m suspected places, or to arrest one or more suspected persons, 1 Gray, 1.
or to seize their property, be not accompanied with a special designation
16
CONSTITUTION OF MASSACHUSETTS.
Ripfht to trial
by jury sacred,
fxniit, &c.
Const, of U. S.,
Aiuond't VII.
2 I'ifk. 382.
r rick, aiiii.
5 Gray, 144.
Liberty of the
press.
Ri^ht to keep
ana bear anus.
Stiindini,^ armies
diUi;,'-crons. :SU\-
itary [inwi-r
subordiuate to
civil.
5 Gray, 121.
Moral qualifica-
tions for office.
Moral obliga-
tions of lawfjiv-
ers aud inujjia-
trates.
Rig:ht of people
to instruct rep-
resentatives
and petition le-
gislature.
Power to sus-
pend the laws
or tlieir execu-
tion.
Freedom of de-
bate, &c., and
reason tliereof.
Frequent ses-
sions, and ob-
jects thereof
Taxation found-
ed on consent.
Ex poftt facto
laws prohibited.
Legislature not
to convict of
treason, Ac.
Excessive bail
or fines, and
cruel puuisli-
meuts prohibit-
ed.
5 Gray, 482.
Ko soldier to be
quartered in any
house, unless,
&e.
Citizens exempt
from law-mar-
tial, unless, ito.
of the persons or objects of search, arrest, or seizure : and no warrant
ought to be issued but in cases, aud with the formalities prescribed by
the htws.
XV. In all controversies concerning property', and in all suits
between two or more persons, except in cases in which it has heretofore
been otherways used and i)ractised, the parties have a right to a trial
by jury; and this method of procedure shall be held sacred, unless, in
causes arising on the high seas, and such as relate to mariners' wages,
the legislature shall hereafter find it necessary to alter it.
XVI. The liberty of the ])ress is essential to the security of freedom in
a state : it ought not, therefore, to be restrained in this commonwealth.
XVII. The people have a right to keep and to bear arms for the
common defence. And as, in time of peace, armies are dangerous to
liberty, they ought not to be maintained without the consent of the
legislature ; and the military power shall always be held in an exact
subordination to the civil authority, and be governed by it.
XVIII. A frequent recurrence to the fundamental principles of the
constitution, and a constant adherence to those of piety, justice, mod-
eration, temperance, industry, and frugality, are absolutely necessary to
preserve the advantages of liberty, and to maintain a free government.
The people ought, consequently, to have a particular attention to all
those principles, in the choice of their officers aud representatives: and
they have a right to require of their lawgi^'ers and magistrates, an exact
and constant observance of them, in the Ibrmation and execution of the
laws necessary for the good administration of the commonwealth.
XIX. The people have a right, in an orderly and peaceable manner,
to assemble to consult upon the common good : give instructions to their
rejiresentatives, and to request of the legislative body, by the way of
addresses, petitions, or remonstrances, redress of the wrongs done them,
and of the grievances they suffer.
XX. The power of suspending the laws, or the execution of the
laws, ought never to be exercised but by the legislature, or by authority
derived from it, to be exercised in such particular cases only as the
legislature shall exj^ressly jirovide for.
XXI. The freedom of deliberation, speech and debate, in either
house of the legislature, is so essential to the rights of the people, that
it cannot be the foundation of any accusation or prosecution, action or
cgm]ilaint, in any other court or place whatsoever.
XXII. The legislature ought frequently to assemble for the redress
of grievances, for correcting, strengthening and confirming the laws,
and for making new laws, as the common good may recjuire.
XXIII. No subsidy, charge, tax, impost, or duties, ought to bo estab-
lished, fixed, laid, or levied, under any pretext whatsoever, without the
consent of the peojjle or their representatives in the legislature.
XXIV. Laws made to ])unish for actions done before the existence
of such laws, and which have not been declared crimes by preceding
laws, are unjust, oppressive, and inconsistent with the fundamental prin-
ciples of a free government.
XXV. No subject ought, in any case, or in any time, to be declared
guilty of treason or felony by the legislature.
XXVI. No magistrate or court of law, shall demand excessive bail or
sureties, impose excessive fines, or inflict cruel or unusual punishments.
XXVII. In time of peace, no soldier ought to be quartered in any
house without the consent of the owner; and in time of war, such
quarters ought not to be made but by the civil magistrate, in a manner
ordained by the legislature.
XXVIII. No jierson can in any case be subjected to law-martial, or
to any penalties or pains, by virtue of that law, except those em])loyed
in the army or navy, and except the militia La actual service, but by
authority of the legislature.
CONSTITDTION OF MASSACHUSETTS. 17
XXIX. It is essenti.il to the preservation of the rights of every Judges of sn-
iiuli^-idual, his life, liberty, property and character, that there be aii ^ou™?^"'"'"*'
impartial interpretation of the laws, and administration of justice. It
is the right of every citizen to be tried by judges as fi-ee, impartial and
independent as the lot of humanity will admit. It is, therefore, not Tenure of their
only the best policy, but for the security of the rights of the i)eople, °®'''^''
and of every citizen, that the judges of the supreme judicial court should
hold their "offices as long as they behave themselves well ; and tliat
thev should have honorable salaries ascertained and estabhshed by salaries.
standing laws.
XXX. In the government of this commonwealth, the legislative Separation of
department shall never exercise the executive and judicial powers, or *S°and'ieg'if!"
either of them : the executive shall never exercise the legislative and lative depart-
judieial powers, or either of them : the judicial shall never exercise the "cush. 5??.
leirislative and executive powers, or either of them: to the end it may
be a government of laws and not of men.
PAET THE SECOND.
The Frame of Government.
The people, inhabiting the ten-itory formerly called the Province of Title of body
Massachusetts Bay, do hereby solemnly and mutually agree with each p*>''"<^-
other, to form themselves into a free, sovereign, and independent body
politic, or state, by the name of The Coiimonweai.th of ]\Iassachu-
SETTS.
CHAPTER I.
THE LEGISLATIVE POWER. ,
Section I. The Oeneral Court.
Art. I. The department of legislation shall be formed by two Legislative de-
branches, a Senate and House of Representatives ; each of which shall P'"''™'^"'-
have a negative on the other.
The legislative body shall assemble every year on the last Wednesday in See amend-
May, and at such other times as they shall judge necessary ; and shall dis- '"™'^' ^'^- ^•
solve and be dissolved on the day next preceding the said last Wednesday
in May ; and shall be styled, The General Court of Massachusetts.
II. No bill or resolve of the senate or house of representatives shall Governor's ve-
become a law, and have force as such, until it shall have been laid before ***■
the governor for his rcvisal ; and if he, upon such revision, aj>])rove
thereof he shall signify his approbation by signing the same. But if he
have any objection to the passing of such bill or resolve, he shall return
the same, together with his objections thereto, in writintr, to the senate
or house of representatives, in whichsoever the same shall h.ave origin-
ated ; who shall enter the objections sent down by the governor, at large,
on their records, and proceed to reconsider the said bill or resolve. But
if after such reconsideration, two-thirds of the said senate or house Bill may be
of representatives, shall, notwithstanding the said objections, agree to {'hfrd's^oYearh &|, .
pass the same, it shall, together with tlie objections, be sent to tlie other house, notwith- ?««
branch of the legislature, where it shall also be reconsidered, and if ^'*°'''°°- 'H.
approved by two-thirds of the members present, shall have the force of f-y ,
a law : but in all such cases, the votes of both houses shall be deter- V \
mined by yeas and nays; and the names of the persons voting for, or .»
against, the said bill or resolve, shall be entered upon the public records w i
of the commonwealth.
2» 3
18
CONSTITUTION OP MASSACHUSETTS.
See amend-
ments. Art. T.
3 Mass. uOr.
Goneritl court
may eoustitute
judieiituries,
courts of rec-
ord, &c.
Courts, &c.,
may aclmitiister
outUa.
General court
may enact laws,
&e.,
not repugnant
to the constitu-
tion ;
may provide for
the election Or
appointment of
officers ;
prescribe their
duties ;
impose taxes,
duties and ex-
cises,
to be disposed
of lor delence,
protection, &c.
Valuation of es-
tates once in ten
years, at least,
while, &c.
And in order to prevent unnecessary delays, if any bill or resolve
sIklII not be returned by tbe o'overnor witliin five days after it shall have
been presented, the same shall have the force of a law.
III. The general covirt shall forever have fiill power and authority
to erect and constitute judicatories and courts of record, or other courts,
to be held in the name of the commonwealth, for the hearintr, trying,
and determining of all manner of crimes, offences, pleas, jM'ocesses,
plaints, actions, matters, causes and things, whatsoever, arising or hap-
pening within the commonwealth, or between or concerning persons
inhabiting, or residing, or brought within the same : whether the same
be criminal or civil, or whether the said crimes be capital or not cajntal,
and whether the said jileas be real, jiersonal, or mixed ;" and for the
awarding and making out of execution thereupon. To which courts and
judicatories are hereby given and granted full power and authority, from
time to time, to administer oaths or affirmations, for the better discovery
of truth in any matter in controversy or depending before them.
IV. And further, full power and authority are hereby given and
granted to the said general court, from time to time to make, ordain,
and establish, all manner of wholesome and reasonable orders, laws,
statutes, and ordinances, directions and instructions, either with penal-
ties or without ; so as the same be not repugnant or contrary to this
constitution, as they shall judge to be for the good and welfore of this
commonwealth, and for the government and ordering thereof, and of
the subjects of the same, and for the necessary support and defence of
the government thereof; and to name and settle annuall)', or ]>rovide
by fixed laws, for the naming and settling all civil officers within the
said commonwealth ; the election and constitution of whom are not
hereafter in this form of government otherwise provided for ; and to set
forth the several duties, powers and limits, of the several civil and mili-
tary officers of this commonwealth, and the forms of such oaths or
affirmations as shall be respectively administered unto them lor the
execution of their several offices and places, so as the same be not
repugnant or contrary to tliis constitution ; and to impose and levy pro-
portional and reasonable assessments, rates and taxes, u]ion all the
inhabitants of, and persons resident, and estates lying, within the said
commonwealth; and also to impose, and levy, reasonable duties and
excises, upon any produce, goods, wares, merchandise, and cominodities,
whatsoever, brought into, produced, manufactured, or being within the
same; to be issued and disjiosed of by warrant, under the hand of the
governor of this commonwealth for the time being, with the advice and
consent of the council, for the public service, in the necessary defence
and support of the government of the said commonwealth, and the pro-
tection and preservation of the subjects thereof; according to such acts
as are or shall be in force within the same.
And while the public charges of government, or any part thereof,
shall be assessed on jiolls and estates, in the manner that has hitherto
Vieen practised, in order that such assessments may be made with equal-
ity, there shall be a valuation of estates witliin the commonwealth,
taken anew once in every ten years at least, and as much ottener as the
general court shall order.
CHAPTER I.
Section- II. Senate.
Senate, number I. There shall be annually elected, by the freeholders and other
whom ei'eeted. inhabitants of this commonwealth, qualified as in this constitution is
See amei'id ' provided, forty persons to be councillors and senators for the year en-
xiiL md XVI. suing their election ; to be chosen by the inhabitants of the districts,
CONSTITUTION OF MASSACHUSETTS. 19
into Tvliich tlie commonwealth may from time to time be divided
by tlie general court for that ])urpose : and the general court in assign-
ing the numbers to be electeil by the respective districts, shall govern
themselves by the proportion of the public taxes i)aid by the said dis
tricts ; and timely make known to the inhabitants of the common-
wealth, the limits of each district, and the number of councillors and
senators to be chosen therein; provided, that the number of such dis-
tricts shall never be less than thirteen ; and that no district be so large
as to entitle the same to choose more than six senators.
And the several counties in this commonwealth shall, until the ronntiestobe
general court shall deteniiine it necessary to alter the said districts, be J^.'™'^' '™'"'
districts for the choice of councillors and senators, (except that the **«' amend-
counties of Dukes county and Nantucket chall form one district for that x'ii'i.lmd'kxii.
purpose) and shall elect the following number for councillors and sen-
ators, viz.: — Suflblk, six ; P]ssex, six ; Middlesex, five ; Hampshire, four;
Pljmiouth, three ; Barnstable, one ; Bristol, three ; York, two ; Dukes
county and Xantucket, one ; Worcester, five ; Cumberland, one ; Lin-
coln, one ; Berkshire, two.
II. The senate shall be the first branch of the legislature; and the Manner and
senators shall be chosen in the following manner, viz. : there shall be a i™'senatorr
meeting on the first Monday in April, annually, forever, of the inhab- auci couuciiiors.
itants of each town in the several counties of this commonwealth ; to be mcnte. Art. n.,
called by the selectmen, and warned in due course of law, at least seven x-^..xiv., and
days before the first Monday in April, for the purpose of electing per- See amend-
sons to be senators and councillors; and at such meetings every male "ii^'^xx.'^'and
inhabitant of twenty-one years of age and upwards, having a freehold xxni.
estate within the comuion wealth, of the annual income of three pounds,
or any estate of the value of sixty pounils, shall have a right to give in
his vote for the senators for the district of which he is an inhabitant.
And to remove all doubts concerning the meaning of the word " inhab- Word " inhabit-
itant" in this constitution, every person shall be considered as an inhab- *"' ' '■eS"'!''.
itant, for the ]nirpose of electing and being elected into any ofiice, or
place within this state, in that town, district or plantation, where he
dwelleth, or hath his home.
The selectmen of the several towns shall preside at such meetings selectmen to
impartially ; ami shall receive the votes of all the iidiabitants of such Jaeetkits' '°'™
towns ])resent and qualified to vote for senator, and shall sort and
count them in open town meeting, and in presence of the town clerk, EetumofvoteB.
who shall make a fair record, in presence of the selectmen, and in open
town meeting, of the name of every person voted for, and of the
number of votes against his name : and a fair copy of this record sliall
be attested by the selectmen and the town clerk, and shall be sealed
up, directed to the secretary of the commonwealth for the time being,
with a superscription, expiating the j^uqjort of the contents thereof,
and delivered liy the tOAVW»tlerk of such towns, to the sheriff of the Seeamend-
county in which such town lies, thirty dajs at least before the last |^™x.' '^'^' "'
Wednesday in May annually; or it shall be delivered into the secre-
tary's office seventeen days at least before the said last Wednesd.ay in
May : and the sheriff of each county shall deUver all such certificates
by him received, into the secretary's office, seventeen days before the
said last Wednesday in May.
Anil the inhabitants of ])lantations nnincoiiiorated, qualified as this inhabitants or
constitution jirovides, who are or shall l)e empowered and required to Jllai'Sons"**'*
assess t;ixes upon themselves toward the support of government, shall " I'o pay state
have the same ju-ivilege of voting for councillors and senators in the ■<'8,may vo e.
jilantations where they reside, as town inhabitants have in their respec-
tive towns ; and the plantation meeting;? for that purpose shall be held Plantation
annually on the same first Monday in April, at such place in the plan- seTamfnd-
tations respectively, as the assessors thereof shall direct ; which assess- ments, Art. x.
20
CONSTITUTION OF MASSACHUSETTS.
Assessors to
uotily, ifcc.
Governor and
council to ex-
amine and count
votes, and issue
summonses.
See junend-
meuts, Art. X.
Senate to be
liual jud-^e tif
eleetious, itc. of
its o\vn mem-
bers.
See amend-
ments, Art. S.
andXIV.
Vacancies, how
filled.
Qualifications
of a senator.
See junend-
ments. Art.
XIlI.andXXII.
Senate not to
adjourn more
than two days.
Shall choose its
officers and es-
tablish its rules.
Shall try all im-
peachments.
Oath.
Limitation of
sentence.
ors shall have like authority for notifying the elector.s, collecting and
returning the votes, as the selectmen and town clerks have in their sev-
eral towns, by this constitution. And all other jiersons living in jilaces
iniincorporated (qualified as aforesaid) who shall bo assessed to the
sujiport of government by the assessors of an adjacent town, shall have
the privilege of giving in their votes for councillors and senatoi-s, in the
town where they shall be assessed, and be notified of the place of meet-
ing by the selectmen of the town where they shall be assessed, for that
purpose, accordingly.
III. And that there may be a due convention of senators on the last
Wednesday in May annually, the governor with five of the council, for
the time being, shall, as soon as may be, examine the returned copies of
such records ; and fourteen days before the said day he shall issue his
summons to such persons as shall appear to be chosen by a majority of
voters, to attend on that day, and take their seats accordingly : pro-
vided nevertheless, that for the first year the said returned cojiies shall
be examined by the president and five of the council of the former con-
stitution of government ; and the said president shall, in like manner,
issue his summons to the persons so elected, that they may take their
seats as aforesaid.
IV. The senate shall be the final judge of the elections, returns and
qualifications of their own members, as pointed out in the constitution ;
and shall, on the said last Wednesday in May annually, determine and
declare who are elected by each district, to be senators by a majority
of votes ; and in case there shall not appear to be the full number of sena-
tors returned elected by a m.ajority of votes for any district, the defi-
ciency shall be supplied in the following manner, viz. : The members of
the house of representatives, and such senators as shall be declared
elected, shall take the names of such persons as shall be found to have
the highest number of votes in such district, and not elected, amount-
ing to twice the number of senators wanting, if there be so many voted
for; and out of these shall elect by ballot a number of senators sufiicient
to fill up the vacancies in such district ; and in this manner ;ill such
vacancies shall be filled up in every district of the commonwealth ; and
in like manner all vacancies in the senate, arising by death, removal out
of the state, or othei-wise, shall be supplied as soon as may be, after such
vacancies shall happen.
V. Provided nevertheless, that no person shall be capable of being
elected as a senator, who is not seised in his own right of a freehold,
within this commonwealth, of the value of three hundred pounds at
least, or possessed of personal estate to the value of six hundred pounds
at least, or of both to the amount of the same sum, and who has not
been an inhabitant of this commonwealth for the space of five years
immediately preceding his election, and a^^he time of his election, he
shall be an inhabitantin the district for wMp he shall be chosen.
VI. The senate shall have power to acTjourn themselves, provided
such adjournments do not exceed two days at a time.
VII. The senate shall choose its own president, appoint its own offi-
cers, and determine its own rules of proceedings.
VIII. The senate shall be a court with full authority to hear and
determine all impeachments made by the house of representatives,
against any officer or officers of the commonwealth, for misconduct and
mal-adniinistration in their offices. But previous to the trial of every
impeachment the members of the senate shall respectively be sworn,
truly and impartially to try and determine the charge in question,
according to evidence. Their judgment, however shall not extend
further than to removal from office and disqualification to hold or enjoy
any place of honor, trust, or profit, under this commonwealth : but the
CONSTITUTION OF MASSACnUSETTS. 21
party so con-\-ictefl, shall be, nevertheless, liable to indictment, trial, judg-
ment, and punishment, according to the laws of the land. Quornm.
IX. Not less tlian sixteen members of the senate shall constitute a See amend-
/. T . 1 - ments. Art.
quorum tor doing business. xxii.
CHAPTER I.
Section III. House of Mepresentatives.
I. There shall be, in the legislature of this cnmnionwealth, a repre- Representation
sentation of the people, annually elected, and founded upon the prin- "^ the people,
ciple of equality.
II. Ami in order to provide for a representation of the citizens of Representa-
this couimonwealth, founded u|3on the jirincijile of equahty, every cor- "Sn.^ "^i^om.
i)orate town containinii; one luindred and fifty ratable polls, may elect See amend-
one representative ; every eoiporate town containing three hundred xiii., and xxi.
and seventy-five ratable polls, may elect two representatives ; every
corjiorate town containing six hundred ratable polls, may elect three
rejjresentatives ; and proceeding in that manner, making two hundred
and twenty-five ratable polls, the mean increasing number for every
additional representative.
Provided nevertheless, that each town now incorporated, not hav- Proviso as to
ing one hundred and fifty ratable polls, may elect one representative ; ics™*th^'^l
but no place shall hereafter be incorporated with the privilege of elect- ratuUk- polls,
ing a representative, unless there are within the same one hundred and
fifty ratable polls.
And the house of representatives shall have power from time to Toirns liable to
time to im]jose fines upon such towns as shall neglect to choose and fii"-' ■" case, &c
returu members to the same, agreeably to this constitution.
The ex])enses of travelling to the general assembly, and returning Expense of
home, once in every session, and no more, shall be paid by the gov- anii "(Vou? tlie
eminent, out of the public treasury, to every member who shall attend puerai court,
as seasonably as he can, in the judgment of the house, and does not °"'i"" •
depart without leave.
III. Every member of the house of representatives shall be chosen QuaUflcations
by wnitten votes; and' for one year at least next preceding his election, o*^^^ ''''P''^"8enta-
shall have been an inhabitant of, and have been seised in his own right Seeameud-
of a freehold of the value of one hundred pounds within the town he xnif.'xiv'.,
shall be chosen to represent, or any ratable estate to the value of two ^'^ -^^i-
hundred pounds ; and he shall cease to represent the said town, uume-
diatcly on his ceasing to be qualified as aforesaid.
IV. Every male jierson, being twenty-one years of age, and i-esident Qualifications
in any, particular town in this commonwealth "for the space of one year |ee amend-
next jireceding, having a |fchold estate within the same town, of the mems, Art. iii.
annual income of three ^Wnds, or any estate of the value of sixty ^^-'iuidxxiii.
pounds, shall have a right to vote in the choice of a representative, or
representatives for the said town.
V. The members of the house of representatives shall be chosen Representa-
annually in the month of May, ten days at least before the last Wednes- cholcn!''lre
day of that month. • amendments, _
VI. The house of repi-esentatives shall be the gi-and inquest of this HousV.Xne
commonwealth; and all impeachments made by them, shall be heard can impeach,
and tried by the senate.
VII. All money bills shall originate in the house of representatives; House to origi-
but the senate may propose or concur with amendments, as on other {Jj^j^ "'^ money
bills.
VIII. The house of representatives shall have power to adionrn Xot to .ad.ionm
themselves; provided such adjournment shall not exceed two days at a Say^. "''^ *'™
time.
22
CONSTITUTION OP MASSACHUSETTS.
Quorum.
See amend-
roente, Art.
XXI.
House to judge
of returns, &e.,
of its own mem-
bers ; to choose
its officers and
establish its
rules, &c.
May puuish for
certain offences.
Privileofes of
members.
Governor and
council may
punish.
General limitiv
tiou.
Trial may be
by committee,
or otherwise.
IX. Not less than sixty members of the liouse of representatives,
shall constitute a quorum for doing business.
X. The house of representatives shall be the judge of the returns,
elections, and qualifications of its own members, as pointed out in the
constitution ; shall choose their own speaker; appoint their own officers,
and settle the rules and orders of proceeding in their own house. They
shall have authority to jjunish by imprisonment, every person, not a
member, who shall be guilty of disrespect to the house, by any disor-
derly, or contemptuous behavior, in its presence ; or who, in the town
where the general court is sitting, and during the time of its sitting, shall
threaten harm to the body or estate of any of its members, for any thing
said or done in the house; or who shall assault any of them therefor;'
or who shall assault, or arrest, any witness, or otlier person, ordered to
attend the house, in his way in going or returning; or who shall rescue
any person arrested by the order of the house.
And no member of the house of representatives shall be arrested, or
held to bail on mean process, during his going unto, returning from, or
his attending the general assembly.
• XI. The senate shall have the same powers in the like cases ; and
the governor and council shall have the same authority to punish in
like cases : provided that no imprisonment on the warrant or order
of the governor, council, senate, or house of representatives, for either of
the above described offences, be for a term exceeding thirty days.
And the senate and house of re]n-esentatives may try, and determine,
all cases where their rights and privileges are concerned, and which, by
the constitution, they have authority to try and determine, by commit-
tees of their own members, or in such other way as they may respec-
tively think best.
CHAPTER n.
EXECUTIVE POWEK.
Governor.
His title.
To be chosen
annually.
Qualifications.
Sec Amend-
ments, Art.
VII.
By whom cho-
sen, if he have a
m:yority of
votes.
See amend-
ments, Art. II.,
X., XIV., and
XV.
Section I. Governor.
I. There shall be a supreme executive magistrate, who shall be
styled — The Governor of the Comsionw^e^vlth of Mass.vciiusetts;
and whose title shall be — His Excellency.
II. The governor shall be chosen annually; and no person shall be
eligible to this office, unless at the time of his election, he sliall have
been an inhabitant of this commonwealth for seven years next preced-
ing; and unless he shall at the same time, be seised in his own right, of a
freehold, within tlie commonwealth of the value of one thousand pounds;
and unless he shall declare himself to be of the christian religion..
III. Those persons who shall be qualitied to vote for senators and
representatives within the several towns of this commonwealth, shall,
at a meeting to be called for that purpose, on the first Monday of Ajn-il
annually, give in their votes for a governor, to the selectmen, who shall
preside at such meetings ; and the'town clerk, in the presence and with
the assistance of the selectmen, shall, in open town meeting, sort and
count the votes, and form a list of the persons voted for, with the num-
ber of votes for each person against his name; and .shall niake a fau-
record of the same in the town "books, and a i)ublic declaration thereof
in the said meeting ; and shall, in the presence of the inhabitants,
seal np copies of the said list, attested by liim and the selectmen, and
transmit the same to the sheriff of the' county, thirty days at least
before the last Wednesday in May ; and the sheriff shall transmit the
same to the secretary's office, seventeen days at least before the said
last Wednesday in May; or the selectmen" may cause returns of the
same to be made to tlie office of the secretary of the commonwealth,
CONSTITUTION OP MASSAGHUSETTS. 23
seventeen days at least before the said day ; and the secretary shall lay
the same before the senate and the house of rejiresentatives, on the last
Wednesday in May, to be by them examined ; and in case of an election
by a majority of all the votes returned, the choice shall be by them
declared and published ; but if no person shall have a majority of votes,
the house of representatives shall, by ballot, elect two out of four per- How chosen,
sons who had the highest number of votes, if so many shall have been hi!,™ JJi"yurity°
voted for, but, if otherwise, out of the number voted for ; and make
return to the senate of the two persons so elected ; on which the senate
shall proceed, by ballot, to elect one, who shall be declared governor.
IV. The governor shall have authority from time to time, at his Power of gov-
discretion, to assemble and call together the councillors of this com- Ijuver'nor'and
monwealth tor the time being ; and the governor with the said council- coimcu.
lors, or five of them at least, shall, and may, from time to time, hold and
keep a council, for the ordering and directing the aflairs of the com-
monwealth, agreeably to the constitution and the laws of the land.
V. The governor, with advice of council, shall have full power and Same subject,
authority, during the session of the general court to adjourn or pro-
rogue the same to any time the two houses shall desire ; and to dissolve
the same on the day next preceding the last Wednesday in May ; and, See amend-
in the recess of the said court, to pjrorogue the same from time to time, '"'^"•s, Art. x.
not exceeding ninety days in any one recess ; and to call it together
sooner than the time to which it may be adjourned or prorogued, if the
welfare of the commonwealth shall require the same ; and in case of
any infectious distemper prevailing in the place where the said court is
next at any time to convene, or any other cause happening whereby
danger may arise to the health or lives of the members from their
attendance, he may direct the session to be held at some other, the most
convenient place within the state.
And the governor shall dissolve the said general court on the day See amend-
next preceding the last Wednesilay in May. °"'°'*' ^^- •'^•
VI. In cases of disagreement between the two houses, with regard Governor and
to the necessity, expediency or time of adjournment or prorogation, j™™nthe'"cner-
the governor, with advice of the council, shall have a right to adjourn ui court ialaBcs,
or prorogue the general court, not exceeding ninety days, as he shall cwiing nUiety'
determine the public good shall require. ''"y^*
VII. The governor of this commonwealth, for the time being, shall Governor to be
be the commander-in-chief of the army and navy, and of all the militaiy cS^"""**"'™"
forces of the state, by sea and land ; and shall have full power, by him-
self, or by any commander, or other officer or officers, from time to time,
to train, instruct, exercise and govern the militia and navy; and, for
the special defence and safety of the commonwealth, to assemble in
martial arra}-, and put in warlike posture, the inhabitants thereof, and
to lead and conduct them, and with them, to encounter, re])e], resist,
e.xpel and pursue, by force of, arms, as well by sea as by land, within or
without the limits of this commonwealth, and also to kill, slay and
destroy, if necessary, and conquer, by all fitting ways, enterprises, and
means whatsoever, all and every such person and persons as shall,
at any time hereafter, in a hostile manner, attempt or enterprise the
destruction, invasion, detriment, or annoyance of this commonwealth ;
and to use and exercise, over the army and navy, and over the militia
in actual service, the law martial, in time of war or invasion, and also
in time of rebellion, declared by the legislature to exist, as occasion shall
necessarily require ; and to take and surprise by all waj-s and means
whatsoever, all and every such person or persons, with their shi])s, amis,
ammunition and other goods, as shall, in a hostile manner, invade, or
attempt the invading, conquering, or annoying this commonwealth ;
and that the governor be intrusted with all these and other powers,
incident to the offices of captain-general and commander-in-chief, anft
24
CONSTITUTION OF MASSACHUSETTS.
Limitation.
Governor and
council may
pardon oflou-
cos, except, tfcc.
But not beibre
conviction.
All judici.al offi-
cers, &c., liow
nominated and
appointed.
See amend-
ments, Art.
XIV., XVII.,
and XIX.
IVIilitia officers,
how elected.
See amend-
ments, Art. V.
How commis-
sioned.
Major-generals,
how appointed
and commis-
sioned.
Vacancies, how
lilled, in cas^',
&c.
Officers duly
commissioned,
how removed.
See amend-
ments, Art. IV.
Adjutants, &c.,
how ajipointetl.
Hl^
Organization of
militia.
Money, how
drawn from the
treasury, ex-
cept, &c.
admiral, to be exercised agreeably to the rules and regulations of tbe
constitution, and the laws of the land, and not otherwise.
Provided, that the said governor shall not, at any time hereafter, by
virtue of any power by this constitution granted, or hereafter to be
granted to him by the legislature, transport aiiy of the inhabitants of
this commonwealth, or oblige them to march out of the limits of the
same, without their free and voluntary consent, or the consent of the
general court; except so for as may be necessary to march or transport
them by land or water, for the defence of such part of the state to
which they cannot otherwise conveniently have access.
VIII. The jiower of pardoning otfences, except such as persons may
be convicted of before the senate by an im])eachmcnt of the house,
shall be in the governor, by and with the advice of council ; but no
charter of pardon, granted by the governor, with ad\ice of the council
before conviction, shall avail the party pleading the same, notwithstand-
ing any general or particular cx])ressions contained therein, descriptive
of the otlence or ofiences intended to be pardoned.
IX. All judicial otHcers, the attorney-general, the solicitor-general,
all sherirts, coroners, and registers of probate, shall be nominated and
appointed by the governor, by and with the advice and consent of the
council ; and every such nomination shall be made by the governor, and
made at least seven days prior to such ap]iointment.
X. The captains and subalterns of the militia, shall be elected by the
written votes of the train-band and alarm list of tlieir respective com-
panies, of twenty-one years of age and upwards; the field oflicers of
regiments shall be elected by the written votes of the captains and sub-
alterns of their resjjective regiments: the brigadiers shall be elected, in
likemanner, by the field officers of theu- respective brigades; and such
officers, so elected, shall be commissioned by the governor, who shaU
detemiine their rank.
The legislature shall, by standing laws, direct the time and manner
of convening the electors, and of collecting votes, and of certifjdng to
the governor, the officers elected.
The major-generals shall be appointed by the senate and house of
representatives, each having a negative upon the other ; and be commis-
sioned by the governor.
And if the electors of brigadiers, field officers, captains or subalterns,
shall neglect or refuse to make such elections, after being duly notified,
according to the laws for the time being, then the governor, with advice
of council, shall appoint suitable persons to fill such offices.
And no officer, duly commissioned to command in the militia, shall
be removed from hisoffice, but by the address of botli houses to the
governor, or by fair trial in court martial, pursuant to tlie laws of the
commonwealth for the time being.
The commanding officers of regiments shall appoint their adjutants
and quartermasters; the brigadiers their brigade-majors; and the major-
generals their aids ; and the governor shall appoint the adjutant-general.
The governor, with advice of council, shall appoint all officers of the
continentd army, whom by the confederation of the United States it is
provided that this commonwealth shall appoint, as also all officers of
forts and garrisons.
The divisions of the militia into brigades, regiments and companies,
made in pursuance of the militia laws now in force, shall be considered
as the proper divisions of the militia of this commonwealth, until the
same shall lie altered in ]iursuance of some future law.
XI. No moneys shall be issued out of the treasury of this common-
wealth, and disposed of (exce])t such simis as may be ap]iropriated for
the redemjition of bills of credit or treasurer's notes, or for the pajTnent
(Jf interest arising thereon) but by wan-ant vinder the hand of the gov-
CONSTITUTION OP MASSACHUSETTS. 25
emor for the time being, with the advice and consent of the council, for
the necessary defence and support of the commonwealth ; and for the
protection and preservation of the inhabitants thereof, agreeably to the
acts and resolves of the general court.
XII. All public boards, the commissaiy-general, all superintending All public
officers of public magazines and stores, belonging to this commonwealth, n°Jk"'ri'imrtoriy
and all commanding officers of forts and garrisons within the same, returns,
shall once in every three months, officially, and without requisition, and
at other times, when required by the governor, deliver to him an account
of all goods, stores, provisions, ammunition, cannon with their appendages,
and small arms with their accoutrements, and of all other public prop-
erty whatever under their care respectively; distinguishing the quantity,
nimiber, quality and kind of each, as ]Kirticularly as may be ; together
with the condition of such forts and garrisons ; and the said commanding
officer shall exhibit to the governor, when required by him, true and
exact plans of such forts, and of the land and sea or harbor or harbors,
adjacent.
And the said boards, and all public officers, shall communicate to the
governor, as soon as may be after receiving the same, all letters, de-
spatches, and intelligences of a public nature, which shall be directed to
them respectively.
XIII. As the public good requires that the governor should not be Salary ofgor-
under the undue influence of any of the members of the general court '^''"<""-
by a dependence on them for his support ; that he should in all cases,
act with freedom for the benefit of the public, that he should not have
his attention necessarily diverted from that object to his private con-
cerns— and that he should maintain the dignity of the commonwealth
in the character of its chief magistrate, it is necessary that he should
have an honorable stated salary, of a tixed and permanent value, ani]ily
sufficient for those purposes, and est.ablished by standing laws: audit
shall he among the first acts of the general court, after the commence-
ment of this constitution, to establish such salary by law accordingly.
Permanent and honorable salaries shall also be established by law for s.aiaricB of jii»-
the justices of the supreme judicial court. jaS'S?"],™.""
And if it shall be found that any of the salaries aforesaid, so estab- salaries to ix?
lished, are insufficient, they shall, from time to time be enlarged, as the sufficaSt.'
general couit shall judge proper.
CHAPTER n.
Section II. I^ieutenant- Governor,
I. There shall be annually elected a lieutenant-governor of the Lieutenant-
commonwealth of Massachusetts, whose title shall be — IIis Honor; |?Je""'°n"i'quaii-
and who sliall be qualified, in point of religion, property, .and residence flcaOons.
in the commonwealth, in the same manner with the governor: and the mrait™Trt.iii.,
(Lay and manner of his election, and the qualifications of the electors, yj.-' ^•' J^i' ,
1-11 1 ^1 • T • 1 1 • ,. rT^^ X\. Rlld W III.
snail be tlie same as are required m the election oi a governor, llie
return of the votes for this officer, and the declaration of his election. How chosen.
shall be in the same manner: and if no one person shall be found to ' ''^m-
have a majority of .all the votes returned, the vacancy shall be filled by
the senate and house of representatives, in the same manner as the
governor is to be elected, in case no one person shall have a majority
of the votes of the people to be governor.
II. The governor, and in his absence the lieutenant-governor, shall Presitientof
be president of the council, but shall have no vote in council ; and the Sutenant-
lieutenant-iiovernor shall always be a member of the council exeeiit povornora
hiii-i>.i 111, ^ niembcr of, ex-
en the chair ot the governor shall be vacant. cept. &c.
III. Whenever the chair of the governor shall be vacant, by reason Licutenant-
3 4
26
COXSTITUTIOX OF MASSACHUSETTS.
governor to ho of liis death, or absence from tlie commonwealth, or otherwise, the
or!'^°cafe" &™ Hcutenant-governor, lor tlie time being, shall, during such vacancy, ])er-
form all the duties incumbent u))on the governor, and shall have and
exercise all the powers and authorities, which by this constitution the
governor is vested with, when personally present.
CHAPTER II.
Council.
See amend-
ments, Art.
XVI.
Section III. Council, and the Manner of settling Elections hy the
Legislature.
I. There shall be a council for advising the governor in the ex-
ecutive ]iart of the government, to consist of nine jicrsoiis besides the
lieutenant-governor, whom the governor, for the time being, shall have
full power and authority, from time to time, at his disci-eti(jn, to assemble
and call together. And the governor, with the said councillors, or five of
them at least, shall and niay, from time to time, hold and keeji a council,
for the ordering and directing the affairs of the commonwealth, accord-
ing to the laws of the land.
II. Nine councillors shall be annually chosen from among the per-
sons returned ibr councillors and senators, on the last Wednesday in
May, by the joint ballot of the senators and representatives assembled
in one room : and in case there shall not be found upon the first choice,
the whole number of nine persons who will accept a seat in the council,
the deficiency shall be made up by the electors aforesaid from among
the peojjle at large ; and the number of senators left shall constitute
the senate for the year. The seats of the persons thus elected from the
senate, and accepting the trust, shall be vacated in the senate.
III. The councillors, in the civil arrangements of the commonwealth,
shall have rank next after the lieutenant-governor.
IV. Not more than two councillors shall be chosen out of any one
district of this commonwealth.
V. The resolutions and advice of the council shall be recorded in a
register, and signed by the members present; and this record may be
called for at any time by either house of the legislatui-e ; and any
member of the council may insert his opinion, contrary to the resolution
of the m.ajority.
VI. Whenever the office of the governor and lieutenant-governor
shall be vacant, by reason of death, absence, or otherwise, then the
council, or the major part of them, shall, during such vacancy, have full
power and authority to do, and execute, all and every such acts, matter.s
and things, as the governor or the lieutenant-governor might or could,
by virtue of this constitution, do or execute, if they, or either of them,
were personally present.
VII. And whereas the elections appointed to be made, by this con-
stitution, on the last Wednesday in May annually, by the two houses of
the legislature, may not be com])leted on that day, the said elections
may be adjourned from day to day until the same shall be completed.
And the order of elections shall be as follows: the vacancies in the
senate, if any, shall first be filleil up ; the governor and lieutenant-gov-
ernor shall then be elected, j)ro\ ided there should be no choice of them
by the pcojile : and afterwards the two houses shall proceed to the
election of the council.
CHAPTER II.
Section IV. Secretary, Treasurer, Commissary c£r.
Crwhomand' ^- '^^'^ secretary, treasurer and receiver-general, and the commis-
iiuw chosen. sary-general, notaries public, and naval officers, shall be chosen an-
Nuniber ; from
whom, and how
chosen.
See amend
ments. Art. X.,
XIII. and XVI.
If senators be-
come conncil-
lors, their seats
to be vacated.
Ua!ik of coun-
ciUors.
No district to
have more than
two.
Register of
council.
Council to exer-
cise the power
of governor, in
c^ise, &c.
Elections may
he adjourned
until, &c.
Order thereof.
CONSTITUTION OF MASSACHUSETTS. 27
nually, by joint ballot of the senators and ropresentatives in one Sccamcnd-
room'. And, that the citizens of this commonwealth maybe assm-ed, "u™xvtL''^'
fi'om time to time, that the moneys reniaininu' in the imblic treasury, Ticnsurer imii
ujjon the settlement and liquidation of the ])iiblic accounts, are their fi'"ffi"p '",',";■
property, no man shall be eligible as treasurer and receiver-general more cessivc years,
than live years successively.
II. The records of the commonwealth shall be kept in the office of Secretary to
the secretary, Avho may a]3]>oint his deputies, for whose conduct he shall toXeuii'the '
be accountable, and he shall attend the "overnor and council, the senate governor and
and house of representatives, in person, or by his deputies, as they snaii
respectively require.
council, &c.
CHAPTER III.
JUDICIARY POWER.
I. The tenure, that all commission officers shall by law have in Tenure of .lU
their offices, shall be exjjressed in their respective commissions. All S^rtTbeex-
iudicial officers, duly appointed, commissioned and sworn, shall hold preKHid.
•{, . a. 1 • 1 1 I • »• 1 • 1 .Judicial offli-i-rs
their offices during gooil behavior, excepting such concerning whom to hold office
there is different provision made in this constitution: provided never- ji'iji'ij |"*''"'
theless, the governor, with consent of the council, may remove them &c.
upon the address of both houses of the legislature. uioved"onad-"'^
II. Each branch of the legislature, as well as the governor and dress,
council, shall have authority to require the opinions of the justices of preme'judici"!
the supreme judicial court, upon important questions of law, and upon ™"^ '," ^^'5,^j.„
solemn occasions. required.
III. In order that the people may not suffer from the long continuance justices of the
in place of any justice of the peace, who shall fail of discharging the Sfthcir'officei
important duties of his office with ability or fidelity, all commissions of
justices of the peace shall expire and become void, in the term of seven
years from their respective dates; and ujion the exjiiration of any
commission, the same may, if necessary, be renewed, or another person
ap])ointed, as shall most conduce to the well being of the commonwealth.
IV. Tlie judges of probate of wills, and for granting letters of Provisions fo-
administration, shall hold their courts at such place or places, on fixed courts."''™ ''*°
days, as the convenience of the people shall require. And the legislature
shall from time to time, hereafter appoint such times and places ; until
which a]ipointments, the saiil courts shall be holden at the times and
places which the respective judges shall direct.
V. All causes of marriage, divorce, and alimony, and all appeals fi'om Provisions for
the judges of )irobate shall be heard and determined by the governor eaus™"" mar-
aud council, until the legislature shall, by law, make other provision. riage, divorce,
CHAPTER IV.
DELEGATES TO CONGRESS.
The delegates of this commonwealth to the congress of the United Delegates to
States, shall, some time in the month of June annually be elected by "^sress.
the joint ballot of the senate and house of representatives, assembled
together in one room; to serve in congress for (me year, to commence
on the first Monday in November then next ensuing. They shall have
commissions under the hand of the governor, and the great seal of the
commonwealth; but may be recalleil at any time within the year, and
others chosen and commissioned, in the same manner, in their stead.
28
CONSTITUTION OF MASSACHUSETTS.
CHAPTER V.
THE mriVERSITY AT CAMBRIDGE, AND ENCOURAGEMENT OF LITERATURE &c.
Harvard Col-
Powers, privi-
logoK, &c.,of'tIie
preeident aud
loUows, cou-
lirmed.
All gifts,
grants, &e. con-
iirmed.
WTio shall be
overseers.
Statutes,
1851, 224.
Tower of altera-
tion reservod to
the lesrislature.
Section I. The University.
I. Whereas our wise and ])ious ancestors, so early as the year one
thousand six hundred and thirty-six, hud the foundation of Harvard
College, in which university many jjersons of great eminence have, by
the blessing of God, been initiated in those arts and sciences, which
qualified them for ]uiblie employments, both in church and state : and
whereas the encouragement of arts ami sciences, and all good literature,
tends to the honor of God, the advantage of the christian religion,
and the great benefit of this and tlie other United States of America, —
it is declared, that the President and Fellows of Harvard Col-
lege, in their corporate cajiacitj', and tlieir successors in that capacity,
their officers and servants, shall have, hold, use, exercise and enjoy, all
the powers, authorities, rights, liberties, privileges, immunities and
fi-anchises, which they now have, or are entitled to have, hold, use,
exercise and enjoy: and the same are hereby ratified and confimied
unto them, the said president and fellows of Haiward College, and to
their successors, and to their officers and servants, respectively, forever.
II. And whereas there have been at sundry times, by divers jiersons,
gifts, grants, devises of houses, lands, tenements, goods, chattels, lega-
cies and conveyances, heretofore made, either to Harvard College in
Cambridge, in New England, or to the president and fellows of Harvard
College, or to the said college, by some other description, under several
charters, successively: it is declared, that all the said gifts, grants, devises,
legacies and conveyances, are hereby forever confirmed unto tlie presi-
dent and fellows of Harvard College, and to their successors in the
capacity aforesaid, according to the true intent and meaning of the
donor or donors, grantor or grantors, devisor or devisors.
III. And whereas, by an act of the general court of the colony of
Massachusetts Bay, passed in the year one thousand six hundred and
forty-two, the governor and deputy-governor, for the time being, and
all the magistrates of that jurisdiction, were, with the president, and a
number of the clergy in the said act described, constituted the over-
seers of Harvard College : and it being necessary, in this new constitu-
tion of government to ascertain who shall be deemed successors to the
said governor, deputy-governor and magistrates: it is declared, that
the governor, lieutenant-governor, council and senate of tliis common-
wealth, are, and shall be deemed, their successors, who, with the presi-
dent of Harvard College, for the time being, together with the min-
isters of the congregational churches in the towns of Cambridge,
Watertown, Charlestown, Boston, Koxbury, and Dorchester, mentioned
in the said act, .shall be, and hereby are, vested with all the jiowers and
authority belonging, or in any way appertaining to the o^•erseers of
H.arvard College ; provided, that nothing herein shall be construed to
prevent the legislature of this commonwealth from making such altera-
tions in the government of the said university, as shall be conducive to
its advantage, and the interest of the republic of letters, in as full a
manner as might have been done by the legislature of the late Prov-
ince of the Massachusetts Bay.
Section II.
CHAPTER V.
77)6 Encouragement of Literature, <&c.
Duty of ie<!is- Wisdom, and knowledge, as well as virtue, diffused generally among
lutures and ma- ,i , , V .i i , « *. i • ^ , .
ijistrates iu all tlic Docly ot tuc pcoplc, being iiecessary lor the preservation oi their
CONSTITDTIOX OP MASSACHUSETTS. 29
rights and liberties ; and as these depend on spreading the opportuni- future periods,
ties and advantages of education in the various parts of tlie country, mTnt™ Art.
and among the clifferent orders of the people, it shall be the duty of xviii.
legislatures and magistrates, in all future periods of this common-
wealth, to cherish the interests of Uterature and the sciences, and all
seminaries of them ; especially the university at Cambridge, public
schools and grammar schools in the towns; to encourage private socie-
ties and public institutions, rewards and immunities, for the promo-
tion of agriculture, arts, sciences, commerce, trades, manufactures, and
a natural history of the country ; to countenance and inculcate the
princijiles of humanity and general benevolence, public and private
charity, industry and frugality, honesty and punctuality in their deal-
ings ; sincerity, good humoi-, and all social affections, and generous
sentiments among the people.
CHAPTER VI.
OATHS AND SUBSCRIPTTONS ; INCOMPATIBILITY OF AXD EXCLUSION FROM
OFFICES; PECUNIARY QUALIFICATIONS ; COiMMISSIONS ; WRITS; CONFIRMA-
TION OF LAWS; HABEAS CORPUS ; THE ENACTING STYLE; CONTINUANCE OF
OFFICERS ; PROVISION FOR A FUTURE EEVISAL OF THE CONSTITUTION, &c.
I. Any person chosen governor, lieutenant-governor, councillor, sena- Oatbs, &c
tor or representative, and acce])ting the trust, shall, l)efore lie proceed
to execute the duties of his place or office, make and subscribe the fol-
lowing declaration, viz. :
I, A. B., do declare, that I believe the christian religion, and have a firm persua^ion Abolished, see
of its truth ; and that I am seised and i?ossessed, in my own right, of the property ameudments,
required by the constitution as one qualification for the office or place to which I am '
elected.
And the governor, lieutenant-governor, and councillors, shall make
.and subscribe the said declaration, in the presence of the two houses of
assembly ; and the senators and representatives first elected under this
constitution, before the president and five of the council of the former
constitution, and forever afterwards before the governor and council
for the time being.
And every person chosen to either of tlie jilaces or offices aforesaid,
;is also any person appointed or commissioned to any judicial, execu-
tive, military, or other ofiiee under the government, shall, before he
enters on the discharge of the business of his place or office, take and
subscribe the following declaration, and oaths or affirmations, viz. :
["I, A. B., do truly and sincerely acknowledge, profess, testify and declare, that the Oath ofallegi-
Commonwealth of Massachusetts is, and of right ought to be, a free, sovereign and auce, see suhsti
independent state ; and I do swear, that I will bear true faith and allegiance to the ment''Art. VI. ^
said commonwealth, and that I will defend the same against traitorous ''conspiracies ' ^
and all hostile attempts whatsoever ; and that I do renounce and abjure all allegiance,
subjection and obedience to the king, queen, or government of Great Britain, (as the
case may be) and every other foreign power whatsoever ; and that no foreign prince,
person, prelate, state or potentate, hath, or ought to have, any jurisdiction, superiority,
pre-eminence, authority, dispensing or other power, in any matter, civil, ecclesiastical
or spiritual, within this commonwealth, except the authority and power which is or
may be vested by their constituents in the congress of the United States : and I do fur-
ther testify and declare, that no man or body of men hath or can have any right to
absolve or discharge me from the obligation of this oath, declaration, or affirmation;
and that I do make this acknowledgment, profession, testimony, declaration, denial,
renunciation and abjuration, heartily and truly, accoiding to the common meaning and
acceptation of the foregoing words, without any equivocation, mental evasion, or secret
reservation whatsoever. So help me, God."]
"I, A. B., do solemnly swear and affirm, that I will fiiithfully and Oath of office,
impartially discharge and perform all the duties incumbent on me as
, according to the best of my abilities ami understandinsf,
agreeably to the rules and regulations of the constitution and the laws
of the commonwealth. So help me, God."
30
CONSTITUTION OF MASSACHUSETTS.
Plurality of of-
fices in-oliibitcd
to;;ovornor, &c.
except, tfec.
See ameail-
ments, Art.
VIII.
Same subject.
Incompatible
offices.
.See iimeml-
ments. Art.
VIII.
Same subject.
Bribery, &c.,
disqualify.
Value of money
ascertJiinctl.
Property quali-
fications may be
increased.
See amend-
ments. Art.
XIII.
Provisions re-
specting; com-
misBions.
Provided always, that when any person chosen or appointed as afore-
said, shall be of the denomination of the people called Quakers, and
shall decline taking the said oaths, he shall make his affirmation in the
foregoing form, and subscribe the same, omitting the words " I do
swear,"' '■'■ and abjitre" '■'■ oath 07\^'' '■'■ and abjuration,^'' in the first oath;
and in the second oath, the words " swear and,'''' and in each of them
the words "*S'o /u/p me, God;" subjoining instead therof, ^^IViis I do
under the pains and penalties of perjuryT
And the said oaths or affirmations shall be taken and subscribed by
the governor, lieutenant-governor, and councillors, before the president
of the senate, in the presence of the two houses of assembly ; and by
the senators and representatives first elected under this constitution,
before the president and five of the council of the former constitution ;
and forever afterwards before the governor and council for the time
being; and by the residue of the officers aforesaid, before such persons
and in such manner as from time to time shall be jnescribed by the
legislature.
II. No governor, lieutenant-governor, or judge of the supreme
judicial court, shall hold any other office or place, under the authority
of this commonwealth, except sucli as by this constitution tliey are
admitted to hold, saving that the judges of the said court may hold the
offices of justices of the peace through the state ; nor shall they hold
any other place or office, or receive any pension or salary fiom any
other state or government or jjower whatever.
No person shall be capable of holding or exercising at the same time,
within this state more than one of the following offices, viz.: judge of
probate — sheriff — register of probate — or register of deeds ; and
never more than any two offices whicfi are to be held by apj)ointment
of the governor, or the governor and council, or the senate, or the
house of representatives, or by the election of the people of the state
at large, or of the people of any county, military offices, and the offices
of justices of the peace excepted, shall be held by one person.
No person holding the office of judge of the supreme judicial court
— secretary — attorney-general — solicitor-general — treasurer or receiv-
er-general— judge of probate — commissary-general — ]iresident, pro-
fessor, or instructor of Harvard College — sheriff — clerk of the house
of representatives — register of probate — register of deeds — clerk of
the supreme judicial court — clerk of the inferior court of common
pleas — or officer of the customs, including in this descri])tion naval
officers — shall at the same time have a seat in the senate or house of
representatives ; but their being chosen or appointed to, and accepting
the same, shall operate as a resignation of their seat in the senate or
house of representatives ; and the place so vacated shall be filled up.
And the same rule shall take place in case any judge of the said
supreme judicial court, or judge of probate, shall accejit a seat in coun-
cil ; or any councillor sh.all accept of either of those offices or places.
And no person shall ever be admitted to hold a seat in the legisla-
ture, or any office of trust or importance under the go\erninent of this
commonwealth, who shall, in the due course of law, have been
convicted of bribery or corruj)tion in obtaining an election or ap-
pointment.
III. In all cases where sums of money are mentioned in this consti-
tution, the value thereof shall be computed in silver, at six shillings
and eight pence per ounce ; and it shall be in the power of the legisla-
ture from time to time to increase such qualifications, as to projierty,
of the pei-sons to be elected to offices, as the circumstances of the
commonwealth shall require.
IV. All comnii.ssions shall be in the name of the Commonwealth of
Massachusetts, signed by the governor and attested by the secretary or
CCNoTITtJTION OF MASSACHUSETTS. 31
his deputy, and have the great seal of the commonwealth affixed
thereto.
V. All writs issuing out of the clerk's office in any of the courts of Provisions re-
law, shall be in the name of the Commonwealth of Massachusetts; they "'nck.'s.^I"*^'
shall be under the seal of the court from whence they issue; they shall aiiet. os^
bear test of the first justice of the court to which they sltall be returna- '"'■■'5'"
ble, who is not a party, and be signed by the clerk of such court.
VI. All the laws which have heretofore been adopted, useil and Continuation of
approved in the Province, Colony or State of Massachusetts Bay, and J.""'.pt/,""^'
usually practised on in the courts of law, shall still remain and be in i.Mass. su.
full force, until altered or repealed by the legislature ; such jiarts only ,n i'i'ekt'aou.'.tifi.
exce]ited as are repugnant to the rights and liberties contained in this 2''j,i'S''",!o'' ''"'■
constitution.
VII. The privilege and benefit of the writ of habeas corpus shall be Benefit or luihe-
enjoyed in this commonwealth, in the most free, easy, cheap, expedi- "d ™xccpt^ i"!
tious and am]ile manner; and shall not be suspended by the legislature,
except upon the most urgent and pressing occasions, and for a limited
time, not exceeding twelve months.
VIII. The enacting style, in making and passing all acts, statutes and The enacting
laws, shall be — - " Be it enacted by the Senate and House of Kepresen- ^^^^^'
tatives in General Court assembled, and by the authority of the same."
IX. To the end there may be no failure of justice, or danger arise Officers of for-
to the commonwealth from a change of the form of government, all ment"continucd
officers, civil and military, holding commissions under the government until, &c.
and peo]ile of Massachusetts Bay in New England, and all other offi-
cers of the said government and jseople, at the time this constitution
shall t:ike eflect, shall have, hold, use, exercise and enjoy, all the powers
and authority to them granted or committed, until other persons shall
be apjiointed in their stead: and all courts of law shall proceed in the
execution of the bu.siness of their res])ective <]e]iartments; and all the
executive and legislative officers, bodies and ]>owers shall continue in
full force, in the enjoyment and exercise of all their trusts, employ-
ments and authority; until the general court, and the supreme and
executive officers under this constitution, are designated and invested
with their respective trusts, powers and authority.
X. In order the more effectually to adhere to the principles of the Provision for
constitution, and to correct those violations which by any means may futioJ,"^ consti-
be made therein, as well as to form such alterations as from exjjerience
shall be found necessary, the general court which shall be in the year
of our Lord one thousand seven htindred and ninety-five, shall issue
precepts to the selectmen of the several towns, and to the assessors of
the unincorporated plantations, directing them to convene the qualified
voters of their respective towns and plantations, for the purjjose of
collecting their sentiments on the necessity or expediency of revising
the constitution, in order to amendments.
And if it shall appear, by the returns made, that two-thirds of the
qualified voters throughout the state, v.iio shall assemble and vote in
consequence of the said precepts, are in favor of such revision or
amendment, the general court shall issue precepts, or direct them to be
issued froui the secretary's office to the several towns to elect delegates
to meet in convention for the ]iurpose aforesaid.
The said delegates to be chosen in the same manner and proportion
as their representatives in the second branch of the legislature are by
this constitution to be chosen.
XI. This form of government shall be enrolled on parchment, and Provision for
deposited in the seeretarv's office, and lie a part of the laws of the i"'™'^^!''? «"!i
11 1 ■ 1 •', piiii f. 1 111 puolisninsj tins
land; and printed copies tnereoi shall be prefixed to the book con- constitution,
taining the laws of this commonwealth, in all future editions of the
said laws.
32
CONSTITUTION OF MASSACHUSETTS.
ARTICLES OF A3IENDMENT.
Bill, &c. not ap-
proved withiu
live days, not to
become a law, if
legislature ad-
journ in the
mean time.
3 Mass. ofir.
.See Const.,
Ch. 1, §1, art. 2.
General court
empowered to
charter cities.
Qualifications
of voters for
governor, lieu-
tenant-govern-
or, senators .md
represent.ltives.
11 Pick.olS
See ."imend-
ments, Art. XX.
Notaries public,
how appointed
and removed.
Vacancies in the
offices of secre-
tary and tre.19-
urer, how filled
in case, &c.
See amend-
ments. Art.
XVII.
Commissary-
general may be
appointed, in
case, *tc.
Militia officers,
how removed.
Who may vote
for cant.4ins and
snb.iltems.
Article I. If any biU or resolve shall be objected to, ami not approved
by the governor; and if the general eoiiit shall adjourn within five
daj's aiter the same shall have been laid before the governor for his
approbation, and thereby ])revent his returning it ynth his objections,
as provided by the constitution, such bill or resolve shall not become a
law, nor have force as such.
Art. II. The general court shall have foil power and authority to
erect and constitute municipal or city governments, in any coqiorate
town or towns in this commonwealth, and to grant to the inhabitants
thereof such powei-s, pri\"ileges and immunities, not repugnant to the
constitution as the general court shall deem necessary or expedient for
the regulation and government thereof and to prescribe the manner of
calling and holding public meetings of the inhabitants, in waids or
otherwise for the election of officers under the constitution, and the
manner of returning the votes given at such meetings. Provided, that
no such government shall be erected or constituted in any town not
containing twelve thousand inhabitants, nor unless it be with the con-
sent, and on the application of a majority of the inhabitants of such
town, present and voting thereon, j^ursuant to a vote at a meeting duly
warned and holden for that ]iuqiose. And provided also, that all by-
laws made by such municipal or city government shall be subject, at
all times to be annulled by the general court.
Art. III. Every male citizen of twenty-one years of age and up-
wards, (excejjting paupers ami persons under guardianship) who shall
have resided within the commonwealth one year, and wdthin the town
or district in which he may claim a right to vote, six calendar months
next preceding any election of governor, lieutenant-governor, senators
or representatives, and who shall have paid, by himself or his parent,
master or guardian, any state or county tax, which shall, within two
years next jireceding such election, have been assessed upon him in
any town or district of this commonwealth ; and also, every citizen
who shall l)e, by law, exempted from taxation, ami who shall be, in all
other respects, qualified as above mentioneil, shall have a right to vote
in such election of governor, lieutenant-governor, senators and rejire-
sentatives ; and no other person shall be entitled to vote in such
elections.
Art. IV. Notaries public shall be appointed by the governor in the
same manner as judicial officers are ap]>ointed, and shall hold their
offices during seven years, unless sooner removed by the governor with
the consent of the council, upon the address of both houses of the
legislature.
In case the office of secretary or treasurer of the commonwealth
shall become vacant fi-om any cause during the recess of the general
court, the governor, with the advice and consent of the council, shall
nominate and n))]ioint, under such regulations as may be prescribed by
law, a competent and suitable person to such vacant office, who shall
hold the same until a successor shall be appointed by the general
court. \
Whenever the exigencies of the commonwealth .shall require the ap-
pointment of a commissary-general, he shall be nominated, appointed and
commissioned in such manner as the legislature may, by law, prescribe.
All offieei-s commissioned to command in the militia may be removed
from office in such manner as the legislature may, by law, prescribe.
Art. V. In the elections of captains and .sub.alterns of the militia,
all the members of their respective companies, as weU those under as
those above the age of twenty-one years, shall have a right to vote.
CONSTITUTION OF MASSACHUSETTS. 33
Art. VI. Instead of tlie oath of allegiance prescribed b_y tlie consti- Oath to be taken
tution, the following oath shall be taken and subscribed l)y every person sL^Const*!"'* '
chosen or appointed to any office, civil or military under the govern- Chap.vi. Art.i.
ment of this commonwealth, before he shall enter on the duties of his
office, to wit : — •
"I, A. B., do solemnly swear that I will bear true faith and allegiance
to the Commonwealth of Massachusetts, and will support the constitu-
tion thereof. So help me God."
Provkh'd, That when any person shall bo of the denomination called or affirmation,
Quakers, and shall decline taking said oath, he shall make his affirmation '" ''''*''' '*"'■
in the foregoing form, omitting the word "swear" and inserting instead
thereof the word "affirm;" and omitting the words "So help me God,"
and subjoining, instead thereof, the words "This I do under the pains
and penalties of ])erjury."
Art. VII. No oath, declaration or subscription, excepting the oath Tests aboiish-
jirescribed in the i)receding article and the oath of office, sh.all be re- '^'^'
quireil of the governor, lieutenant-governor, councillors, senators or
re])resentati\es, to qualify them to perform the duties of their rcsj)ective
offices.
Art. VIII. No judge of any court of this commonwealth, (except iDcompatibiUty
the court of sessions) and no person holding any office under the au- "' "flJi^s.
thority of the United States (postmasters excepted) shall, at the same
time, hold the office of governor, lieutenant-governor, or councillor, or
have a seat in the senate or house of re])resentatives of this common-
wealth ; and no judge of any court in this commonwealth (exce])t the
court of sessions) nor the attorney-general, solicitor-general, county-
attorney, clerk of any court, sheriff, treasurer and receiver-general, regis-
ter of probate, nor register of deeils, shall continue to hold his said office
after being elected a member of the Congress of the United Stati's, and
accepting that trust; but the acceptance of such trust by any of the
officers aforesaid shall be deemed and taken to be a resignation of his
said office ; and judges of the courts of common pleas shall hold no other
office under the government of this commonwealth, the office of justice
of the peace and militia offices excepted.
Art. IX. If, at any time hereafter any specific and jiarticular amend- Amendments to
ment or .amendments to the constitution be proposed in the general how made'.'''
court, and agreed to by a majority of the senators and two thirds of the
members of the house of representatives present and voting thereon,
such ]iroposed amendment or amendments shall be entered on the jour-
nals of the two houses, with the yeas and nays taken thereon, and referred
to the general court then next to be chosen, and shall be published ; and
it; in the general court next chosen as aforesaid, such pro])osed ameml-
ment or amendments shall be agreed to by a maj<5rity of the senators
and two-thirds of the memliers of the house of representatives present
and voting thereon ; then it shall be the duty of the general court to
submit such proposed amendment or amendments to the peo])le ; and if
they shall be approved and ratified by a majority of the qualified voters
voting thereon, at meetings legally warned and holden for that jiurpose,
they shall become part of the constitution of this commonwealth.
Art. X. The jiolitical year shall begin on the first Wednesday of Commencement
January instead of the last" Wednesday of May, and the general court "i political ye".
shall assemble every year on the said "first Wednesday of January, and
shall proceed at that session to make all the elections, and do all tlie
other acts which are by the constitution required to be made and done
at the session which has heretofore commenced on the last Wednesday
of May. And the general court, shall be dissolved on the day next pre- and termiua-
ceding the first Wednesday of January, without any proclamation or ^i""-
other act of the governor. But nothing herein contained shall jirevent
the general court from assembling at such other times as they shall
5
CONSTITUTION OF MASSACHaSETTS.
Meetinj^s for
the choii^e of
^'overuor, lieu-
tenant-goVL'ru-
or, &e., when to
be held.
May be ad-
journed.
.See amend-
ments, Art. XV.
Article, when to
ffo into opera-
tion.
Inconsistent
provisions an-
nulled.
Religious free-
dom estab-
lished.
.See Dec. of
llights, Art.
III.
Census of rata-
ble polls to be
taken in ls:ir,
and decennially
thereafter.
See amend-
ments, Art.
XIII. and XXI.
Representa-
tives, how ap-
portioned.
judge noeessaiy, or when called together by the governor. The gov-
ernor, lieutenant-governor and councillors, shall also hold their respec-
tive offices for one year next following the first We<lnesday of January,
and until others are chosen and qualified in tiieir stead.
The meeting for the choice of governor, lieutenant-governor, senators
and representatives shall be held on the second Monday of November
in every year; but meetings may be adjourned if necessary, for the
choice of representatives, to the next day, and again to the next suc-
ceeding day, but no further. But in case a second meeting shall be
necessary for the choice of representatives, such meetings shall be held
on the fourth Monday of the same month of November.
All the other provisions of the constitution respecting the elections
and proceedings of the membei-s of the general court, or of any other
officers or persons whatever, that have reference to the last Wednesday
of May, as the commencement of the ]"iolifical year, shall be so far
altered as to have like refei-enee to the fii-st Wednesday of J.-inuary.
This article shall go into ojieration on the first day of Octolier next
following the day when the same shall be duly ratified and adopted as
an amendment of the constitution ; and the governoi-, lieutenant-gov-
ernor, councilloi-s, senators, representatives and all other state officers,
who are annually chosen, and who shall be chosen for the cui-rent year,
when the same shall go into ojieration, sliall hold their i-esjiective offices
until the first Wednesday of January then next following, and until
others are chosen and qualified in their stead, and no longer. And the
first election of the governor, lieutenant-governoi', senators and repi'esen-
tatives to be had in virtue of this aitiele shall be had conform.ably there-
unto, in the month of November following the day on which the same
shall be in force, and go into operation, pursuant to the foregoing pro-
vision.
All the ])rovisions of the existing constitution inconsistent with the
provisions herein contained are hereby wholly annulled.
Art. XI. Instead of the third article of the bill of rights, the follow-
ing modification and amendment thereof is substituted: —
"As the ])ublic worship of God and instructions in ])iety, religion and
morality, promote the ha])])iness and ]iros])erity of a peo]ile, and the
security of a rejndjiican government ; tliei-efore, the several religious
societies of this commonwealth, whether coi'poi'ate or unincorporr.te, at
any meeting legally warned and holden for that purpose, .shall ever have
the right to elect their pastors or religious teachers, to contract with
them for their su|)port, to raise money for erecting and re])aii'ing houses
for public worship, for the maintenance of religious instruction, and for
the payment of necessary expenses: and all jiersons belonging to any
religious society shall be taken and held to be members, until they shall
file with the clerk of such society, a written notice, declaring the dissolu-
tion of their meniber.'^hip, and thenceforth shall not be liable, for any
grant or contract, which may be thereafter made, or entered into by such
society: and all religious sects and denominations, demeaning them-
selves peaceably and as goo<l citizens of the commonwealth, shall be
equally under the protection of the L-iav ; and no subordination of ;iny
one sect or denomination to another shall ever be estal)lished liy law."
Art. XII. In order to jirovide for a re]>rcsentation of the citizens of
this commonwealth, founded u]ion the pi-inci])k'S of equality a census of
the r:;table ]iol!s, in each city, town and district of the commonwealth, on
the first day of May, shall be taken and returned into the secretary's
office, in such manner as the legislatui'c sh.all jn-ovide, within the month
of May, in the year of our Lord one thousand eight hundred and thirty-
seven, and in every tenth year thereafter, in the month of ]May, in man-
ner aforesaid, and each town or city having three hiin(b'ed ratable polls
at the last preceding decennial census of polls, may elect one representa-
CONSTITUTION OP MASSACHUSETTS. 35
tivc, find for every four hundreil and fifty ratable polls in addition to the
first three hundred, one re|ire!^entative more.
Any town having less than three hundred ratable ]iolls sliall be rep- Tnwiis having
resented thus : The whole number of ratable polls, at the last preceding r.'uawiMioi'ia,
decennial census of polls, shall be multiplied by ten, and the product iiow lupreseut-
divided by three hundred, and such town may elect one representative ^ '
as many years within ten years, as three hundred is contained in the
product aforesaid.
Any city or town having ratable polls enough to elect one or more Fractions, how
representatives, with any number of polls beyond the necessary number, '■'•'P'<;8™ti^<i.
may be represented as to that surplus number by niultijilying such sur-
plus number by ten and dividing the ]jro<luct by foui' hundred and fifty ;
and such city or town may elect one additional representative as many
years within the ten years as four hundred and fifty is contained in the
product aforesaid.
Any two or more of the several towns and districts may, by consent tovtob may
of a majority of the legal voters present at a legal meeting, in each of s™5ativo*diB?
said towns and districts respectively called for tliat pur]iose, and held tiicts.
previous to the first day of July in the year in which the decennial
census of polls shall be taken, form themselves into a re])resentative dis-
trict, to continue until the next decennial census of polls, for the election
of a re]iresentative, or rejiresentatives, and such district shall have all
the rights, in regard to representation, which would belong to a town
containing the same number of ratable ])olls.
The governor and council shall ascertain and determine within the Thp governor
months of July and August, in the year of our Lord one thousand eight JSllll.vinlne'the
hundred and thirty-seven, according to the foregoing princijiles, the number of rep-
number of representatives, which each city, town and representative dis- wMch'oaciT *"
trict is entitled to elect, and the number of years ^\'ithin the ]ieriod of town is entitled,
ten years then next ensuing, that each city, town, and rejiresentative
district may elect an additional rei>resentative, and where any town has
not a sufficient number of polls to elect a representative each year then
how many years within the ten years, such towni may elect a rejiresen-
tative, and the same shall be done once in ten years thereafter by the New npportion-
governor and council, and the number of ratable noils in each decennial ""Liitiobemade
,.,,,,,, . ^ once m every
census of polls, shall determine the number ot representatives, which ten years.
each city, town and representative district may elect as aforesaid, and
when the number of representatives to be elected l)y each city, town or
re])resentative district is ascertained atid deterniinod as aforesaid, the
governor shall cause the same to be published forthwith for tiie informa-
tion of the people and that number shall remain fixed and unalterable
for the period of ten years.
All the provisions of the existing constitution inconsistent with the inconsistent
provisions herein contained, are hereby wholly annulled. nSMl""^ *"'
Art. XIII. A census of the inhabitants of eacli city and town, on census of in-
the first day of JVIay, shall be taken, and returned into the secretary's {!;£,'n'i",''s4'o,'"'
office, on or before the last day of June, of the year one thousand eight ""'i deeenmaiiy
hundred and forty, and of every tenth year thereafter, wliich census basis of appor-
shall determine the aijportionment of senators and representatives for tionment of
,,,^^ ^ ^ * senators and
the term of ten years. representatives.
The several senatorial districts now existing, shall be permanent. Senatorial dis-
The senate shall consist of forty members ; and in the year one thousand 1,'ormanen?'^''''
eight hundred and forty, and eveiy tenth year thereafter, the governor f^'^e amend-
and council shall assign the number of senators to be eliosen in each xxi*/.' ^'^'
district, according to the number of inhabitants in the same. But, in
all cases, at least one senator shall he assigned to each district.
The members of the house of representatives shall be ajijiortioned in House of reprc-
the following manner : Every town or city containing tweh'e hundred Jimiortioned'.'''"
inhabitants, may elect one representative ; and two thousand four huu- Sec amend-
36
CONSTITUTION OF MASSACHUSETTS.
mcnts, Art.
XXI.
Small towns,
liow represeut-
ed.
Tm\Ti8 may
iniiteiuto ropre-
scntative dis-
tricts.
Basis of repre-
sentation, and
ratio of in-
crease.
The gfovernor
and council to
apportion the
number of rep-
resentatives of
each to\vn once
in every ten
years.
Councillors to
be chosen from
the people at
hir^e. See
amendments.
Art. XVI.
Qualifications
of councillors.
Freehold as a
qualilic.ation for
a seat in {gener-
al court or
council not re-
quired.
Klections by
the people to be
by plurality of
votes.
Time of annual
election dl'i^ov-
ernor and legis-
lature.
Eight council-
lors to be cho-
sen by the peo-
ple.
dred inliabitnnts shall be the mran increasing number which shall enti-
tle it to an additional representative.
Every town containing less than twelve hundred inhabitants, shall be
entitled to elect a representative as many times, within ten j-ears, as the
number one hundred and sixty is contained in the number of the inhab-
itants of said town. Such towns may also elect one representative for
the year in which the valuation of estates within the commonwealth,
shall be settled.
Any two or more of the several towns ma}^ by consent of a m.njority
of the legal voters present at a legal meeting, in each of said towns
resi)eetivel_y, called for that purjiose, and held before the first day of
August, in the year one thousand eight hundred and forty, and every
tenth year thereafter, form themselves into a re])resentative district, to
continue for the term of ten years ; and such district shall have all the
riglits in regard to representation, which would belong to a town con-
taining the same number of inhabitants.
The number of inhabitants which shall entitle a town to elect one
representative, and the mean increasing number, which shall entitle a
town or cit}^ to elect more than one, and also the number by Avliich the
population of towns, not entitled to a rej)resentative every j-ear is to be
divided, shall be increased respectively, bj' one-tenth of the numbers above
mentioned, whenever the po])ulation of the commonwealth shall have
increased to seven hundred and seventy thousand, an<l for every addi-
tion.al increase of seventy thousand inhabitants, the same addition of one-
tenth shall be made respectively to the said numbers above mentioned.
In the year of each decennial census, the governor and council shall,
before the first day of September, ajiportion the number of rejiresenta-
tives which each city, town, and rejjresentative district is entitled to
elect, and ascertain how many years within ten years, any town may
elect a representative, which is not entitled to elect one every year ;
and the governor shall catise the same to be published forthwith.
Nine councillors shall be annually chosen from among the people at
large, on the first Wednesday of January, or as soon thereafter as may
be, by the joint ballot of the senators and representatives assembled in
one room, who shall, as soon as may be, in like manner, fill up any
vacancies that may happen in the council, by death, resignation or
otherwise. No person shall be elected a councillor, who has not been
an inhabitant of this commonwealth for the tei'in of five years imme-
diately jireceding his election ; and not more than one councillor shall
be chosen from any one senatorial district in the commonwealth.
No possession of a freehold or of any other estate shall be required
as a qualification for holding a seat in either branch of the general court,
or in the executive council.
Art. XIV. In all elections of civil ofiieers by the people of this
commonwealth, whose election is provided for by the constitution, the
person having the highest number of votes shall be deemed and declared
to be elected.
Art. XV. The meeting for the choice of governor, lieutenant-gov-
ernor, senators and representatives, shall be held on the Tuesday next
after the first Monday in November, annually ; but in case of a failure
to elect representatives on that day, a second meeting shall be holden
for that purpose on the fourth Monday of the same month of November.
Art. XVI. Eight councillors shall be annually chosen by the inhab-
itants of this commonwealth, qualified to vote for governor. The elec-
tion of councillors shall be determined by the same rule that is required
in the election of governor. The legislature, at its first session after this
amendment shall have been adopted, and at its fir.st session after the
next state census .shall have been taken, and at its first session after
each decennial state census thereafterwards, shall divide the common-
CONSTITUTION OF MASSACHUSETTS. 37
wealth into eight districts of contiguous territoiy, each containing a
number of inhabitants as nearly equal as practicable, witluuit dividing
any town or ward of a city, and each entitled to elect one councillor:
provided^ luncever, that if, at any time, the constitution shall jirovide for
the division of the commonwealth into forty senatorial districts, then
the legislature shall so arrange the councillor districts that each district Legislature to
shall consist of five contiguous senatorial districts, as they shall be, from ii'»t"ct state.
time to time, established In' the legislature. iSTo person shall be eligible
to the office of councillor who has not been an inhabitant of the com-
monwealth for the term of five years immediately ])receding his elec-
tion. The day and manner of the election, the return of the votes, and D.iy and man-
the declaration of the said elections, shall be the same as are recjuired in J^^'^ofi'wtio".
tlie election of governor. AVhenever there shall be a failure to elect the
full number of councillors, the vacancies shall be filled in tjie same man- vacancies, how
ner as is required for lilliiig vacancies in the senate; and vacancies occa- ''""'•
sioned by death, removal Irom the state, or otherwi.se, shall be tilled in
like mannei', as soon as may be after such vacancies shall have hn]i]iened.
And that there may be no delay in the organization of the government Organization of
on the first Wednesihiy of January, the governor, with at least live menf."™™
councillors for the time being, shall, as soon as may be, examine the
returned co])ies of the records for the election of governor, lieutenant-
governor, and councillors ; and ten days before the said first Wednesday
hi January he shall issue his summons to .such persons as appear to be
chosen, to attend on that day to be qualified accordingl)' ; and the secre-
tary shall lay the returns before the senate and house of rejiresentatives
on the said first Wednesd.ay in January, to be by them e.xamined ; and
in case of the election of either of said officers, the choice shall lie by
them declared and published ; but in case there shall be no election of
either of said officers, the legislature shall proceed to fill such vacancies
in the manner provided in the constitution for the choice of such officers.
Art. XVII. Tiie secretary, treasurer and recei\er-gcneral, auditor, Kloction of sec-
and attorney-general, shall be chosen annually, on the day in November [.'rlir^amiitor
])rescribed for the choice of governor; and each ])erson then chosen as ",'|'' ;'.","™'^y"
such, duly qualified in other respects, shall hold his office foi' the term pcopi". *
of one year from the third Wednesday in January next thereafter, and
until another is chosen and qualified in his stead. The qualification of
the voters, the manner of the election, the return cf the votes, and the
declaration of the election, shall be such as are required in the election
of governor. In case of a failure to elect either of said officers on the Vacancies, how
day in November aforesaid, or in case of the decease in the mean time '^ '
of the person elected as such, such officer shall be chosen on or before
the third Wednesday in January next thereafter from the two persons
\\\\o had the highest number of votes tor said offices on the day in
November aforesaid, by joint ballot of the senators and representatives
in one room ; and in case the office of secretary, or treasurer and receiver-
general, or auditor, or attorney-general, shall become vacant from any
cause during an annual or special session of the general court, such
vacancy shall in like manner be filled by choice from the jieople at
large ; but if such vacancy shall occur at any other time, it .shall be sup-
plied liy the governor Ijy aii]iointment, with the advice and consent of
the council. The person so chosen or a]>pointed, duly qualified in other
respects, shall hold his office until his successor is chosen and duly qual-
ified in his stead. In case any person chosen or appointed to either of To qualify
the offices aforesaid, sliall neglect, for the si)ace often days after he oi'h'c'fwise office
could otherwise enter upon his duties, to qualify himself in all resjiects to in- <li-omcd
to enter upon the discharge of such duties, the office to which he has ^ '"'""'•
been elected or appointed shall be deemed vacant. No person shall be Qu.iiifii-itions
eligible to either of said offices unless he shall have been an inhabitant of '''■''"'*'"^'
this commonwealth five years next preceding liis election or appointment.
4
38
CONSTITUTION OF MASSACHUSETTS.
School moneys
not to be ap-
plied for secta-
rian schools.
Legislature to
])n'seribe for
the election of
sheriffs, regis-
ters of probate,
&c.
S Gray, 1.
Heading consti-
tution in Eng-
lish and writ-
ing, necessary
qualifications of
voters.
Proviso.
Census of legal
voters and ot in-
habitants, when
talcen, &c.
See Gen. Stat.
ch. 20.
House of repre-
sentatives to
consist of :;40
members.
Legislature to
apportion, &c.
Qualifications
Art. XVIII. All moneys raised by taxation in the towns and cities
for tlie support of public scliools, and all moneys which may be apj)ro-
priated by the state for the support of common schools, shall be apjilied
to, and expended in, no other schools th.'in those which are conducted
according to law, untler the order and superintendence of the authori-
ties of the town or city in which tlie money is to be expended ; and
such moneys shall never be ajijiropriated to any religious sect for the
maintenance exclusively of its own school.
Art. XIX. Tlie legislature shall jirescribe, by general law, for the
election of sheriffs, registers of probate, commissioners of insolvency,
and clerks of the courts, by the people of the several counties, and that
district-attorneys shall be chosen Ijy tlie people of tlie several districts,
for such term of office as the legislature shall prescribe.
Art. XX. No person shall have the right to vote, or be eligible to
office under the constitution of this commonwealth, who shall not be
able to read the constitution in the English language, and write his
name : provided, hoicever, that the provisions of tliis amendment shall
not apply to any person prevented by a physical disability from com-
plying with its requisitions, nor to any person who now has the right to
vote, nor to any persons who shall lie sixty years of age or upwards at
the time this amendment shall take effect.
Art. XXI. A census of tlie legal voters of each city and town, on
the first day of Maj-, shall be taken and returned into the office of the
secretary of the commonwealth, on or before the last day of June, in
the year one thousand eight hundred and fifty-seven ; and a census of
the inliabitants of each city and town, in the year one thousand eight
hvmdred and sixty-five, and of every tenth year thereafter. In the cen-
sus aforesaid, a special enumeration shall be made of the legal voters ;
and in each city, said enumeration shall sjiecify the number of such legal
voters aforesaid, residing in each ward of such city. The enumeration
aforesaid shall determine the apportionment of representatives for the
periods between the taking of the census.
The house of representatives shall consist of two hundred and forty
members, which shall be apportioned, by the legislature, at its first ses-
sion after the return of each enumeration as aforesaid, to the several
counties of the commonwealth, equally, as nearly as may be, according
to their relative numbers of legal voters, as ascertained by the next pre-
ceding special enumeration ; and the town of Cohasset, in the county of
Norfolk, shall, for this purpose, as well as in the formation of districts,
as hereinafter provided, be considered a part of the county of Plymouth ;
and it shall be the duty of the secretary of the commonwealtli, to cer-
tiiy, as soon as may be after it is determined by the legislature, the
number of representatives to which each county shall be entitled, to the
board authorized to divide each county into representative districts.
The mayor and aldermen of the city of Boston, the county commission-
ers of other counties than Suffolk, — or in lieu of the mayor and alder-
men of the city of Boston, or of the county commissioners in each
county other than Suffolk, such board of sjiecial commissioners in each
county, to be elected by the people of the county, or of the towns therein,
as may for that jjurpose be jirovided by law, — shall, on the first Tuesday
of August next after each assignment of representatives to each county,
assemble at a shire town of their respective counties, and jiroceed, as
soon as may be, to divide the same into re]ireseiitative districts of con-
tiguous territory, so as to apportion the re]iresentation assigned to each
county equally, as nearly as may be, according to the relative number
of leg.al voters in the several districts of each county; and such districts
shall be so formed that no town or ward of a city shall be divided there-
for, nor shall any district be made which shall be entitled to elect more
than three representatives. Every representative, for one year at least
CONSTITUTION OF MASSACHUSSTTS. 39
next proeeclinE; his election, shall have been an inhabitant of the flistrict ofropresenta-
for winch he is chosen, and shall cease to represent such district when *"''''■
he shall cease to be an inhabitant of the commonwealth. The districts
in each county shall be numbered by the board creating the same, and
a descrijition of each, with the numbers thereof and the number of legal
voters therein, shall be returned by the board, to the secretary of the
commonwealth, the county treasurer of each county, and to the clerk
of every town in each district, to be filed and kept in their respective
offices. The manner of calling and conducting the meetings for the
choice of representatives, and of ascertaining their election, shall be
prescribed by law. Not less than one hundred members of the house One hundred
of representatives shall constitute a quorum for doing business; but a "^^bers a quo-
less number may organize temporarily, adjourn from day to day, and
compel the attendance of absent members.
Art. XXII. A census of the legal voters of each city and town, on census, &-c.
the first day of May, shall be taken and returned into the office of the *^'^.,'J^"- ''''^'•
secretary of the commonwealth, on or before the last day of June, in
the year one thousand eight hundred and fifty-seven ; and a census of
the inhabitants of each city and town, in the year one thousand eight
hundred and sixty-five, and of every tenth year thereafter. In the cen-
sus aforesaid, a special enumeration shall be made of the legal voters,
and in each city said enumeration shall sjjecify the ninnber of such legal
voters aforesaid, residing in each ward of such city. The enumeration
aforesaid shall determine the apportionment of senators for the periods
between the taking of the census. The senate shall consist of forty Senate to con-
members. The general court shall, at its first session after each next bers"'^*"'^™
preceding special enumeration, diviile the commonwealth into forty dis- Senatorial dis-
tricts of adjacent tenitory, each district to contain, as nearly as maybe, t™'s, &c.
an equal number of legal voters, according to the enumeration aforesaid :
provided, hotcever, that no town or ward of a city shall be divided there- Proviso,
for; and such districts shall be fonned, as nearly as may be, without
uniting two counties, or parts of two or more counties, into one district.
Each district shall elect one senator, who shall have been an inhabitant Qualifications
of this commonwealth five years at least immediately preceding his "f senators.
election, and at the time of his election shall be an inhabitant of the
district for which he is chosen ; and he shall cease to represent such
senatorial district when he shall cease to be an inhabitant of the com-
monwealth. Not less than sixteen senators shall constitute a quorum sixteen mem-
for doing business ; but a less number may organize temporarily, adjourn ^'''^^ ^ quorum,
from day to day, and compel the attendance of absent members.
Art. XXIII. No person of foreign birth shall be entitled to vote, Residence of
or shall be eligible to office, unless he shall have resided within the juris- quSI-wr^Aurtu-
diction of the United States for two years subsequent to his naturaliza- raiized citizens,
tion, and shall be otherwise qualified, according to the constitution and frage o/make
laws of this commonwealth : /jroj'iV^w/, that this amendment shall not <;iig:iWe to of-
affect the rights which any person of foreign birth possessed at the time
of the adoption thereof; and provided, further, that it shall not aftect
the rights of any child of a citizen of the United States, bom during
the temporary absence of the parent therefi-om.
[Note — The Constitution of Massachusetts was agreed upon by delegates of the people, in
convention, begun and held at Cambridge, on the first day of September, 1779, and continued by
adjournments to the second day of March, 1780, when the convention adjourned to meet on the
first Wednesday of the ensuing June. In the meantime the constitution was submitted to the
people, to be adopted by them, provided two-thirds of the votes given should be in the affirma-
tive. When the convention assembled, it was found that the constitution had been adopted by
the requisite number of votes, and the convention accordingly liesolved, " That the said Constitu-
tion or Frame of Government shall take place on the last ^Vednesday of October uext ; and not
before, for any purpose, save only for that of making elections, agreeable to this resolution."
The first legislature assembled at Boston, on the twenty -fifth day of October, 1780.
40 CONSTITUTION OP MASSACHUSETTS.
The first nine Articles of Amendment were submitted, by dele<jates in convention assembled,
November 16, 1820, to the people, and by them ratifled and adopted, April 0, Isai.
The tenth Article of Amendment was adopted by the legislatures of the political years lS2'.)-.jO,
and ia30-31, respectively, and was approved and ratiBed by the people. May 11, 1831.
The eleventh Article of Amendment was adopted by the legislatures of the pohtieal years 1832
and 1833, respectively, and was approved and ratified by the people, November 11, 1833.
The twelfth Article of Amendment was adopted by the legislatures of the political years 18.35
and 1&36, respectively, and was approved and ratifled by the people, the fourteentli day of No-
vember, 1836.
The thirteenth Article of Amendment was adopted by the legislatures of the political years
1839 and 1840, respectively, and was approved and ratified by the people, the sixth day of April,
l&tt.
The fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth Articles of
Amendment were adopted by the legislatures of tlie political years 1854 and 1855, respectively,
and ratifled by the people, the twenty-third day of May, 1855.
The twentieth, twenty-first, and twenty-second Articles of Amendment were adopted by the
legislatures of the political years 185(5 and 185?, respectively, and ratifled by the people on the
first day of May, 1857.
The twenty -third Article of Amendment was adopted by the legislatures of the political years
1858 and 1859, respectively, and ratified by the people on the ninth day of May, 1859.]
GENERAL STATUTES
OF THE
COMMONWEALTH OF MASSACHUSI<:TTS.
(41)
COMMONWEALTH OF MASSACHUSETTS,
IN THE YEAR ONE THOUSAND EIGHT HUNDRED AND FIFTY-NINE.
AN ACT
FOR
REVISING AND CONSOLIDATING
THE
GENERAL STATUTES
OF THE
COMMONWEALTH.
Be it enacted hy the Senate and House of Rcpresen-
tatives, in General Court assembled, and hy the
authmnty of the same, in manner following, that is
to say :
(42)
PART I.
OF THE INTERNAL ADMINISTRATION OF THE
GOVERNMENT.
TITLE I.
OF THE JURISDICTION OF THE C0MM0N"WT:ALTH, LEGISLATURE,
STATUTES, PUBLIC REPORTS, AND DOCUMENTS, STATE
LIBRARY, AND OTHER PUBLIC PROPERTY.
Chapter 1. — Of the Jurisdiction of the Commonwealth and places ceded to the
United States.
CavPTER 2. — Of the Legislature.
Chapter 3. — Of the Statutes.
Chapter 4. — Of Public Reports and Documents.
CttiPTER 5. — Of the State Library and other Public Property.
CHAPTER 1.
OF THE JURISDICTION OF THE COMMONWEALTH ANB PLACES CEDED
TO THE UNITED STATES.
Section
1. Territorial limits of the commonwealth, and
counties.
2. Jurisdiction of the commonwealth.
3. Places ceded to the United States and sub-
ject to concurrent jurisdiction.
4. Officers of the coast survey may enter upon
lands, erect stations, &c.
Section
5. County commissioners to assess damages
on petition of either party.
G. Commissioners to file report, Ac Appeal.
Trial.
7. Tender, and costs after refusal.
8. Costs, how taxed.
9. Penalty for injuring signals, &c.
Sectiox 1. The territorial limits of this commonwealth extend one Territorial iim-
marine league from its sea-shore at low-water mark. When an inlet monweaUh'^d
or arm of the sea does not exceed two marine leagues in width, between counties,
its headlands, a straight line from one headland to the other is equiva- '
lent to the shore line. The boundaries of counties bordering on the
sea extend to the Une of the state as above defined. The jurisdiction
of counties separated by waters within the jurisdiction of the state is
concurrent upon and over such waters.
Sect. 2. The sovereigntv and jurisdiction of the commonwealth Jurisdiction of
extend to all places within tlie boundaries thereof; subject to the rights "'euUh!™""'
of concurrent jurisdiction granted over places ceded to the United R- s. i, § i.
States.
Sect. 3. The several places ceded to the United States for forts, Places ceded to
arsenals, dock-yards, light-houses, hospitals, or other purposes, and over statf^and sub-
which concurrent jurisdiction has been granted to the United States, ject to concur-
(i3)
44 PLACES CEDED TO THE UNITED STATES. [ChAP. 1.
rentjurisiiic- shall continue to be subject to such concuiTcnt jurisdiction, according
R? s". 1 § 2. ^'^ ^Ji"^ tenor and eifect of the resjsective laws by which they were ceded,
s Mass. 72. that is to say : —
iMet. 5S0. ' The several [niblic light-houses with the lan<ls and tenements there-
1790,4. unto belonging : the light-house on Light-House Island in the harbor
of Boston ; the two light-houses on Thacher's Island in the county of
Essex ; the two light-houses on the north en<l of Plumb Island in tlie
county of Essex ; the light-house on the Gurnet Head in tlie county of
Plymouth; the light-house on Sandy Point in the county of Nantucket;
also, the four buoys at the mouth of Merrimack Kiver, namely — one
on the Hum Sands, one on the Sunken Kocks, one on the Ganway Rock,
and one on the Half-Tide Rocks ; also the beacon on the spit of saud
near the light-house in the harbor of Boston :
1795, 18. The light-house situate near tlie entrance of the harbor of Nantucket :
1795,25. The several tracts of land for the light-houses authorized by con-
gress to be erected upon Baker's Island and Cape Cod :
1798, 13. Castle Island, Governor's Island, George's Island, and LoveFs Island,
184ft' i«f ^'^ ^^^^ harbor of Boston ; and a tract of land in Springfield :
1798, 60. A tract of land for a light-house at that part of Martha's Vineyard
called Gay-Head :
1800, 7. A tract of land for light-houses on Wigwam Point and Eastern Point
1831, 45. j^ Gloucester :
1800, 17. A tract of land for a light-house at the end of Clarke's Point in New
Bedford :
1800, as. A tract of land for a navy-yard in Charlestown:
iloo'ro. Tracts of land for light-houses at Cape Poge :
mis, i3ii. A tract of land on Martha's Vineyard and the building erected thereon
''^'''''- as a hospital:
180S, 21, § 79. A tract of land for light-houses at or near the entrance of Chatham
harbor on Cajie Cod :
1810,54. A tract of land for a light-house at the entrance of tlie harbor of
Scituate :
1816.1. The rocks and flats under the piers in Merrimack River called the
Half-Tide Rocks and North Rocks :
1816, 15. A tract of land in Watertown for erecting forts, magazines, arsenals,
dock-yards, and other needful buildings :
1816,47. Tracts of land for light-houses on Race Point in Provincetown, at
1817,7. Q,. near Tarpaulin Cove on Nashaun Island, and on Point Gammon in
Yarmouth :
1817.2. A tract of land for a light-house on the West Chop of Holmes' Hole
on the island of Martha's Vineyard :
1819,69. Half-Way Rock in Boston Bay for a beacon; also Bird Island in
Buzzard's Bay for a light-house ; and a tract of land for a light-house
on Long Island Head in Boston harbor :
1820.3. Ten Pound Island in the harbor of Gloucester for a light-house :
1821, 35. A part of Tinker's Island, Marblehead Rock, and the East Rock of
Cat Island :
1822,23. A tract of land for a light-house on the Island of Kutta-IIunk:
1823, 12. A tract of land for a light-house on Monanioy Point in the county
of B.arnstablc :
1825, 181. Tracts of land in Chelsea for hospitals and a depot of ordnance
1848; 167. ^^O'"*"* •
1826138.' Tracts of land for light-houses on Long Point in Provincetown; and
on Sandy Neck in Barnstable :
1828,63. Dumpling Rock in Buzzard's Bay, and tracts of land on Nobsque
Point in Falmouth and at the entrance of Edgartown Harbor; for
light-houses :
1828, 30. A tract of land near the mouth of the Merrimack River, in Newbury,
for a pier or breakwater :
Chap. 1.] places ceded to the united states. 45
A tract of land for a light-house on West Chop in Tisbiiry on Mar- i83o, in.
tha's Vineyard :
The jilaee called Nix's 3Iate in the harbor of Boston for a beacon : js32, 41.
A tract of land, not exceeding four acres at the Neck in Marblehead; 1^35' g^'
for a light-house :
Straitsmouth Island in the harbor of Gloucester for a light-house : js.i5, 1.^1.
Tracts of land for light-houses in Nantucket and at Nid's Point in ]s:j8, i38.
Rocliester:
Tracts of land for light-houses on Ipswich Beach in Ipswich, and near iS38, 104.
Nauset Beach in Eastham, and on Mayo's Beach in Wellfleet:
The i)laee called Minot's Kock or Ledge in Massachusetts Bay for a i84r, 109.
light-house:
A tract of land not exceeding one-quarter of an acre, above high- 1847,235.
water mark, near the Old Fort in Fairhaven, and one of the Elizabeth
Islands called the Sow and Pigs lying oif the south-west side of the
Island of Kutta-Hunk :
A tract of land for a light-house, not exceeding two acres, on Palm- isis, h.
er's Island in the harbor of New Bedford : and a tract of land for a
light-house, not exceeding six acres, on AVing's Neck in Sandwich :
A tract of land for a light-house in Truro: 1849, 40.
A tract of land on Great Brewster Island in the harbor of Boston : is49,45.
A tract of land for a light-house at llyannis in Barnstable: isi9, 07.
A tract of land for a light-house at Sancoty Head in Nantucket : I849, ion.
Three tracts of land, not exceeding one acre each, at the head ofissis, 72.
Holmes' Hole harbor in Tisliiirv, for light-houses.
A tract of laud for a light-house at Bass River in the county of Bam- ims, 28s.
stable :
Such tracts of land in Provincetown and Truro as may be used and iso.!, 2%, :tuii.
imjjroved for the preservation of Cape Cod harbor:
Such tracts of land in Falmouth as maj- be necessary for the con- 1853, 3or..
structiou and maintenance of a sea wall in the harbor of Great Woods
Hole :
Egg Rock Island near Nahant ; and a site for a light-house in Truro : is,55, 17.
Sites for ligiit-houses on or near the Point of Rocks in Westport ; and isss, 17.
at the S])it in the harbor of Boston :
A site for a beacon on Point Alderton Bar in the harbor of Boston : isso, 17.
A tract of land in Gloucester for a custom-house: 1855,21.
A tract of land in Barnstable for a custom-house : isss, 127.
Egg Island Shoal in the hailjor of New Bedford ; and such tracts of issn, 100.
land on Clarke's Point in New Bedford as the United States deem need- '**"■ '"•
ful for the ]iurposes of military defence, and over the contiguous shores,
flats, and ^\'aters, within four hundred yards from low-water mark :
A tract of land not exceeding six acres on Billingsgate Island for a 1857, 11c
light-liouse : provided., the United States make and file in tlie office of '-"' '■
tlie secretary of the commonwealth a suitable plan of said land within
one year from the purchase of the same :
Such tract of land as the United States shall ])urcliase in Cohasset i858,42.
for a light-keeper's house, warehouse, and whart^ for the convenience of
Minot's Ledge Light :
A tract of land, not exceeding three acres, for a light-house and isss, 53.
keeper's house on Point of Rocks at the entrance of Westport harbor :
A lot of land in Boston with the buildings thereon, known as the isss, 157.
"Masonic Temple," with land adjacent thereto not exceeding twentj--
five thousand feet, for a court-house.
Sect. 4. Persons employed under an act of the congi-ess of the Officers of
United St:Ues passed the tenth day of February in the year eighteen may cn'tcr'ifpon
hundred and seven, and the sup]ilement thereto, may enter upon lands '"nrts, &c.
within this state for any purpose which may be necessary to efleet the u. s. statute's,
objects of said act, and mav erect works, stations, buildings, or append- JlJ'i'i'?;
ages, requisite tor that purpose, doing no unnecessary injury. 1832, 191, § 2.
46
THE LEGISLATURE.
[Chap. 2.
County com-
missiouors to
assess damag'es
ou pi'titiou of
cither party.
1845, 102, §§ 3, 3.
Commissionera
to flic report,
&c.
Appeal.
Trial.
1845, 192, § 4.
1855, 449.
1859, 191).
Tender, and
costs after re-
fusal.
1845, 192, §5.
Coats, how
taxed.
1845, 192, § 6.
Penalty for in-
juring Bi<:^nals,
Ac.
1843, 192, § 7.
1852, 312.
Sect. 5. If the parties intercsteil cannot agree upon the amount to
be paid for dam.ages caused tliereliy, either of them maj' petition the
cominissioners having jurisdiction in the county in which the hind lies,
wlio shall a]ipoiiit a time for a hearing as soon as may be and order at
least fourteen days' notice to all persons interested, and, with or without
a view of the jiremises as they may determine, hear the parties and
assess the dam.ages.
Sect. 6. The commissioners shall file in the office of the clerk of the
courts, or, in the county of Suftblk, in the office of the clerk of the
sui^erior court for civil business, a report of their doing.s, which shall
be conclusive unless one of the parties within thirty days after the tenn
of the superior court held next after the tiling of the report files a peti-
tion for trial ; in which case, after notice to the o]i)iosite party, a trial
shall be had iu said court in the manner in which other civil cases are
tried.
Sect. 7. The person so entering upon land may tender to the party
injured amends therefor, and if the damages finally assessed do not
e.Yceed the amount tendered, the person entering shall recover costs;
otherwise the ])revailing ]>arty shall recover costs.
Sect. 8. Costs shall be taxed and allowed as if the proceedings
were an api)eal from the decision of the commissioners, in the same
manner as they are taxed on appeals from judgments of justices of the
peace.
Sect. 9. Whoever wilfully injures, defaces, or removes, any signal,
monument, building, or appendage thereto, erected, used, or constructed,
under said acts of congress, shall forfeit the sum of fifty dollars for
each offence ; and shall be liable for damages sustained by the United
States, to be recovered in an action of tort.
CHAPTER 2.
OF THE LEGISLATURE.
ORGANIZATION OF THE HOUSE OF REPRESEN-
TATIVES.
Section
1. Secretary to make and deliver to scrgeant-
at-arms lists of persons returned.
2. Who are to be admitted to take seats as
members.
3. When, and by whom, house to be called to
order ; and wlio shall preside.
4. Persons having' certificates, &c., but not on
list to present credentials to presiding offi-
cer.
5- Clerk to act until successor is chosen.
6. Clerk may appoint a deputy and assist-
ant. ^
7. Oath of clerk, deputy and assistant.
APPLICATIONS TO THE LEGISLATURE.
8. Notice on petitions affecting individuals or
private corporations, how given.
9. on petitions alTecting cities and towns.
10. in case of persons applying for act of
incorporation, &c.
11. to specify amount of capital stock ap-
plied for.
12. Proof of publication of notices, how made.
c03ipensati0n of members and officers.
Section
13- Compensation of senators and representa-
tives, when and how paid.
14. S3 a day to be deducted from the pay of
members absent without excuse.
15. Compensation of president and speaker,
U>. Books, Ac, not to be ordered for members
at the charge of the commonwealth.
17. Salaries of clerks.
18. of chaplains and preacher of election ser-
mon.
19. Compensation of door-keepers, messengers,
and pages, when and how paid.
5IISCELLANE0US PROVISIONS.
20. Members of committees may administer
oaths.
21. Journals ofthe two houses to be in the cus-
tody of the clerks.
22. Secretary to cause bills and resolves to be
emrrossed on parchment: acts and resolves
to be bound, Ac.
23. Slembcrs of legislature not eligible to cer-
tain offices.
24. General court to suspend business on cer-
tain days.
Chap. 2.] the legislature. 47
OEGANTZATIOX OF THE HOUSE OF EKPnESEXTATIVES.
Section 1. The secretary of the eommonwealtli shall receive and secretary to
examine the certificates of the election of representatives to the general CT^ttfseigeMn-
court returned into his office, and shall make a list of tlie persons therein ugf™/'°frsors
named. On the Tuesday next preceding the first Wednesday of January re'turneJ!'^'^^'""
annually he shall deliver to the sergeant-at-arnis a list of the persons then g^'c^fg^^l %''!'
returned, and upon receiving any further certiticates before the house
is called to order he shall hnmediately make and deliver to the sergeant-
at-arins a like list. He shall also transmit the certificates, with a list of
all persons returned, to the house of representatives as soon as the mem-
Ijers are called to order.
Sect. 2. The persons whose names are borne on the lists delivered who may take
to the sergeant-at-arms, shall be admitted by him to take seats as mem- seats a" mem-
bers in the representatives' chamber on said first Wednesday of Janu- i»*, hs, § 5.
'■ ,v 1 See Ch. S, § 1','.
ary, or at any tmie afterwards.
Sect. 3. On the first Wednesday of January in each year, between wiien, and by
the hours of ten in the forenoon and twelve at noon, the jiersons so S'cMi'el'u'o'or"
returned and admitted as members into the representatives' chamber der; audwiio
shall be called to order by the eldest senior member present ; and such jt^H, h3,^§ r^'
member shall be the presiding officer of the house until a speaker is '''?'^' <-'•'• <>• § ''■'■
chosen, or the house otherwise direct.
Sect. 4. Any person having a certificate or other documentary evi- persons imvin!,'
denee of his election as a re]jresentative, wliose name is not on said list, bu't'ilot'Im'il^i''
may after the house is called to order present the same to the presiding to present
officer or sjieaker, if one is chosen, who sliall communicate the same to presiding^ofli"-
the house for their order thereon ; but sucli ] lerson shall not take a seat J*^
as a member until permitted so to do by the house. Seecu. s, § \v.
Sect. 5. The clerk of the house for any year, shall act as clerk of Clerk to aet tia-
the next succeeding house until a clerk thereof is chosen and sworn.- cho1"'ii"'*"'^'^
Sect. 6. The clerk or actingr clerk may in writing api)oint a deputy is+i, 143, §9.
,. ,, ^ , . r • 1 I * *• •> Clerk mav ap-
lor tlu-ee days only, in case 01 sickness, or necessary detention, or 01 p„int a deputy
leave of absence from the house. He may also appoint an assistant, if j;^''j|3'*'5"'JJ,'
necessary, subject to the approval of the house.
Sect. 7. The clerk, deputy-clerk, and assistant, shall take the oath Oath of eierk,
of office prescribed by the constitution. Const, ch. 1;.
Art. l".
1S«, 143, § 11.
APPLICATIONS TO THE LEGISLATUKE.
Sect. 8. Whoever intends to present to the general court a petition Notice on peti-
affi.*cting the rights and interests of individuals or private corporations, iidividu^fSr
shall give notice thereof by publishins a coiiy of the petition four weeks private corpo-
successively in some newspaper published in the counties wiiere such given. '
individuals reside or in which such corporations are established; the last is*". 261, § 1.
of said publications to be at least fourteen days before such session of
the general court. Such newspaper shall be design;ited b)' the jietition-
ers and approved by the secretary of the commonwealth.
Sect. 9. Whoever intends to present a petition aftecting the rights on petitions
of a city or town, shall cause a copy to be served upon the city or town "nfuon-ns!''^'
by a person not a party to or interested in said petition, and shall give is5;,2«i,§2.
notice thereof in the manner provided in the jireceding section, the ser-
vice of the copy to be at least fourteen days Ix^fore the Tuesil:iy next
after the first Monday in the month of November preceding the session
at which the petition is to be presented.
Sect. 10. Persons intending to apply for an act of incorporation and ineaseofper-
corporations intending to apply for an alteration or extension of their fwac't'of in°or
charter, shall give notice of such intended application by an advertise- poration,&c.
ment, at least four weeks immediately prececiing the session at which " ''~ '
the application is to be made, in some newspaper piinted in the county
48 THE LEGISLATURE. [ChAP. 2.
where such corporations are, or are intended to be, establislied ; such
newspaper shall lie designated and approved as provided in section eight.
to specify a- Sect. 11. The notice of an application for an act of incor]ioration
tai" stock .11?" s\m\\ specify the amount of capital stock required ; and if tlie notice is
i)ii.!d lor for an alteration or extension of any charter already granted, it shall
1S37, 201, § 4. spe(^^igeally state the same.
Proof of pubU- Sect. Ti. Proof of the jjublication and service of the notice required
tices.how'made. "1 t'le preceding sections may be made by the affidavit of the ]irinter or
issr, 261, §5. publisher of the newspaper in which such publication is made and of
the ])erson making such service respectively ; which affidavits and the
petitions to which they relate shall be presented to the general court
within the first ten days of the session.
COMPENSATION OF SIEMBEES AND OFFICERS.
Compensation Sect. 13. Each member of the senate and house of re]3resentatives
represeot" ''°'* shall receivG three hundred dollars for the regular annual session for
lives. which he is elected, and one dollar for every five miles travel once in
paW.™ ^ each session from his place of abode to the place of the sitting of the
1858, 2, §1. general court, to be paid as follows: on the iirst day of the session, he
shall receive his mileage, on the first day of each month thereafter he
shall receive two dollars a day until the sum of three hundred dollars
shall have been paid him, and on the last day of the session he shall
receive tlie balance due him.
$3 a day to be Sect. 14. The treasurer Or other officer charged with tlie pajment
thepay^oi'mum- of the members shall deduct from the compensation of each member
bers absent ^ three dollars for each day that he has been absent, unless his absence
1838,2, §2. ' shall have been excused by the house of which he is a member; and the
respective clerks of the senate and house upon the written statement of
members shall certify to the treasurer or such other officer the number
of days of each member's attendance, which statements shall be pre-
served in the office of the treasurer.
Compensation Sect. 15. The president of the senate and speaker of the house shall
of president and receive double the compensation provided for senators and representa-
speaker. .,.-,., ^ ^ '
IS58, 2, §3. tives, to be paid m the same manner.
Books, &c., not Sect. 16. No periodicals, publications, or books, other than those
to^be ordered, pointed for the use of the legislature, shall be ordered for members at
1858, 2, §4. the charge of the commonwealth.
Salaries of Sect. 17. The clerks of the senate and house shall each receive an
f^2, § 5. animal salary of two thousand dollars, to be ]iaid quarterly, in full for
all the duties required of and performed by said clerks and their assist-
ants, including the preparation of an index and duplicate cojiy of the
journals.
of cimpiiiins Sect. 18. The chaplains of the senate and house shall eacli receive
de^t^orseT °^ ^^ annual salary of two hundred dollars, to be paid in monthly pay-
mon. ments on the first day of each month during the session, at the rate of
iSsoives'issa, two dollars a daj-, and any remaining balance on the last day of the
'■>■ session. The preacher of the election sennon shall receive one hundred
dollars.
Compensation Sect. 19. Eacli door-kecjier and messenger of the senate and house
ers''messcn'^' '^l'''!' receive the' sum of three hundred dollars, and each jiage of the
ger's, and pages, senate and house the sum of two hundred dollars, in full for all services
hoTv'pai'<i°^ required of them at the regular annual session of the legislature. Such
1858,2, §7. sums shall be paid monthly, at the rate of two dollars a day for each
door-keejier or messenger and one dollar and fifty cents a day for each
page until s.-iid sums of three hundred dollars and two hundred dollars,
have been ]iaid ; and on the last day of the session he shall receive the
balance due him.
Chap. 3.]
THE STATUTES.
49
MISCELLANEOUS PROVISIONS.
Sect. 20. Senators and representatives acting as members of a com-
mittee of the legislature may administer oatEs to persons examined
before the committee.
Sect. '21. The journals, files, papers, and documents, appertaining to
the senate and house of representatives ami their ])roceedings, shall be
in the custody of their respective clerks ; and copies certified by them
shall be evidence in like manner as the originals.
Sect. 22. All bills and resolves passed to be engrossed shall, imder
the direction of the secretary of the coninionwealth, be fairly engrossed
on parchment in a plain and legible hand-writing without interUneation,
and with a margin of not less than one and a half inches w'ide on each
side ; each sheet on which bills are engrossed to be twenty-two inches
long and sixteen inches w'ide ; and each sheet on w'hich resolves are
engrossed to be sixteen inches long and eleven inches wide. After
every session of the general court the secretary shall cause the acts and
resolves of the session to be neatly and strongly bound, in separate
volumes of convenient size, lettered on th« back, with a designation of
the contents and legislative year.
Sect. 23. No senator or representative shall, during the term for
which he is elected, be eligible to any office under the authority of this
commonwealth, created during such term, except an office to be filled
by vote of the ]ieople.
Sect. 24. The general court shall hold no session for the transaction
of ordinary business on Thanksgiving, Fast, or Christmas days, the
twenty-second day of Felirnary, the fourth day of July, nor on the fol-
lowing da}' when either of the two days last mentioned occurs on Sun-
day, and the public offices shall be closed on said days.
Members of
committees
may adiniuister
oaths.
li. S. 2, § in.
Jouruals of tlio
twohouses tiibo
ill the cuHtoily
of tlic elerks.
ISH, 153.
Seeretary to
cauHe bi'lls ;md
resolves to bo
en^^roRsed on
parehmeiit ;
— aets ami re-
solves to be
bound. Am".
K. S. V.i, § u.
1S30, 24.
Members of
le^'islatMiv not
eliuibl.' to eer-
tiii'.i olUces.
1«7, I'.n.
G<'neral court
to suspend
business on cer-
tain days.
ItO'J, 113, § 1.
CHAPTER 3.
OF THE STATUTES.
PROXniLGATIOy OF THE LAWS.
Section
1. LawB, how promulgated.
2. how distributed.
3. Secretary to publish, apportion, and dis-
tribute, copies of the general laws and re-
Bolvos in a pnmphlet form.
4- Publiciition of laws, &c., in newspapers.
5. Acts of incorporation deemed public acts.
6. Statutes, when to take effect.
CONSTRUCTION OF- STATUTES.
7. Rules for construing statutes : —
1st, Words and phrases to be constnied
according to usage, unless techni-
cal, &c.
2d, Singular and plural number, mascu-
line gender, &c.
3d, Joint authority to be exercised by
m^oritles.
4th, " Annual meeting."
5th, " Grantor " and " grantee."
0th, *' Highway."
7th, *' Inhabitant."
8tli, " Insane person," "lunatic," and
" spendthrift."
Otii, " Issue."
lOtli, " Land," " lands," and " real estate."
11th, " Month " and " year."
12th, " Oatli " and " sworn."
i;tth, " IVrson."
14th, " Preceding " and " following."
15th, " Seal."
ir.th, " State " and " United States."
17th, " Town."
18th, " Place."
19th, " Will."
2(>th, "Written" and ," in writing."
21st, " By-law" and "ordinance."
22d. " Sworn," as agplied to public offi-
cers.
PROMTTLGATIOX OF THE LAWS.
Laws, how pro-
Sectton" 1. The secretary of the commonwealth at the close of each mwi^atefi.
session of the general court shall collate and cause to be printed in one art. u*. * '
5 7
50
THE STATUTES.
[Chap. 3.
K. p. 2, § 1.
1851, SO, §4.
Ket.o ves
1812, .'0.
1&39, S3.
Jvaws, how
diBtributed.
R. S. 2, § 2.
Secretary to
publish find dis-
tribute general
l;iws, &c.
Ueaolves of
1817, 8S.
1850, 89.
Publication of
laws, &e., in
iiowspapcrs.
jre8oIve8 of
1857, 24.
ActBofincorpo-
V itlim deemed
public iicts.
it. S. 2, § X
4 Met. 21.5.
Statutes when
to take eflect.
It. .S. 2, §§ 4, 5.
10 Mass. 2'.K).
n Gvay, fiO'i.
0 Gray, .310.
volume, in stvle and amngement ,is heretofore, all the acts and resolves
passed diiriii!;- such session, with the frovernor's addre.ss and messages,
the constitution of the commonwealth, a list of names changed and
returned during the lu-eceding yetir by the probate courts, and a list of
the officers of tlie civil goverumeut, with an index.
Sect. 2. Tlie secretary shall deposit in his office one copy of the
volumes so published ; and immediately after their publication, distribute
copies as follows :
To the clerk of the senate, for the use of the senate, twelve copies :
To the clerk of the house of representatives, for the use of the house,
twenty-four cojiies :
To the librarian of the state library, for the use of the library, five
copies :
To the following officers and persons, one copy each :
The governor; the lieutenant-governor; each mcmlier of the council,
senate, and house of re])resentatives; the attorney-general; the auditor
of accounts ; the treasurer and receiver-general; the adjutant-general;
the masters in chancery ; the judges, clerks, and registers, of the judicial
courts; the district-attorneys; the county commissioners; the sheriffs
and keepers of jails ; the registers of deeds ; the kee))ers of the houses
of correction ; the warden of the state prison ; the county treasurers ;
the several clerks of cities and towns, for the use of such places ; Harvard
University, for the law library ; Harvar<l University ; Williams Col-
lege; Amherst College; Tufts College; Historic-Genealogical Society;
trustees of the Museum of Com]iarative Zoology; the American Academy
of Arts and Sciences; the Massachusetts Historical Society; the Boston
Athenreum ; the American Anticpiarian Society, in Worcester ; the
Pilgrim Society, in Plymouth ; the Old Colony Historical Society, in
Taunton; the Law Library Societies in each county; the judges of the
supreme court of the United States ; the judge of the district court of
the LTnited States for the district of Massachusetts ; the clerk of the
courts of the United States for the district of Massachusetts :
The secretary of state of the United States, four copies :
The secretary of each state of the Union, for the use of the state,
three copies :
To the library of congress, three co]iies.
Sect. 3. The secretary sh.all immediately after the close of each
session cause to be published in a pamphlet form such number of cojiies
of the general laws and resolves as ^^•ill supply each family in the com-
monwealth with one copy, or one copy to each eight inhabitants, and
the secretary shall cause the same to be apportioned according to the
census and sent to the clerks of the several cities and towns for distri-
bution.
Sect. 4. The secretary shall publish the general laws and other
official information intended for the public in such ne\\-spaper in tlie
commonwealth as he may select, Init the annual expense thereof shal'.
not exceed three hundred dollars.
Sect. 5. All acts of incorporation shall be deemed public acts, and,
as such, may be declared on and gi\-eii in evidence.
Sect. 6. P]very statute shall take effect at the same time throughout
the state, and, if it does not expressly prescribe the time when it shall
go into o]ieration, shall take effect on the thirtieth day next after the
day on which it is ap])roved by the governor, or otherwise passed and
approved confo«mably to the provisions of the constitution.
COXSTKI CTIOX OF ST.VTUTES.
Uules for con-
rt™'°^ ^***- Sect. 7. In the construction of statutes the following rales shall be
i:^ 8. 2, § 6. observed, unless such construction would be inconsistent with the mani-
Chap. 8.] the statutes. 51
fest intent of the legislature or repugnant to the context of the same
statute, that is to say:
First. Words ami phrases shall he construeil according to the com- Words and
mon and apjiroved usage of the language ; Viut technical words and construed'ac*
phrases, and such others as may have acquired a peculiar and appro- <'""^'"!?'o
priate meaning in the law, shall be construed and understood according tcciTmcai! &c.
to such peculiar and appro]iriate meaning. I
Second. Words im})orting the singular number may extend and be Smg-ulnr and
applied to several persons or things ; words ini porting tlie plural number masciilin"<^eiji'
may include the singular, and words inijiorting the masculine gender der, &c.
may be apjilied to females.
Tlurd. Words purporting to give a joint authority to three or more ,ioint authority,
public officers or other i)ersons shall be construed as giving such authority g'^l'^^t^'^j""'*'''''
to a majority of such officers or persons. scusii. ar2.
Fourth. The words "annual meeting," when a])plied to towns, shall " .inmiai''mei't-
mean the annual meeting required by law to be held in the months of j^;",,
February, March, or April. "
Fiftii. The word "grantor" may include everj^ person from or by " Grantor " and
whom a freeholil estate or interest passes in or by any deed ; and the Rfs^wTjaa.
word "grantee" may include every person to whom such estate or
interest passes in like manner.
Sixth. The word "highway" may include county bridges ; and shall "Highway."
be equivalent to the words " county way," " county road," and " common
road."
Seventh. The word "inhabitant" may be construed to mean a resi- "inhabitant."
dent in any city or town.
Eighth. The words "insane person" and "lunatic" shall include "inf/inpper-
every idiot, non compos, lunatic, insane, and distracted person; and the ti"c""and""
word " si)endthrift " shall include everyone who is liable to be put under ''^P.™''"'/.?}-"
guardianship on account oi excessive drinking, gaming, idleness, or
debauchery.
Ninth. The word "issue," as applied to the descent of estates, shall "iseue."
include all the lawful lineal descendants of the ancestor. ^' ^' ''*' ^ '^'
Tenth. The words "land" or "lands" and the words "real estate" "f"""'.'/,
shall include lands, tenements, hereditaments, and all rights thereto and " real PBta"*."
interests therein. ". s. oo, § 3-i.
Eleventh. The word " month " shall mean a calendar month ; and " Month " and
the word "year" a calendar year, unless otherwise expressed; and the ^^^'
word "year" alone shall be equivalent to the expression "year of our
Lord."
Twelfth. The word "oath" shall include "affirmations" in cases "Oath "and
where by law an affirmation may be substituted for an oath, and in hke ""™™-
cases the word " sworn " shall include the word " affinn."
Thirteenth. The word "person" may extend and be applied to " P^Bon."
, T ,•,• 1 * SCush. 45.
bodies politic and coqiorate. 4 cush. 589.
Fourteenth. The words "preceding" and "following," when used "Preceding'
by way of reference to any section of these statutes, shall mean the '" " ~
section next preceding or next following; unless some other section is
expressly designated in such reference.
Fifteenth. When the seal of a court, public office, or corporation, is " Seal."
required by law to be affixed to any paper, the word " seal " shall include '
an impression of the official seal made upon the paper alone as well as
an impression made by means of a wafer or of wax affixed thereto.
Sixteenth. The word "state," when applied to the different parts of "State "and
the United States, shall extend to and include the district of Columbia gtatel!"
and the .several territories so called; and the words "United States"
shall be construed to include said district and teiritories.
Seventeenth. The word "town" may be construed to include cities "Town."
and districts, unless such construction would be repugnant to the pro-
vision of any statute specially relating to such cities or districts.
and " follow-
ing."
52
PUBLIC REPORTS AND DOCUMENTS.
[Chap. 4.
'• Will."
'■ Written " and
*' in wriliug."
9 I'iek. aii
" By-law " and
" ordinance."
" Sworn," as
nppliod to pub-
lic officers.
Coast., ch. 0,
art. 1.
Amend, const.
mt. 6.
Eighteenth. The word " place " may mean city and town unless some
other meaning is implied by tlie context.
Nineteenth. The term " will " shall include codicils.
Twentieth. The words " written " and " in writing," may include
jirinting, engraving, lithographing, and any other mode of representing
words and letters ; but when the written signatui'e of a person is required
by law, it, shall always be the projier hand-writing of such iierson or, in
case he is unable to write, his jiroper mark.
Twenty-first. The word " ordinance," as apjtlied to cities, is synony-
mous with the word "by-law."
Twenty-second. The word " sworn " when applied to jnililic officers
wlio are required by the constitution to take the oaths therein jire-
scribed, shall be construed as referring to those oaths; and when .•iii])lied
to other officers it shall be construed to mean sworn to tlie faithful dis-
charge of the duties of their offices, betbre a justice of the peace, unless
other provision is specially made.
CHAPTEE 4.
OF PUBLIC EEPOBTS AND DOCUMENTS.
Section
1. Annual reports of public officers, &c., when
made.
2. Certain reports to be laid before legislature
in printed form, &c.
3. Special reports.
4. Number to be printed.
6. Distribution of reports.
6. Railroad reports to be furnished members
Section
of the legislature and railroad corpora-
tions.
7. " Public series " to be furnished under cer-
tain acts, &c.
8. to be furnished to towns.
0. Penalty lor neglect under this chapter.
10. Treasurer, .auditor, «S;c., may require their
reports to be put in type.
Annual reports
of publi'- ulTi-
cers, tVe., when
made.
185-, 40, §§ 1, ■■),
4. .5, 8.
1858, 40, §§ 1, 2.
Certain reports
to be laid belbre
k-^nsbitiiri' in
printed form,
1857, 40, §§ 1,2,5.
1868, 46, §'§ 3, 8.
Special reports.
1857,40, § 11.
Section 1. The annual reports of public officers, boards, and institu-
tions, which are required by law or custom to be made to the governor
and council, the legislature, the secretary of the commonwealth, or to
the governor to be by him transmitted to the legislature, (excejit the
address of the governor, the annual reports of tlie treasurer, auditor,
attorney-general, adjutant-general, board of education, board of agricul-
ture, board of insurance commissioners, railroad corporations, the annual
statement of the ex]>enses of the offices of the secretary, treasurer,
auditor, and adjutant-general, .and the returns relating to births, mar-
riages, and deaths,) shall include the year ending on the thirtieth day
of September, and shall be sulimitted to the secretary of the common-
wealth on or before the fifteenth day of October annually ; and all com-
missions shall make reports at the same time and in the same manner.
Sect. 2. The secretary shall cause such reports and tlie rejiorts of
the auditor of accounts, the boards of education and agriculture, and
other reiiorts which the senate and house by concurrent order direct,
and the annual abstracts prejiared in the secret.ary's office, to be laid
before the legislature in a printed form on the first Wednesday of Janu-
ary annually ; but he .shall with the advice and consent of the governor
and council omit all unneeessar)' and improjjer jiortions of such rejiorts,
so as to reduce the printed report to a reasonable length and ]iroper
foiTu. Such documents shall be styled the " ])ul)Iic " series of documents,
and be numbered sep.arately from the " senate " and " liouse " series.
Sect. .3. Public officers and boards and managers of ]nil)lic institu-
tions shall in addition to their annual reports make special rejjorts when
the public interest requires.
Chap. 5.] state library and other public property. 53
Sect. 4. There shall be printed eight thousand copies of the report Namber to bc
of the board of education, ten thousand copies of the re]50rt of the I'lSs.'io', §§ i, g.
board of agriculture, and two thousand copies of each of the other docu- isos, 22.
mcnts of such public series. If the public interest requires a larger
number of any document, the secretary may by special order direct
additional copies to the number of one thousand ; and he shall include
in the annual statement of the expenses of his office a list of the docu-
ments thus ordered.
Sect. 5. Twelve hundred copies of the reports of the boards of edu- Distribution of
cation and agriculture shall be delivered to the secretarj' of the com- j||g'^' jt^j,;
monwealth, and the remainder distributed as said boards resjH'ctively "
shall direct ; and not more than three hundred copies of a ]niblic docu-
ment shall be placed by the secretary at the disposal of the officer, board,
or institution, whose report it is.
Sect. 6. The annual reports of railroad corporations shall be filed in Railroad re-
separate complete sets, and a complete set, thus filed, shall be furnished furnisi'icd^'"""
to each member of the legislature within ten days after the beginning isss, 7.
of the session ; and one copy of each of said reports shall be furnished '''*' *''' ^ *'
by the secretary of the commonwealth to every railroad corporation
established in this state.
Sect. 7. Documents to be furnished to any person, library, associa- " Public series"
tion, or corporation, under any act or resolve passed previous to tlie ^deVwrtaia^
second day of May one thousand eight hundred and fifty-seven, shall acts, &c.
include only the " public series." All other documents printed by order '
of either or both branches of the legislature shall be distributed as pre-
scribed by their rules and orders.
Sect. 8. The secretary shall furnish annually a complete set of the to be fur-
public series in a bound volume to each city and town in the common- towns,
wealth, to be preserved in some public ]ilace therein, which volume shall j*^' ^'?' | ^•
have a title page bearing the date of the year, and a brief index to the
titles of the several documents.
Sect. 9. Whoever wilfully neglects any duty required by this chap- penaityforneg
ter shall forfeit ten dollars for each day such neglect continues. j^J: ^|. ^^
Sect. 10. The treasurer, auditor, attorney-general, adjutant-general, Tnasuror, au-
board of education, and board of agriculture, may require any jiortion reli^iVrftiVdrre
of their reports to be put in type previous to the first Wednesday in Jan- P<""ts to be put
uary annually, when the same can be done consistently with the pubhc issr^M',}!.
advantage. The governor may also require his annual address so to be
put in type.
CHAPTER 5.
OF THE STATE LIBRARY AND OTHER PUBLIC PROPERTY.
OTHER PUBLIC PROPERTY.
state library.
Section
1. State library to be in the state house —
when to be open.
2. Three trustees to be appointed by governor
and council.
3. Duties of trustees.
4. Librarian and assistAnt.
5. Trustees and librarian may employ assist-
ance.
6. Books, (tc, belonging- to state to be placed
in library.
7. Annual appropriation for the library.
s. Lilirarian to make report to legislature, an-
nually.
9. Committee to report necessary repairs, &c.,
upon state house.
5*
Section
10. Charge of certain property of the common-
wealth.
11. Trustees, <tc., of certain Institutions to
make inventories of stock, &c., annually.
12. Custody of magazines, &c. Entrencliing
tools, Arc, to be marked.
13. Penalty for purchasing, &c., tools, Ac,
branded.
14. for defacing, &c., buildings, &c., belong-
ing to state.
'conveyances of public lands.
15. Conveyances to be approved by governor
and council.
54
STATE LIBRARY AND OTHER PUBLIC PROPERTY. [ChAP. 5.
State library to
be in state
house — when
open.
K. S. 11, § 9.
1819, 155, § 2.
Tiin-o trustees
apiH'iiiti-'l liy
^^uviTimr, itc.
1850, ISli, § 1.
Duties of trus-
tees.
K. S. 11, 5 11.
1S50, 1>;2,§§ 1,2.
1850, 315.
Librarian and
assistant.
ItHS), 13.5, § 1.
185U, W.
Trustees and
librarian may
employ assist-
ance.
Resolves,
1857, 49, § 2.
Books, &(!., be-
longino; to st;ite
to be placed in
library.
K. S. 11, § 10.
1849, 155, § 2.
Annual appro-
priation for li-
brary.
E. S. 11, § 12.
1850, 182, § 1.
Resolves
1857, 49, § 1.
1858, 2.
Librarian to re-
port to legisla-
ture.
1819, 155, § 3.
See Ch. 4.
STATE LIBRARY.
Section 1. There shall be in the state house a state library for the
use of the governor, lieutenant-governor, council, senate, house of rep-
resentatives, and such officers of the government, and other persons,- as
may be jjermitted to use the same, to be kept open every day except
Sundays and public holidays.
Sect. 2. The library shall be under the management and control of
three trustees appointed by the governor by and with the advice and con-
sent of the councU, who shall hold their offices for three years unless
sooner removed. The trustees now in office shall hold their offices
according to the tenor of their commissions unless sooner removed.
Sect. 3. The trustees shall sujierintend the library, sell or otherwise
dispose of such books belonging thereto as they deem unsuitable for its
purposes, see that its apartments are proj)erly prepared for the accom-
modation of persons permitted to use the same ; and make and enforce
such rules for its regulation as they think proper.
Sect. 4. The secretary of tlie board of education shall be lilirarian.
He may appoint an assistant, who as assistant hbrarian and clerk of the
board of education shall receive an annual salary of fifteen hundred
dollars payable quarterly out of the treasury of the commonwealth.
Sect. 5. The trustees and librarian, at an expense not exceeding five
hundred dollars, may employ such assistance as is necessary tor the
accommodation of visitors, for the protection and care of the library,
and for the performance of any labor the librarian may require.
Sect. 6. All books, laws, maps, documents, and other publications
belonging to the state and for public use, except such as b)- order of the
respective departments of the government are now i-etained in the sen-
ate chamber, in the hall of tlie house of representati\es, and in the
department of the secretary of the commonwealth, shall be deposited
and suitably arranged in the library, and shall be under the care of the
librarian.
Sect. 7. Twenty-three hundred dollars shall be annually appropri-
ated for the library, and expended under the direction of the trustees
and librarian in purchasing or otherwise procuring such books, maps,
charts, and works, as they deem most useful, in binding and keejjing in
good condition the works therein, and in pm-chasing furniture and other
necessary conveniences therefor.
Sect. 8. The librarian shall annually report to the legislature the
receipts and expenditures on account of the library, with a list of books,
maps, and charts, lost, missing, or acquired, since the last report, speci-
fying those obtained by exchange, donation, or purchase ; and shall in
his report make suggestions tor the improvement of the library.
Committee on
state house, &c.
1857, 65, § 1.
Charge of state
property.
R. S. 11, §§1-3.
18.-S9, 72.
1852, 275.
185:!, 318.
183.), 442.
183'i, 247.
Resolves
1838, 70.
OTHER PUBLIC PROPERTY.
Sect. 9. There shall be annually appointed by the senate and house
of representatives, a joint standing committee on the state house, con-
sisting of two members of the senate and five of the house, wlio shall
report to the legislature what repairs and im]irovements are necessary
to be made in and upon the state house and the grounds connected
therewith, together with an estimate of the expenses.
Sect. 10. The state house and lands appurtenant in Boston, the
state arsenal at Cambridge, the state prison at CharlestoT\ni, the state
lunatic liosjiitals at Worcester, Taunton, and Northain])ton, the hospital
at Rainsford Island, the state refomi school at Westliorough, the indus-
trial school for girls at Lanciister, the state almsliouses at JNIoiison,
Tewksbury, mid Bridgewater, tlie state normal schools at Framingham,
Westfield, Bridgewater, and Salem, and other property of the conuuon-
Chap. 5.]
ELECTIONS.
55
wealth, shall continue in charge of the persons designated by the several
laws in relation thereto.
Sect. 11. The trustees or inspectors of each state lunatic hospital,
state almshouse, the hospital at Kaiusfonl Islanil, reform school for boys,
and industrial school for girls, shall annually on tlie thirtieth day of Sep-
tember, cause to be made an accurate in\entory of the stock and su]i]ilics
on hinid, and the value and amount thereof; at such institution, under
the following heads :
Live stock on the farm ; produce of the farm on hand; carriages and agricidtural
implements ; machinery and mechanical fixtures ; beds and bedding ijj the inmates'
department ; other furniture in the inmates' department ; personal property of the state
in the superintendent's department ; ready-made clothing ; dry goods; provisions and
groceries ; drugs and medicines ; fuel ; library.
Sect. 12. Public magazines, munitions of war, entrenching tools,
and all other implements of war belonging to the commonwealth, shall,
when not in actual use, be in the custody of the adjutant-general ; he
shall at the jniblic expense also provide suitable phices for their safe
keeping, and shall have the care and management of all lands Iield by
the commonwealth for military usas. Such tools and implements shall
be designated as the property of the commonwealth by suitable jiernia-
nent brands or marks on each of them.
Sect. 13. Whoever purchases, retains, or has in his possession, any
tool or implement so marked or branded, and not delivere<l to him by a
person thereto authorized, shall be ])unished by fine not exceeding ten
times the value of such tool or implement.
Sect. 14. Whoever wilfully defaces, mars, or injures, the walls,
wainscoting, or any other part, of tlie state house, or other building, or
the appurtenances thereof, belonging to the commonwealtli, by cuttinu,
writing, or in any other manner, shall for each oifence forfeit a sum not
less than live dollars.
1853, 49.
1S54, 52.
Trustees, &c.,
of certain insti-
tutions to make
iuvcutories &c.
n-ra, i;r, § 2.
See Ch. 71,
S« 2«, 54.
Ch. 73, § 0.
Ch. 75, § 25.
Ch. 70, § 7.
Custody of
maj^aziues, &c.
Tools, &c., to bo
marked.
K. S. 11, §§ 0, r.
Penalty for pur-
chasiu'-", ,te.,
tools, Src,
hrandeci.
1!. S. 11,§ 7.
for defacing,
A'C, buildinj^s,
&<•., of the state.
1!. .S. 11, § S.
See Ch. H, § 53.
CONTETAlfCES OF PTTBLIC LANBS.
Sect. 15. All conveyances of land or flats of the commonwealth conveyances,
shall be subject to the approval of the govei-nor and council. S,'^^!°'""''
TITLE II
OF ELECTIONS.
Chaptkr 6. —Of the Qualifications of Electors.
Chapter 7. — Of the manner of conducting Elections and returning Votes.
Chapter 8. — Of the Election of Governor and other State Officers.
Chapter 9. — Of the Election of Representatives in Congress and Electors
of President and Vice President.
Chapter 10. — Of the Election of District and County Officers.
56
QUALIFICATIONS OF ELECTORS.
[Chap. 6.
CHAPTER 6,
OF THE QUALIFICATIONS OF ELECTORS.
Section
1. Qualifications of voters at tovra, county,
and otlier clcctious.
2. Collectors of taxes to keep a list of persons
who have paid their taxes, and upon request
to give receipts.
3. Collectors to return lists to selectmen twice
a year.
4. Penalty for neglect, and for a false return.
5. Mayor and aldermen and selectmen to make
and post up lists of voters.
C. to be in session for receiving evidence of
qualifications, and to give notice thereof.
Section
7. Sessions of mayor and aldermen and select-
men in places where voters exceed one thou-
sand.
8. Provisions as to correcting lists of voters.
9. N.tturalizatioa papers to be produced for
inspection.
10. Penalty for giving false answers.
11. Mayor and aldermen and selectmen, when
not answerable for omissions.
12. Penalty for wilful neglect by city or town
officers.
Qualifications
of voters at
town, county,
and other elec-
tions.
Amend, const,
art. :l, ao, 23.
H. S. 3, § 1.
II Pick. .5:!8.
5 Met. 1U2, 298,
591.
7 Gray, 299.
Collectors of
taxes to keep
list of persons
who h.ave p.aid
taxes, and to
give receipt.
R. S. 3, § 2.
Collectors to re-
turn lists to se-
lectmen twice a
year.
Amend, const,
art. 15.
R. S. 3, § 3.
City charters.
4 Pick. US.
7 Pick. 286.
Penalty for neg-
lect and for
false return.
E. S. 3, § 4.
Mayor and al-
dermen and se-
lectmen to
make and post
up lists of vo-
ters.
Amend, const,
art. 15.
R. S. 3, § 5.
to be in ses-
sion for receiv-
ing evidence of
qualifications,
and to give no-
tice thereof.
R. S. 3, § i;.
10 Cush. 143.
Section 1. Every male citizen of twenty-one years of age and
upwards, (except paupers, persons under guardianshiji, and persons
excluded by articles twenty r.nd twenty-three of the amendments to the
constitution,) who has resided witliin the state one year, and within the
city or town in which he claims a right to vote six months next ]neced-
ing any election of city, town, county, or state officers, or of rcjiresenta-
tives to congress, or electors of president and vice-president, and who
has paid, by himself, his parent, master, or guardian, a state or county
tax assessed upon him in tliis state within two years next jireceding
such election, and every citizen exempted from taxation but otherwise
qualified, shall have a right to vote in all such elections; and no other
person shall have sucli right to vote.
Sect. 2. The collectors of state and county taxes in each city and
town shall keep an accurate account of the names of all jiersons from
whom they receive payment of any state or county tax, and of the time
of such pajanent; and upon request shall deliver to the person Jiaying
the same a receipt sjiecifying his name and time of payment ; and such
receipt shall be admitted as presumjitive evidence thereof.
Sect. 3. Tlie collectors, whether the time for which they were
chosen has expired or not, shall twice in each year, namely, once not
more than twenty nor less than fifteen days before the annual city or
town elections, and once not more than twenty nor less than fifteen
days before the Tuesday next after the first Monday in November,
return to the mayor and aldermen and selectmen of their respective
cities and towns, an accurate list of all persons from whom they have
received pajnnent of any state or county tax subsequently to the time
appointed for making their last preceding return.
Sect. 4. Every collector neglecting to make such return shall forfeit
one hundred dollars for each neglect ; and twenty dollars for every
name in respect to which he makes a lalse return.
Sect. 5. The mayor and aldermen and selectmen of cities and towns
shall, at least ten days before the annual city and town elections and at
least ten days before the Tuesday next after the first Monday in Novem-
ber annually, make correct alphabetical lists of all the persons qualified
to vote for the several officers to be elected at those jjeriods, antl shall
at least ten days before said elections cause such lists to be posted up
in two or more jiublic places in their resjiective cities and towns.
Sect. 6. Tlie mayor and aldermen and selectmen shall be in session
at some convenient place for a reasonable time, within forty-eight hours
next preceding all meetings for the elections of the officers aforesaid,
for the pur])ose of receiving evidence of the qualifications of persons
claiming n right to vote in such elections, and of correcting the lists of
voters. Such session shall be holden for one hour at least before the
Chap. 7.] conducting elections and returning votes.
57
opening of the meeting on the day of the election, and notice of the
time and place of liolding the sessions shall be given by the mayor arid
aldermen and selectmen upon the lists posted up as aforesaid.
Sect. 7. In everj- place where tlie nundier of qualified voters exceeds
one thousand, a like session of the mayor and aldermen or selectmen
shall be holdcn on the day immediately preceding the meeting, and for
as nuich longer time previous to saiil day as they judge necessary for
the pur])ose aior(?said. When the day immediately jireceding sucli meet-
ing is Sunday, such session shall be holden on tlie Saturday preceding.
Sect. !s. The selectmen shall also enter on such lists the name of
any jierson known to them to be qualified to vote, and shall erase there-
tiom the name of any person known to them not to be qualified.
SixT. 9. The mayor and aldermen and selectmen before entering
u])on the lists the name of a naturalized citizen, shall require liim to
])roduce for their insjiection his pa])ers of naturalization and be sati.stied
that he has been legally naturalized; but they need not require the pro-
duction of such jiapers alter they have once examined and passed upon
them.
Sect. 10. Whoever gives a false name or a false answer to the
mayor and aldermen or selectmen when in session for the purposes
aforesaid, shall foi-feit the sum of thirty dollars for each oifence.
Sect. 11. The mayor and aldermen and selectmen, if they have
duly entered on said lists the names of all persons returned to them by
the eollecturs, shall not be answerable for any omissions therefrom.
Sect. 12. A city or town oflicer who wilfully neglects or refuses to
perform any duty required of him by the provisions of this chapter, shall
for each offence forfeit a sum not exceeding two hundred doUars.
CHAPTER 7.
Sessions in pla-
ces whoro vt)t-
ors exci'od oue
thousand.
K. S. 3, § 7.
rorrectiiig lists
of voters.
is;u>, 4?, ^ 4.
ls:Jii, 105, § 3.
Naturalization
papers to be
Itripduced &c.
Amend, const.,
art. Zi.
lSi>5, 410.
Penalty for giv-
ing- false an-
swers.
1{. S. 3, § 8.
Selectmen, &c.,
when not aii-
swemble.
K. S. 3, § 9.
Penalty for
neg-loct, ttc, by
tO'.vn officers.
K. S. 4, § 11.
183U, 4-J. § I).
7 Greeul. 411.
I Kast jtvj.
II Johns. IH.
I N. H. S8.
II S. &K.;i5.
11 Mass. 350.
OF THE MANNER OF CONDUCTING ELECTIONS AND RETURNING VOTES.
Section
1. Elections not to be held on days desig^iated
by law for military duty.
2. Meetings, when to be opened. Selectmen,
&c., to decide whether olficers shall be vot-
ed for on one or on separate ballots.
3. Meetings, how called, time to be kept open.
4. Secretary of commonwealth to provide en-
velopes.
5. City and town clerks to procure envelopes
from secretary.
6. Selectmen and ward officers to pro\ide en-
velopes at polls on the day of election.
7. Persons fraudulently obtaining envelopes
liable to a fine.
8. Selectmen to preside at elections.
9. Presiding officers at elections to have a list
of voters and check names.
10. Selectmen wlien not answerable for refus-
ing to receive votes.
11. Moderator shall receive votes of all persons
on lists, and may refuse all others.
12. Manner of depositing votes, &c.
13. Votes when to be rejected, &c.
14. Results of elections, how determined. No
choice in certain cases.
15. Selectmen and ward officers to count votes.
16. Mayor and aldermen and clerk to examine
returns, and if faulty require new returns.
Otiier regulations.
17. City and town clerks to make returns of
votes to secretary, &c.
Sectiox
18. Uetums by mail.
19. When return is unsealed, secretary to give
notice to returning officers, who shall tranB-
mit a sealed copy.
20. Secretary to furnish blanks, &c., to cities
and towns.
21. to record date of receiving returns, &c.
22. Votes for governor, &c., by whom exam-
ined.
23. Governor to certify examination of returns
for governor, &c.
24. Envelopes and returns to be preserved, and
with certificate, &c., laid before legislature.
25. Votes for county commissioners, by whom
examined. Penalty for neglect.
26. Board to file copies in clerk's office. Pen-
alty for neglect.
27. Votes for county treasurer and register of
deeds, by whom examined.
28. Penalty for voting if not qualified.
29. for giving more than one ballot.
30. for giving false answers.
31. for attempting to iuflucnce voters by
bribery or threats.
32. for aiding unqualified persons to vote.
33. for disorderly conduct at elections.
34. on town or city officers for neglect of
duty.
35. on clerks neglecting to return votes.
36. Elections in cities.
58
CONDUCTING ELECTIONS AND BETURNIXG VOTES. [ChAP. 7.
Elections not to
be liohl on days
(lesigniitod Ihr
military duty.
1!. S. -i, §1.
Sleetiugs, when
to be opened.
< JfRcers to be
voted for on
one or on sepa-
rate ballots,
l.'yll, 70.
Moctin^fs, how
called, time to
be kept open.
K. S. 15, § I'J.
C-ity charters.
1831), 4:;, § ■-'.
ls;j',J, ICS, § a.
issr,.^.
See Ch. y, § 10.
Secret.ary of
commonwealth
to provide enve-
lopes,
lISol, a2(i, § 2.
lSo:j, M, § 2.
Clerks to pro-
cure enveloi)es
from secretary.
l»ol,22ii, § :j.
1S53, 30, § 2.
Selectmen &c.
to provide enve-
lopes at polls.
1S51, 220, §3.
lta:i, 30, § 2.
It^li, ir3, § 10.
Fraudulently
obtaining' envo-
lO)). 8.
ISO 1,220, §7.
Selectmen to
preside.
Const., l,§2,art.
2: 2, § l,art. 3;
2, § 2, art. 1.
Amend, const.
art. 10, 17. H. S.
5, §« — 0, SIO.
— 15, §20.
lS.i7, 171,211.
Presiding; offi-
cers to have list
&c.
R. S. 4, § .■?.
lS.3n, 42, § .5.
12 Pick. 4.1.5.
Selectmen when
not answerable
for relusing
votes.
R. .S. .3, § fl.
6 Met. 2ns.
Votes, what
shall be/e-
ceived.
R. .S. 3, § 10.
bow deposit-
ed.
Section 1. No meeting for the election of national, state, district,
county, city, or town officers shall be held on a day upon which the
militia of the commonwealth are by law required to do militar}- duty.
Sect. 2. Meetings for the election of national, .state, district, and
county officers may be opened as early as nine o'clock in the forenoon,
and shall be opened as early as two o'clock in the afternoon of the elec-
tion <lay ; and the mayor and aldermen and selectmen shall decide
whether such officers shall be voted for on one ballot of at the .same time
on separate ballots, and shall give notice thereof in the warrant calling
the meeting.
Sect. 3. Such meetings in towns shall be called by the selectmen in
the manner ordered by the towns, and in cities according to tlie jirovis-
ions of the acts establishing them and the acts in addition thereto ;
and the warrant for notifying sncli meetings .shall s]iecify the time when
the ]K)lls for the choice of the several officers shall be ojiened, and the
same shall be kept open at least two hours, and in towns for such longer
time as a majority of the voters present shall by vote direct ; but in no
case shall the polls be ke))t o]3en after the hour of sunset.
Sect. 4. The secretary of the commonwealth shall jirovide and keep
constantly in his office a sufficient number of .self-sealing envelopes to
supply all the voters in the commonwealth, and shall furnish the same
to the clerks of tlie several cities and towns when ap]ilied lor. Such
envelopes shall be of uniform size and color and bear the arms of the
commonwealth, and no other envelopes .shall be used at the jiolls.
Sect. 5. The city and town clerks shall obtain from the secretary
such number of envelopes as may be sufficient to meet the wants of the
voters of their respective cities and towns, and keep the same subject
to the order of the selectmen of towns, or the wardens and inspectors
of cities.
Sect. 6. The ward offi'cers in each city and the selectmen of each
town shall obtain from the city or town clerks and provi<le at the jiolls
on the day of election a sufficient number of such envelopes, and supply
each person claiming to be a voter in said city or town, on his personal
a]))5lication, with such number as the pending election may require, and
return to the clerk all envelopes not used.
Sect. 7. Whoever wilfully claims to be a voter, knowing that he is
not a voter where the claim is made, and by reason thereof fraudulently
obtains an envelope from the ]iersons having the custody of the same on
the day of the election, shall be liable to a fine of not less thaii ten nor
more than fifty dollars.
Sect. 8. At town meetings for the election of national, .state, dis-
trict, and county officers, the selectmen shall preside ; and shall have all
the powers which are vested in moderators.
Sect. 9. The presiding officers at meetings held for the election of
town or other officers, shall be ])rovided with a comjilete list of the per-
sons (jualified to vote at such election ; and no person shall vote at an
election whose name has not been jireviously placed on such list, nor
until the ]iresiding officers find and check his name thereon.
Sect. 10. The selectmen .shall not be answerable for refusing the
vote of any person whose name is not on the list of voters, unless such
person before offering his vote furnishes them Avith sufficient evidence
of his having the legal qualifications of a voter at such meeting, and
requests them to insert his name on said list.
Sect. 11. The moderator of a town meeting shall receive the votes
of all persons whose names are borne on the list of voters :is certified
by the selectmen ; and shall not be answerable for refusing the vote of
a jjerson whose name is not on said list.
Sect. 12. No vote shall be received by the presiding officers at any
election provided for in this chapter, unless presented for deposit in the
Chap. 7.] conducting elections and returning votes. 59
ballot box by tlie voter in person in a sealed envelope, or open and K.s. 4, §4.
untblded, and" so that such officers can know Imt one ballot is jiresented. Iss'i'liliif §%.
Sect. 13. Votes for ditterent persons tor the same office found in one n^'^sii, h.
envelope shall not be counted, and it more than one vote tor the same vdich wium to
person tor the same office is found in one enve!o]ie, but one such vote j^^^-'Jf "',' *"■
shall be counted, and no vote shall be counted which does not clearly i»54^5'j^§ 1.
indicate in writing the office for which the person voted for is designed,
except when but one officer is voted for.
Sect. 14. In all elections of civil officers by the people, the person Results of eioc-
or persons having the highest number of votes shall be deemed and ff.'™j'„'^.°il'' ''*''
declared to be elected; but no persons receiving the same number of Amend. const.
votes shall be deemed to be elected, if thereby a greater number would issn, \h, §§ 1,3.
be elected than required by law. ^^^' ^^•
Sect. 15. The votes in elections for national, state, county, and dis- .soipotmon and
trict officers, shall be received, sorted, and counted, by the selectmen, (.olli^t"™,!,'.!'* '"
and by the ward officers, and public declaration made thereof in o]ien i^ar, i7i, §5 1,2.
town and ward meetings. The names of persons voted for, the number see'ch-9>§§ ••;
of votes received for each person, and the title of the office for which he i~-
is ]iro]iosed, shall be entered in wonls at length by the town and ward
clerks in their records. The ward clerks shall forthwith deliver to the
city clerks certified copies of such records, who shall forthwith enter
the same in the city records.
Sect. 16. The mayor and aldermen and the clerk of each city shall Jinyor and ai-
forthwith after an election examine the returns made by the returning I'li.'.'k'toraam-
officers of each ward in such city, and if any error ajipears therein they jne roturns and,
shall forthwith notify said wartl officers thereof, who shall forthwith newrctilrns!"^
make a new and additional return, under oath, in conformity to truth, I-*'"''' ''''S"'»-
which additional i-eturn, whether made upon notice or by such officers l^o^'2oo, § 1.
without notice, shall be received by the mayor and aldermen or city ®'^" '^^' '•*' ^ '^"
clerk at any time before the expiration of the day preceding that on
which by law they are required to make their returns or.to declare the
results of the election in said city ; and all original and additional
returns so made shall be examined by the mayor and aldermen and
made part of their returns of the results of such election. In counting
the votes in an election no returns shall be rejected when the votes
given for each candidate can be ascertained.
Sect. 17. City and town clerks shall within ten days from the day City and town
of an election for governor, lieutenant-governor, councillors, senators, rot'uruiloi'voics
secretar)', treasurer and receiver-general, auditor, attorney-general, rej)- „ "i'°l4*"rf '*"■
resentatives in congress, commissioners of insolvency, .sheriffi*, registers 44', 161, io>. ''
of probate and insolvency, district-attorneys, or clerks of the courts, }J|!J' f^> 5 ^•
transmit copies of the records of the votes, attested by them, certified is-wlna, §2.
by the mayor and aldermen or selectmen, and sealed \i]\ to the secretary JJ^I-'j'^ \\]^ 5^ j 2.
of the commonwealth; they shall in like manner within ten days after "^5',' •*.''•
an election for county treasurer or register of deeds, transmit such copies See Ch.'9,§ 'laT
of the records of the votes to the county commissioners ol" their several
counties ; and within seven days after an election for county conmiis-
sioners, transmit such copies of the records of the votes to the clerks of
the courts for their several counties ; but in Suffolk the return of votes
for register of deeds shall be made to the board of aldermen of Boston,
and in Chelsea, North Chelsea, and Winthrop, the returns of votes for
county commissioners shall be made to the clerk of the coin-ts for the
county of jNIiddlesex. Or within three days after such elections, such
clerks may deliver such copies, sealed uji, to the sherifts of their sevcr.il
counties, who within seven days after receiving them shall transmit
them to the office of the secretary, and to the county commissioners,
board of aldermen, and clerks of courts, as severally above designated.
Sect. 18. Proof that a return of votes was properly directed to the Rrtnrns by-
person to whom it was required to be transmitted or delivered, and 1,-5..,' 250, §2.
60 CONDUCTING ELECTIONS AND RETURNING VOTES. [ClIAP. 7.
mailed -within forty-cirjht lionrs after closing the polls, shall be a bar to
any complaint for delincpiency.
When rchim is Sect. 19. When a return of votes from a city or town is received at
"liy to'giv^c^io- the office of the secretary of the commonwealth not sealed up as l)y law
ti«-toreturnmff required, he shall forthwith give notice thereof to the returning officers;
shall transmit a wlio upou the receipt of such notice shall make a copy of their record
?!;'-'.','^o™?''7,', of the votes at said election and transmit the same, certified bv them
i^-it aoy, § 2. -, - , , , ' .111
under oath to be coiTect, to the secretary, sealed uji as retiuire(l l)y law
in the case of original returns. If such copy is received by the secre-
tary before the day on which by law tlie returns are to be opened and
the votes counted, and if ujion o]iening said co]\y liy the governor and
council, the legislature, or any person authorized so to do, the original
return is found in substantial conformity therewith, it shall not be
rejected because of informality.
SoiTotarj-tofur- Sect. 20. The secretary shall annually furnish to the several clerks
todtie^^uui'^"'' of tlie cities and towns blank forms and envelopes for all returns <if votes
towus. required to be made to his office, with such ])riiiteil directions on the
iiesofves, 180?, envelopes as he deems necessary for the guidance and direction of such
1- officers in making the returns according to law.
to record date Sect. 21. A memorandum of the date of the reception of all returns
of receiving re- of votcs at the Secretary's office shall be made at said office on the
turns, &c. , . . , -^ -, . ,, • T 1 , , .
issr, 295, §2. envelopes contaunng them; and it a return required to be sealed up is
received unsealed, the secretary shall make a memorandum of such fact
upon said return.
Votes for gov- Sect. 22. The secretary upon receiving such returned cojiies shall
whom exiuu-^ transmit them as received with their seals unbroken to the governor and
iiied. council ; and the governor with live at least of the council shall as soon
liTi^art.'s"' 3S may be, examine them ; and he shall issue his summoi*s to such per-
Amend. const, gons as appear to be chosen to the offices of governor, lientenant-gov-
art. Iti 17 ly . ^ . V
K. s. 5', §1. ernor, councillors, secretary, treasurer and receiver-general, auditor,
\i'rf'^.^Jt,,r. attornev-seneral, and senators; and to such persons as appear to be
IbSO, 17j, §§4,10. •' '^ ^ r' ■ ■ i- • 1 1 -ii-
cliosen members 01 congress, commissioners ot insolvency, shentis, regis-
ters of probate and insolvency, district-attorneys, and clerks of the
courts, he shall forthwith transmit a certificate of such choice signed by
the governor and countersigned by the secretary,
how ccrtiiied. Sect. 23. The governor shall in the presence of at least five council-
m"™?' '^""***' ^ors make and subscribe a certificate of the examination of the ret^ns
1857, 295, §3. of votes for governor, lieutenant-governor, and councillors, required by
article sixteen of the amendments of the constitution, and of the result
of said examination.
Envelopes, &c., Sect. 24. After such examination, the returns shall be rejilaced in
!in('i"i!mi'"bciSre' their respective envelopes, which with the returns and such certificate
legislature, &c. the govemor shall deliver to the secretary, and the secretary on the first
.irt.'Yr.. ■'•"''■ ■Wednesday of January shall lay the same, together with schedules
is:j7, ^95, §4. showing the number of ballots which apvtear to have been cast for each
person voted for, before the senate and house of re]iresentati\'es.
Votes for coun- Sect. 25. On the first Wednesday of the month succeeding an elec-
ers^'y'whom' t'o" ^or countv commissioner, the board of examiners for the county for
examined. Pen- which the election was held shall meet; and the clerk of the courts shall
It's. i4,"§f ir, * present the returned copies of votes at such election; and the board
IN 28^ shall open and examine them and notify the person chosen of his elec-
1:! Gray, S3. tion. If such board or clerk wilfully neglects to perform any duty
required of them under this section, each of them so neglecting shall
forfeit a sum not exceeding two humlred dollars.
Hoard to file ^ Sec't. 26. The board shall within three days after such examination
oK.'* "penalty^ file sucli copies in the office of the clerk; and any one of them wilfully
for neglect. detaining in his custody such a co|iy three days after the time for filing
' ' it has expired shall forfeit fifty dollars and the same sum for each suc-
ceeding day of such detention ; and the clerk shall notify the attorney-
general of every neglect so to file, and every such detention.
Chap. 8.] conducting elections and returning votes.
61
Sect. 27. County commissioners shall, on the first Wednesday of voten for coun-
January after an election for county treasurer or register of deeds in *ei[^tcr"or '""*
their county, open and examine the returned copies of votes at such dowis, how cx-
election, and notify the person chosen of his election; but in Suftblk the k. s. li, §§«,
board of aldermen of Boston, within ten days after an election for regis- JJ"i, ^^„f
ter of deeds for said county, shall so open and examine the votes of Amend. § 3.
such election, and notify the person chosen. J^;^| ui, 5*4.
Sect. 28. Whoever knowing that he is not a qualified voter at an ^ pray, m.
election wilfully votes for any officers to be then chosen, shall forfeit a in't,°'*if notquai-
sum not exceeding one hundred dollars for each offence. 'j^*^^- ^ . g
Sect. 29. If a voter knowingly gives more than one ballot at one y Jii't.L'i'vs.'
time of balloting at an election, he shall forfeit a sum not exceeding one mire tiian one
hundred doUars. ballot.
Sect. 30. Whoever wilfully gives a false answer to the selectmen or for givinj,'
moderator presiding at an election, shall forfeit for each oflence a sum g'*! i|"r™""
not exceeding one hundred dollars. r ke't. 52.
Sect. 31. Whoever by bribery, or threatening to discharge from his forattempt-
emplo}Tnent, or to reduce the wages of^ or by a promise to give employ- "fprs by^Urib^s
ment or higher wages to, a person, attcmjits to influence a qualified voter or tureats.
to give or witlihold his vote in an election, shall be jjunished by fine not
exceeding three hundred dollars or by imprisonment in the county jail
or house of correction for a term not exceeding one year, or both, at the
discretion of court.
Sect. 32. Whoever wilfully aids or abets any one, not legally quali-
fied, in voting or attempting to vote at an election, shaU forfeit a sum
not exceeding fifty dollars for every such offence.
Sect. 33. Whoever is disonlerly in a meeting held for an election
mentioned in this chajster, shall forfeit a sum not exceeding twenty
dollars.
Sect. 34. If a city or town officer wilfully neglects or refuses to
perform the duties required of him respecting elections by the provisions
of this chapter, he shall for each ofience forfeit a sum not exceeding two *'=<' ^^- 6. § i^.
hundred dollars.
Sect. 35. The clerk of any city or town who fails to make return of on clerks,
the votes given therein in confi)i-mity with the provisions of law, shall i^^^o, 250, § 1.
be liable to a fine of not less than five and not more than fifty dollars.
Sect. 36. Elections in cities shall be conducted according to the Elections in
])rovisions of the acts establishing them and of the several acts in addi- e' §^4, 5 12.
tion thereto, so far as they are not inconsistent with the provisions of
this chapter
for .lidinij un-
qualified per-
sons to vote.
K. S. 4, § U.
for disorderly
conduct.
K. S. 4, § 10.
10 Mass. 3So.
on town offi-
cers for uejjlect
of duty.
CHAPTER 8,
OF THE ELECTION OF GOVERNOR AND OTHER STATE OFFICERS.
governor, &c.
Section
3. Election of governor and other state offi-
cers.
COUNCILLORS.
2. Division of commonwealth into cooucillor
districts.
3. Districts, bow constituted.
SENATORS.
4. Division of commonwealth into senatorial
districtH.
5. Districts, how constituted.
6. Apportionment of representatives.
6
representatives in the general court.
Section
7. "Warrants for mooting to state number of
representatives to be voted for.
8- In a town constituting: a district, repeated
ballotings may be had on same day.
9. Proceedings in case of failure to elect in
district contained in one tovm or city.
10. Selectmen and town clerks, &e., in com-
posite districts to prepare, &c., transcript
of record of votes.
11. Officers apportioning- representation to des-
ignate place for clerks to meet and ascer-
tain result of election.
62
COUNCILLORS AND SENATORS.
[Chap. 8.
Seotiox
12. Clerks oftowus, &c., in composite districts
to meet and ascertain result of election.
13. Clerks to return and record votes of dis-
trict.
14. Proceeding's in case of failure to elect in
composite districts.
15. Certificates of election in single districts.
16. in composite districts.
17. Form and return of certificate of election.
Section
18. Proceedings in case of vacancy.
19. Secretary to furuisli blanks.
20. Penalty on officers refusing to perform
duties.
21. on selectmen, giving false certificate.
22. on clerks for signing false certificate.
23. Compensation of city and toivn officers.
24. Appointment of clerk, pro tempore.
Klection of gov-
ernor and other
state ofiBcers.
Constitution :
I, § a, art. 1.
1, § 3, art. 1,2,3.
2, § 1, art. 2, 3.
2, § 2, art. 1.
Amend, const,
art. 15, l(i, 17,
21, 22.
Division of
commonwealth
Into councillor
districts.
Amend, const,
art. 1(1.
lS5li, 307, § I.
ISSr, 310.
liistricts, how
constituted.
1S5,-, 310.
District No. 1.
District No. 2.
District No. 3.
District No. 4.
District No. 5.
District No. 6.
District No. 7.
District No. 8.
GOVERNOR, &C.
Section 1. The governor, lieutenant-governor, councillors, secretary,
treasurer and receiver-general, auditor, attorney-general, and senators
and representatives in the general court, shall be elected annually on
the Tuesday next after the first Monday of November, as prescribed in
the constitution.
COtTNCILLORS.
Sect. 2. For the choice of councillors the commonwealth is divided
into eight districts, as provided in the following section, each of which
shall in the manner prescribed by the constitution and laws elect one
councillor.
Sect. 3. The five senatorial districts in the county of Suffolk consti-
tute District Number One.
The five senatorial districts in the county of Essex constitute District
Number Two.
The first, second, fourth, fifth, and sixth senatorial di.striets in the
county of Middlesex, constitute District Number Three.
The Franklin senatorial district, the Hampshire and Franklin district,
and the central, north-east, and north-west districts in the county of
Worcester, constitute District Number Four.
The two senatorial districts in the county of Hampden, the two sen-
atorial districts in the county of Berkshire, and the Hampshire district,
constitute District Number Five.
The north Norfolk senatorial district, the third Middlesex district,
and the east, south-east, and south-west districts in the county of
Worcester, constitute District Number Si.x.
The west and east Norfolk senatorial districts and the three senato-
rial districts in the county of Bristol, constitute District Number Seven.
The three senatorial districts in the county of Plymouth, the Cape
district, and the Island district, constitute District Number Eight.
Division of
commonwealth
into senatorial
districts.
Amend const.,
art. 22.
isar, 309, § 1.
Districts, how
constituted.
1S57, 3011, §§ 2-
i:t.
l''irst Suffolk.
.Second Sullblk.
Third Suffolk.
Fourth Suffolk.
I'ifth Suffolk.
SENATORS.
Sect. 4. For the choice of senators the commonwealth is divided
into forty districts, as provided in the folloT\-ing section, each of which
shall in the manner prescribed by the constitution and laws elect one
senator.
Sect. 5. The city of Chelsea, the towns of North Chelsea and Win-
throp, and the ward numbered two in the city of Boston, constitute the
First Sutiblk District.
The wards numbered one, three, and five, in the city of Boston, con-
stitute the Second Suffolk District.
The wards numbered four, six, and seven, in the city of Boston,
constitute the Third Suffolk District.
The wards nuiiibered eight, nine, and ten, in the city of Boston, con-
stitute the Fourth Suff()lk"District.
The wards numbered eleven and twelve in the city of Boston, consti-
tute the Fifth Suffolk District.
Chap. 8.] senators. C3
No new divisions of wanls shnll Le made in the city of Boston, pre- wards in iios-
vious to the next apportionment of senatois and rejiresentatives. 'i?ion"mtii,ic.
The city of Lynn, and the towns of Lynnfield, ^larljleliead, Xahant, i-irst Essex.
Saumis, and Swamjiscott, constitute the First Essex District.
TFie city of Salem, and the towns of Danvers, Hamilton, Middleton, Second Essex-.
South Danvers, Topstield, and Weuham, constitute the Second Essex
District.
The city of Lawrence, and the towns of Andover, Boxford, Haverhill, Third Essex.
Methuen, and Xorth Andover, constitute the Third Essex District.
The city of Newburyjsort, and the towns of Amesbury, Bradford, Fourth Essex.
Geoi'getown, Groveland, Xewbury, Salisbury, and West Newbury, con-
stitute the Fourth Essex District.
The towns of Beverly, Essex, Gloucester, Ipswich, Manchester, Rock- Fifth Essex.
port, and Rowley, constitute the Fifth Essex District.
Tlie city of Charlestown, and the towns of Somerville, Melrose, and First Middie-
Malden, constitute the First Middlesex District. """■
The city of Cambridge, and the towns of Waltham, West Cambridge, second Middle-
Watertown, Belmont, and Brighton, constitute the Second Middlesex ^^j j^^
District.
The towns of Ashland, Framingham, Holliston, Ilopkinton, Natick, Third Jiiddie-
Newton, Sherborn, Sudbury, Wayland, and Weston, constitute the ^''■'^'
Third Middlesex District.
The towns of Acton, Ashby, Boxborough, Carlisle, Chelmsford, Con- Fourth Middle
cord, Dunstable, Groton, Lincoln, Littleton, Marlborough, Pepperell, ^'•'■'''
Shirley, Stow, Townsend, Tyngsborough, and Westford, constitute the
Fourth Middlesex District.
The towns of Bedford, Billerica, Burlington, Lexington, Medford, Fifth Middle-
North Reading, Reading, South Reading, Stnneham, Wilmington, Win- ^"^^^
Chester, and Woburn, constitute the Fifth Middlesex District.
The city of Lowell, and the towns of Dracut, and Tewksbury, consti- Sixth Middie-
tute the Sixth Middlesex District. ^"'''"
The city of Worcester, and the towns of Holden, Paxton, and Rut- Central Wor-
land, constitute the Central Worcester District. ''**'^''-
The towns of Blackstone, Douglas, Mendon, Milford, Northbridge, .South-east
Sutton, and Uxbridge, constitute the South-east Worcester District. "'oreester.
The towns of Auburn, Brookfield, Charlton, Dudlev, Leicester, Oxford, south-west
Southbridge, Spencer, Sturbridge, Warren, Webster, and West Brook- ""^»'-<«""-
field, constitute the South-west Worcester District.
The towns of Athol, Barre, Dana, Hardwick, Hubbardston, New ^■orth-we8t
Braintree, North Brookfield, Oakham, Petersham, Phillii)Ston, Royal- Worcester.
Bton, Templeton, and Winchendon, constitute the North-west Worces-
ter District.
The towns of Ashburnham, Fitchburg, Gardner, Harvard, Lancaster, North-cast
Leominster, Lunenburg, Princeton, Sterling, and Westminster, consti- °"^"
tute the North-east Worcester District.
The towns of Berlin, Bolton, Boylston, Clinton, Grafton, Millbury, East Worces-
Northborough, Shrewsbury, Southborough, LTpton, Westborough, and *"•
West Boylston, constitute the East Worcester District.
The towns of Agawam, Blandford, Chester, Chicopee, Granville, Hoi- West Hamp-
yoke, Ludlow, Montgomery, Russell, Southwick, Tolland, West-Spring- ''™'
field, and Westfield, constitute the West Hampden District.
The city of Springfield, and the towns of Brimfield, Holland, Long- East Hampdea
mea<low, Monson, Palmer, Wales, and Wilbraham, constitute the East
Hamjiden District.
The towns of Chesterfield, Cummington, Easthampton, Goshen, Had- Hampshire,
ley, Hatfield, Huntington, Middlefield, Northamjiton, Plainfield, South
Hadley, Southampton, Westhamjiton, Williamsburg, and Worthingtun,
constitute the Hampshire District.
The towns of Ashfield, Bernardston, Buckland, Charlemont, Colrain, Franklin.
64
REPRESENTATIVES IN GENERAL CODUT.
[Chap. 8.
Hampshire and
Franklin.
North Berk-
eliire.
South Berli-
etiire.
Xorth Norfolk.
East Norfolk.
West Norfolk.
North Bristol.
South Bristol.
West Bristol.
North Plym-
outh.
South Plym-
outh.
1857, 202.
Middle Plym-
outh.
Cape District.
Island District.
Conway, Deerfield, Gill, Greenfield, Hawley, Heath, Leydcn, Monroe,
Northfield, Kowe, Shelbiirne, and Whately, constitute the Franklin
District.
The towns of Amherst, Belchertown, Enfield, Granby, Greenwich,
Pelham, Prescott, Ware, Erving, Leverett, Montague, New Salem,
Orange, Shutesbury, Sunderland, Warwick, and Wendell, constitute
the Hampshire and Franklin District.
The towns of Adams, Cheshire, Cl.arksliurg, Dalton, Florida, Han-
cock, Hinsdale, New Ashford, Lanesliorough, Peru, Pittsfield, Savoy,
Willi.amstown, and Windsor, constitute the North Berkshire District.
The towns of Alford, Becket, Egremont, Great Barrington, Lee, Len-
o.x, Monterey, Mount Washington, New Marlljorough, Otis, Richmond,
Sandisfield, Shettield, Stoekbri<lge, Tyringham, Washington, and West
Stockbridge, constitute the South Berkshire District.
The city of Ro.xbury, and the towns of Brookline, Dorchester, and
West Ro.vbury, constitute the North Nortblk District.
The towns of Braintree, Milton, Quincy, Randolph, Stoughton, and
Weymouth, constitute the East Norfolk District.
The towns of Bellingham, Canton, Dcdham, Dover, Foxborough,
Franklin, Meiltield, ]Medway, Needham, Sharon, Waljjole, and Wren-
tham, constitute the West Norfolk District.
The towns of Attleborough, Easton, Raynham, Mansfield, Norton, and
Taunton, constitute the North Bristol District.
The city of New Bedibrd, and the town of Dartmouth, constitute the
South Bristol District.
The towns of Berkley, Dighton, Fall River, Freetown, Pnwtucket,
Rehoboth, Seekonk, Somerset, Swanzey, and Westport, constitute the
West Bristol District.
The towns of Abington, Cohasset, Hanover, Hingham, Hull, North
Bridgewater, Scituate, and South Scituate, constitute the North Plym-
outh District.
The towns of Bridgewater, Carver, Fairliaven, Lakeville, Mattajioisett,
Marion, Middleborough, Rochester, and Wareham, constitute the South
Plymouth District.
The towns of Duxbury, East Bridgewater, Halifax, Hanson, Kings-
ton, Marshfield, Pembroke, Plymoutli, Pljnnpton, and West Bridge-
water, constitute the Middle Pl_\niiouth District.
The towns of Brewster, Chatham, Dennis, Eastham, Harwich, Orleans,
Provincetown, Truro, Wellllect, and Yarmouth, constitute the Cape
District.
The towns of Barnstable, Falmouth, and Sandwich, with the counties
of Dukes County and Nantucket, constitute the Island District.
Apportionment
of representa-
tives.
Amend, const.
art. 2f.
IBSr, 308.
Warrants for
meeting to state
number of rej)-
resentatives to
be voted for.
185?, 311, § 2.
In certain
towns repeated
REPRESENTATIVES IN THE GENERAX COURT.
Sect. 6. Tlie two hundred and forty representatives are apportioned
to the several counties, as follows : —
Barnstable^ nine ; Berkshire, eleven ; Bristol, twenty ; Dukes county,
one ; Essex, thirty-two ; Franklin, eight ; Hampden, twelve ; Hamp-
shire, eight ; Middlesex, thirty-nine ; Nantucket, two ; Norfolk, (ex-
cluding the town of Cohasset,) twenty ; Plymouth, and the town of
Cohasset, sixteen ; Suffolk, twenty-eight ; Worcester, thirty-four.
Sect. 7. Warrants for meetings for the election of re]iresentatives
shall direct that the voters in towns, cities, and wards, be notified to
bring in their votes on one ballot for the representatives to which their
several districts are entitled, and shall s]K>cify the number thereof.
And such elections shall be conducted .and the results tlicreof deter-
mined as provided in chapter seven except as hereinafter provided.
Sect. 8. When a town constituting a district fails on the first ballot
Chap. 8.] representatives in general court. 6-5
to make choice of the representatives to which it is entitled, other bal- b.-uiotings may
lotings may be had on the same day, but the polls for sucli ballotings same di?", &e.
shall not be ojicikmI after five o'clock in the afternoon. i'*w. •■**•
Sect. 9. When a town, city, or the wards of a city, constituting a I'roce'cdiuo-s'iu
representative district, at the election held on the Tuesday next after w'si? on.iuiure
,' ,. -.r T .• -vT 1 c '1 1 1 1 •■ to elect m dis-
the first Monday 01 JSJovcmber tail to elect the number oi rcpresenta- tiict contamej
tives to which such district is entitled, the proper officers of such city j'.'j^ne town or
or town shall issue their warrant for a new election in such district, to issr, 3ii, § i.
be held on the fourth Monday of said November, to fill the vacancy,
and the number to be elected shall be specified in the warrant, and
similar proceedings shall be had thereupon as in the original election of
such representatives.
Sect. 10. In towns, cities, and wards, composing a jiart of a repre- sdcef men, &c.,
sentative district, the selectmen and town clerks and ward ofticers, in luBtru'ts'to^prc-
open town and ward meetings, and the mayor and aldciincn and city \>»'y, ii"., tmn-
clerks, shall forthwith u]ton the vote for representative lieing recorded o/TOtes. '"'''"
make out under their hands and seal up and deliver to their respective i'^">:'ii. §5-
clerks a true transcript of such record.
Sect. 11. The county commissioners, mayor and aldermen, or boar<l Officers nppor
of aldermen, or such special commissioners as are authori/ed to appor- s"i'11'|JTou To'de-
tion the representation assigned to the several counties, at their meet- sit^nnte place
ing for such puqiosc, shall designate a place in each re]iresentative n"eet amr ascer-
district, not contained in or consisting of one town or city, at which the »»'» j''""'* °''
I 1 /» • . 1 1 • 1 T • * I II 11 election.
clerks oi towns, cities, and wards, composing such district, shall assemble isor, 3ii, §8.
for the purpose of ascertaining the result of elections. Due notice of
such appointment shall be given by said commissioners or mayor and
aldermen to every town, cit}', and ward, in the district. Such ]jlace of
meeting may be changed once in two years by the same authority, after
a hearing on the petition of two of such clerks.
Sect. V2. . The clerks of cities, towns, and wards, composing such clerks of towns,
districts, shall meet at noon on the day following an election for repre- *e'ii"'tri""to^
sentatives, at the place so designated, and shall examine and comj)are meet and ascer-
sucli transcripts and ascertain what persons have been elected. If any *i"ctIon"" "^
error ajipears in a transcrijjt or return, the clerks shall forthwith give i'<-')r. ;ni, §§ 3,
notice thereof to the officers required to make the return, and such issii, isi, §§1,2.
officers shall forthwith in conformity with the truth and under oath,
make a new return, which, whether made with or without such notice,
shall be received and examined by said clerks within two days after the
time a]i]iointed for the meeting ; and for that purpose the meeting may
be adjourned not exceeding two days. No return shall be rejected
when the number of votes given for each candidate can be ascertained.
Sect. 13. Such clerks shall at such meeting make out under their to return and
hands a eomijlete return of all the votes cast for representatives in the rfconi votes oi
T • 1 ' /. 11 e 1 1 • 1 tile district.
district, the names of all persons tor whom such votes were given, and is5r,;iii, §3.
the number of votes for each person, and a record of the return shall be
made in the book of records of their resjiective cities, towns, and wards,
within four days after the day of the meeting.
Sect. 14. If upon such examination and comparison of transcripts Proceedinps in
it appears to such clerks that their district has fliiled to elect the number treiect'lncom.
of representatives to which it is entitled, such fact shall be certified by poBite district,
such ward and city clerks to the mayor and aldermen of their city, and '•'^"^n. §?•
by such to\\'n clerks to the selectmen of their several towns, and such
mayor and aldermen and selectmen shall forthwith issue their warrants
for another meeting for the election of representatives, to fill such
vacancy, to be held on the fourth Monday of the same November, and
similar proceedings shall be had thereupon as at the first election.
Sect. 15. When it is ascertained who is elected representative in a Certificates of
T.., 1^ i ■.. 1^.^ election in sin-
distnct, composed of one town, or city, or one or more wards of a city, ^'le districts,
the selectmen or mayor and aldermen shall make out duplicate certili- i'- S- 5, § 8.
6* 9
(56
REPRESENTATIVES IN GENERAL COURT.
[Chap. 8.
1844, 143, §§2, 3.
185r, 311, § 1.
Soe § 19.
in composite
districts.
1857, 311, § 5.
See § I'J.
Form and re-
turn of cL'rtili-
cate of election.
1857, 311, §3.
Proceedings in
case of vacancy.
1858, 6, § 1.
Secretary to
furnisli blanks.
1,*H, H3, §§ 1, 2,
r.'.
iMr, 311, § 10.
1859, 121, § 4.
Penalty on offi-
cers relusin*,' to
perform duties.
1857,311, §9.
on selectmen
giving false cer-
tificates.
1852, 282.
on clerks for
signing false
certitieate.
1859, 121, § 3.
Compen.<iation
of city and town
officers.
1857, 311, § 5.
Appointment of
clerk pro tem-
pore.
1857, 311, § 11.
cates thereof, one of which they shall transmit to the office of the
secretary of the coimnoinvealth on or before the first Wednesday in
January followinsj', and the other by a constable or other authorized
officer to the jierson elected, within ten days after the day of election.
Sect. 16. When the clerks of cities, towns, and ward.s, composing a
district, at their ineetintr for the purpose, ascertain that a representative
is elected in their thstrict, they or a majority of them shall make out
duplicate certificates thereof, one of which they .shall deliver into the
office of the secretary of the commonwealth, on or before the first day
of January following, aud the other by a constable or other authorized
officer transmit to the person elected, within ten days after the day of
election.
Sect. 17. Such certificates of election shall be in substance as fol-
lows : —
Commonwealth of Massachusetts, county of Pursuant
to a law of this commonwealth, the qualified voters of Representative District Num-
ber , in their several meetings on the day of November instant,
for the choice of representatives in general court, did elect , being in-
habitants of said district, to represent them in the general court to be holden on the
first Wednesday of January next.
Dated at the day of in the year one thousand eight
hundred and
Such certificate shall h.ave a return thereon, signed by the officer
authorized to give such notice, and .stating that notice of the choice was
given to the persons therein mentioned, and that said persons were
summoned to attend the general court accordingly.
Sect. 18. When a vacancy occurs in a representative district, the
speaker of the house of representatives shall in the precejit which he
may issue by order of the house giving notice of such vacancy, appoint
a time for an election to fiU the same. Upon the reception of such
precept, the mayor and aldermen of a city and the selectmen of the
towns comprising tiie district, shall issue their warrants for an election
on the day named in the ))recept ; and similar proceedings .shall be had
in filling such vacancy as in the original election of representatives.
Sect. 19. The secretary of the commonwealth shall furnish to cities
and towns blank forms for certificates, transcript.s, and returns, required
under this chapter. Such blanks for returns shall have jirinted thereon
sections fifteen, sixteen, and nineteen, of this chapter, and the first four
sections of chapter two.
Sect. 20. City or town officers wilfully neglecting or refiising to
perform the duties required of them under this chapter, shall for each
ott'ence forfeit a sum not exceeding two hundred dollars.
Sect. 21. Selectmen giving a certificate of election to a person
voted for as representative to the general court, not in accordance with
the declaration of the vote in open town meeting at the tune of the
election, shall forfeit three hundred dollars.
Sect. 22. Clerks wilfully signing a certificate not in confonnity with
the result of an election, as ajjjiaient by the transcripts and returns,
shiiU forfeit a sum not exceeding three hundred dollars.
Sect. 23. Towns and cities may provide suitable comjiensation to
clerks and selectmen for services pertbrraed by them under the recjuire-
ments of this clia])ter.
Sect. 24. In case of a vacancy in the office of town, city, or ward
clerk, or any disability in such clerk to peiform the duties require<l by
this chapter, the selectmen, mayor and ahlermen, or board of aldermen,
or warden, may a])point a clerk pro tempore, who shall be swoni and
perform such duties.
Chap. 9.]
REPRESENTATIVES IN CONGRESS.
67
CHAPTER 9,
OF THE ELECTION OF REPRESENTATIVES IN CONGRESS AND ELECTORS
OF PRESIDENT AND VICE-PRESIDENT.
representatives is congress.
Section
1. Division of commonwealth into cong^res-
Bional districts.
2. Towns forming the several districts.
3. KcpreseutativeB in congress when to be
chosen.
4. Return of votes.
5. Proceedings in case of no choice.
6. Proceedings in case of vacancies.
7. Sherilfs to transmit precepts to selectmen.
8. Penalty for neglect of city and to\\'n officers.
ELECTORS OF PRESIDENT AND VICE-PRESI-
DENT OF THE UNITED STATES.
9. Electors of president and yice-president to
be chosen.
Section
10. Choice of electors, when to take place.
11. Names of electors to be on one ballot.
12. Return of votes.
13. Governor and council to count votes and
notily persons elected.
14. If a mjijority are not chosen, residue to be
chosen by general court.
15. Time and jjlace of meeting of electors ; va-
cancies, iiow tilled.
IG. Electors to vote, and certify and transmit
their votes to seat of government. ^
17. Compensation of electors.
18. Duties of shcrilTs and town olTicers in elec-
tion of governor, ic, lo be observed ill
election of electors. Penalties.
EEPEESENTATIVES IN CONGRESS.
Section 1. For the pui-pose of electins: ropveseiitatives in the con- Division of com-
gress of the United States, the state is divitled into eleven districts, TOugrcssiouar"
each of which shall elect one representative, being an inhabitant of the districts,
same district.
Sect. 2. The districts are as follows, to wit : —
The several towns in the counties of Barnstable, Dukes county, and Towns forming
Nantucket, with the city of New Bedford, and the towns of Dartinouth, I lu-ts'!' ""''"'''
Fairhaven, Carver, Kingston, Marion, Mattapoisett, Plymouth, Plymp- 'istrict No. i.
ton, Rochester, and Wareham, form District Number One. iwrjaoa!
The city of Fall River, and the towns of Attleborough, Berkley, Digh- DistrictNo. 2.
ton, Easton, Freetown, Mansfield, Norton, Pawtuckct', Kaynhani, Reho- ^^''^'■^■
both, Seekonk, Somerset, Swanzey, Taunton, Wcstport, Abington, Bridge-
water, Duxhury, East Bridgewater, Halifax, Hanover, Hanson, Hiiig-
ham, Hull, Lakeville, Marslifield, Middlebort)ugh, North Bridgewater,
Pembroke, Scituate, South Scituate, West Bridgewater, and Cohasset,
form District Numlier Two.
The towns of Bellingham, Braintree, Canton, Dedham, Dorchester, District No. 3.
Dover, Foxborough, Franklin, Medtield, Mcdway, Milton, Necilhaiii,
Quiney, Randolph, Sharon, Stoughton, Wal]iole, West Roxl)ury, Wey-
mouth, Wreiitham, Blackstone, Mendon, Milford, Northbridgc, U]iton,
Uxbridge, Brighton, Ilolliston, Newton, Sherboru, and Watertown, tbriu
District Number Three.
The city of Roxbury, the town of Brookline, and the wards numbered District No. 4.
seven, eight, nine, ten, eleven, and twelve, in the city of Boston, form
District Number Four.
The wards numbered one, two, three, four, five, and six, in the city of District No. 5.
Boston, the cities of Cambridge and Chelsea, and the towns of North
Chelsea and Winthrop, form District Number Five.
The cities of Lynn, Newburyport, and Salein, and the towns of District No. 6.
Amesbury, Beverly, Essex, Georgetown, Gloucester, Groveland, Hamil- j^!j' J^'^-
ton, Ipswich, Manchester, Marbleliead, Nahant, Newbury, Rockjiort,
Rowley, Salisbury, Swampscott, Wenham, and West Newbury, form
District Number Six.
The cities of Charlestown and Lawrence, and the towns of Andover, District No. 7.
Boxford, Bradford, Danvers, Haverhill, Lynntield, Methuen, ]\Iiddleton, J^ss' 150.
North Andover, Saugus, South Danvers, To])sfield, Burlington, Lexing- if^s, Sta.
ton. Maiden, Medford, Melrose, North Reading, Reading, SomerviUe,
68
REPRESENTATIVES IN CONGRESS.
[Chap. 9.
District No. 8.
District No. 9.
District No. 10.
1855, 305.
District No. 11.
ls50j :io.
Reprcsenta-
tivt'S in cou-
o;n'SS when to
be chosen.
11. S. (i, § 3.
IMO, -i-Zi.
11 Mass. 424.
Heturn of
votes.
K. S. fi, § 4.
iHsr, in, §§1,2.
1857, 205, § 1.
Pi'ocecfiings in
case of no
choice.
K. S. 0, § 6.
Proceedings in
case of vacan-
cies.
R. S. 6, § 7.
SllcrifTs to
transmit pre-
cepts to select-
men.
K. S. 0, § 8.
South Reading, Stoncham, Waltham, West Cambridge, Wilmington,
Winchester, and Wobiini, form District Number Seven.
The city of Lowell, and the towns of Acton, Ashbj', Ashland, Bed-
ford, Billerica, Boxborough, Carlisle, Chelmsford, Concord, Dracut,
Dunstable, Frainingham, Groton, Hopkinton, Lincoln, Littktim, ]\IarI-
borough, Natiek, Pep]jercll, Shirley, Stow, Sudbury, Tewkslmry, Town-
send, Tyngsborough, Wayland, Westford, Weston, Berlin, Bolton, Har-
vard, Lunenburg, Northborough, Southborough, and Westborough, form
District Number Eight.
The towns of Ashburnham, Auburn, Barre, Boylston, Brookfield,
Charlton, Clinton, Douglas, Dudley, Fitchburg, Gardner, Grailoii, liol-
den, Hubbardston, Lancaster, Leicester, Leominster, Millbury, New-
Braintree, North Brookfield, Oakham, Oxford, Paxton, Princeton, Rut-
land, Shrewsbury, Southbridge, S))encer, Sterling, Sturbridge, Sutton,
Temjileton, Webster, West Boylston, Westminster, and Winchendon,
and the city of Worcester, form District Number Nine.
The towns of Athol, Dana, Hardwick, Petersham, Phillipston, Royals-
ton, Warren, West Brookfield, Erving, Leverett, 3Ioiit.'igue, New Sa-
lem, Northfield, Orange, Shutesbury, Sunderland, Warwick, Wendell,
Whately, Amherst, Belchertown, Easthampton, Enfield, Granb)', Green-
wich, Hadley, Hatfield, Northampton, Pelham, Prescott, South Hadley,
Ware, Agawam, Brimfield, Chicopee, Holland, Holyoke, Longmeadow,
Ludlow, Monson, Palmer, Wales, West Springfield, Wilbraham, and the
city of Springfiehl, form District Number Ten.
The towns of Ashfield, Bernardston, Buckland, Charlemont, Colrain,
Conway, Deerfield, Gill, Greenfield, Hawley, Heath, Leyden, Monroe,
Rowe, "Shelburne, Chesterfield, Cunimington, Goshen, Huntington, Mid-
dlefield, Plainfield, Southampton, Westhampton, Williamsburg, Worth-
ington, Blandford, Chester, Granville, Montgomery, Russell, Southwick,
ToU.and, and Westficld, and the several towns in the county of Berk-
shire, form District Number Eleven.
Sect. 3. The mayor and aldermen and selectmen of the several
cities and towns shall as jn-ovided in chapter seven call meetings to be
held on the Tuesday next alter the first Monday in November in the
year one thousand eight hundred and sixty, and thence afterwai'ds,
biennially, on the Tuesday next after the first Monday in November,
lor the voters to give their votes for rejiresentatives in congress.
Sect. 4. The clerks in making their returns of votes ibr representa-
tives to congress under section fifteen of chapter seven, shall transmit
them in emelopes expressing on the outside the district in which the
votes were given.
Sect. 5. In case of no choice in a congressional district, the gov-
ernor shall cause precepts to issue to the mayor and aldermen and select-
men of the several cities and towns in the district, directing them to
call a new meeting on the day appointed in such jireceiit, for the voters
to give their votes for a representative in congress. The precept shall
be accompanied with a list of all the persons voted for in the district
who received fifty votes or more according to the next ]ireceding return,
and shall show the number of votes for each of such jiersons; sim-
ilar ]iroceediiigs shall be had thereon ami the same returns made as
in an original election ; and the like proceedings shall be repeated as
often as occasion may require.
Sect. 6. When a vacancy hajijiens in the representation of this com-
monwealth in congress, tlie governor shall cause precepts to issue for a
new election in the district where the vacancy exists ; and similar pro-
ceedings shall be had thereon as in an original election.
Sect. 7. The several sherifts, upon receiving precepts from the gov-
ernor for the election of a rejiresentative in congress, shall seasmiably
transmit them to the officers of the towns or cities within their respec-
tive counties to whom they are directed.
Chap. 9.] electors of president, &c., of united states. 09
Sect. 8. If any city or town officer wilfully neglects or refuses to Penalty for
perform any duty required of him in this chapter, he shall forfeit for ani'tolyn'^offi^
each offence a sum not exceediu"' two hundred, nor less than thirty cei-s.
J II ° •' K. s. G, § 12.
dollars. '
ELECTORS OF PRESIDENT AXD TICE-PRESIDEXT OF THE TTNTTED STATES.
Sect. 9. In each year when the election of president and -vice-presi- Electors of
dent of the United States takes place, there shall be chosen as many v[™pri"kiciit
electors of jnx'sident and vice-president as the commonwealth is at such to be chosen,
time entitled to. '" ■'^- "' * '■*■
Sect. 10. The mayor and aldermen and selectmen of the several choice of eico-
cities and towns, shall, in the manner iiro\-ided in section throe of chap- lako'pi'ic™ *°
ter seven, call meetings to be held on the Tuesday next after 'the first I'^^N ^3> 5 ••
Monday in Xovember of such year, for the voters to give tlieir votes for
the whule number of electors to which the commonwealth is entitled.
Sect. 11. The names of all the electors to be chosen shall be writ- Names of oioc-
ten on each ballot; and each ballot shall contain the name of at least tors to be on
.... f. 1 ■ 1 1 • • • 1-11 *^"^* ballot,
one inhabitant of each congressional ihstnct into wlueh the common- K. S. o, §13.
wealth shall be then divided ; and shall designate the congressional dis-
trict to which he belongs.
Sect. 12. Votes for electors shall be counted, recorded, certified. Return of
sealed, and transmitted, to the secretary of the commonwealth, as i)ro- y"?p- . , ,
.... ■ ,T ,. - . (• 1 li.-14, 10/,§ 1.
vuled in sections ntteen, sixteen, and seventeen of ehajiter seven. i^i.', aiii, § 2.
Sect. 13. The governor and council shall open and examine such GoV'eJnoV^yc'.^
returns and count the votes, and the several persons who have received to conut Votes,
the highest number of votes so returned shall be declared elected, and soneTiocteS.'^'^
the governor shall forthwith transmit to each person so chosen a certifi- is^i.w, yz.
cate of his election.
Sect. 14. If upon examination of the votes it appears that a majority if a majority
of the whole number of electors are not chosen, the governor shall forth- ""j"!!' ^olje" °'
with by proclamation, call the legislature together, which shall, by joint chosen by gen-
ballot of the senators and representatives assembled in one room, choose lisi.'SI'i 3.
as many electors as are necessary to complete the full number.
Sect. 15. The electors shall convene at the state house in Boston Time and place
on the Tuesday preceding the first Wednesday of December following "j.I.'u.rs'."" "'
their election, at three o'clock in the afternoon. In case of the death or Vacancies, how
absence of an elector, or in case the number of electors is deficient, r.s.'c, §21.
the electors present shall forthwith elect from the citizens of the com-
monwealth so many persons as shall supply the deficiency.
Sect. 16. The electors so convened shall on said first Wednesday of Electors to
December \-ote by ballot for one person for president and one jierson Jy 'IJldYnufsmit
for vice-president of the United States; one of whom at least shall not their votes to
be an inhabitant of this commonwealth. They shall name in their bal- mmu °°^'^™"
lots the person voted for as president, and in distinct ballots the person i*- *• "> § ^2.
voted for a.s vice-president; and they shall make distinct lists of all per-
sons voted for as president and vice-])resident and of the number of
votes given for each ; which lists they shall sign, and certify, and trans-
mit, sealed up, to the seat of the government of the United States,
directed to the president of the senate ; and they shall in all respects
proceed conformably to the constitution and laws of the United States.
Sect. 17. Each elector shall receive three dollars a day for attend- compensation,
ance, and the same compensation for travel as is allowed to a menTBcr JtiJ^'i';,? ^'
of the general court.
Sect. 18. All laws in relation to the duties of sheriffs, city and town putiesofsher-
officers, and voters, in the election of civil officers, shall, as far as the nv?'"',,*""'""'^
same may be ajjplicable, apply to the meetings and elections held tioH 01 electors.
respecting the choice of electors of president and vice-president of the ^- =•■ "• ^ -^ •
United States ; and like penalties shall be incurred for the violation
thereof.
70
ELECTION OF DISTKICT AND COUNTY OFFICERS. [ChAP. 10.
CHAPTER 10.
OF THE ELECTION OF DISTRICT AND COUNTY OFFICERS.
Section
1. Election of district and county ofRcerB.
2. district attorneys.
3. clerks of courts.
4. registers of probate and insolvency.
5. sheriffs and commissioners of insolvency.
6. county commissioners.
7. special commissioners.
8. Not more than one eomraiesioner to be
chosen from the same place.
9. Election of county treasurers and reg^isters
of deeds.
FAILITRES TO ELECT.
10. In case of failures to elect district attor-
Section
neys, clerks of courts, registers of probate
and insolvency, &c.
11. commissioners and special commission-
ers.
12. county treasurers and registers of deeds.
vacancies.
13. Vacancies in the office of district-attorney,
&c., how filled.
14. commissiouer and special commissioner.
15. county treasurer or register of deeds.
16. Penalty on selectmen, &c., for neglect of
duty.
Election of dis- SECTION 1. District-attomeys, clerks of the courts, registers of pro-
omce'r"'.' ™"°*^ bate and insolvency, sheriffs, commissioners of insolvency, county com-
Amend. const, niissioiiers, s]3ceial commissioners, county treasurers, and registers of
ij. 's."i4, § 16. deeds, shall be chosen by ballot on the Tuesday next after the lir.st
1*^5' 9^' II I's' Monday of November in the years in which said officers are respectively
isosl 17.3, §§ 1,2^ to be elected except as hereinafter [irovided. Those persons now hold-
isjs 93 §§ 4 5. ^"S ®^^'^^ offices sliall continue to hold the same during the terms for
which they are elected, unless sooner removed as provided by law.
district attor-
neys.
It. S. K, § 37.
1»50, 173, §§ 1,5.
DISTEICT-ATTORNETS.
Sect. 2. In the year eighteen hundred and sixty-two and every
third year thereafter, there shall be elected by the voters in each of the
districts into which the commonwealth is divided for the administration
of the criminal law, a district-attorney, who shall be a resident within
the district. The officers so elected shall hold their offices for three
years from the first Wednesday in January following their election.
clerks of
courts.
I.soii, 173, §§ 2, (
1S57, 1.
1S5!), 196, § 9.
registers of
probate and in-
solvency.
1S5S, 93, § 4.
CLERKS OF THE COTJETS.
Sect. 3. In the year eighteen hundred and sixty-one and every fifth
year thereafter, there shall be elected by the voters in the county of
Suffolk, a clerk of the supreme judicial court for said county, and two
clerks of the sujierior court for said county, one for the civil, and one for
the criminal, business, and by the voters in each of the other counties a
clerk of the courts ibr the county, who shall act as clerk of the sujireme
judicial court, the su|)erior court, and the county commissioners. Such
"clerks shall hold their offices for five years trom the first Wednesday of
January following their election, unless sooner removed as provided by
law.
REGISTERS OF PROBATE AND INSOLVENCY.
Sect. 4. In the year eighteen hundred and sixty-three and every
fifth year thereafter, there sliall be elected by the voters in each county
a register of probate and insolvency for the county, who shall hold his
office for five years from the first Wednesday of January following his
election.
SHERIFFS AND COMJIISSIONERS OF INSOLVENCT.
sheriffs and Sect. 5. In the year eighteen hundred and sixty-two and every
Chap. 10.] election of district .\nd county officers. 71
tliird yenr thereafter, there shall be elected by the voters in each comity commissioners
a sheritt" for the county, and in the county of Worcester four commis- J^sJTw™!^
sioners of insolvency, and in each of the other counties three conirais- itau322.
sioners of insolvency. Each of said officers shall hold his otiiee for three i^] m, §§ 1,5.
years from the first Wednesday in January ibllowing his election.
COTJXTT COMinSSIOXEES AND SPECIAL COMinSSIONEBS.
Sect. 6. The voters in the county of Miildlesex with those of the Election of
city of Chelsea and the towns of North Chelsea ami Winthrop, and the ,''^""i'^ne?r
voters in each of the other counties exee])t Suffolk and Nantucket shall i<- «• h, §§ 16,
annually elect one county commissioner for the county, who shall hold j^jo^ ^m, § 2.
his office for three years and until his successor is elected and qualitied. i^?.', m.
There shall be three county commissioners in each county except Suf- sGrayViVii-
folk and Nantucket.
Sect. 7. In the year eighteen hundred and sixty-two and every special com-
third year thereafter, there shall be elected by the voters in the county k.'s.' h'^Ǥ"21
of Middlesex with those of the city of Chelsea and the towns of North -^•.
Chelsea and Winthroji, and by the voters in each of the other counties iI^mI sa."*^ ^'
except Suffolk and Nantucket, two special commissioners for the "^*' '''' § *■
county, who shall hold their offices for three years and until their suc-
cessors are elected and qualified.
Sect. 8. Not more than one of the county commissioners and special Not more than
commissioners in each county, except the county of Dukes County, shall si'on™To°be
be chosen from the same city or town. When at any election, except chosen from the
in the county of Dukes County, two persons residing in the s.ame city k.™'; nf j'^is.
or town have a plurality of votes, whereby one would othen\-ise be i^s*. ?'> 5§ 3, 6,
elected coimty commissioner and the other special commissioner, or
both, to either of those offices, the one who has the highest number of
votes shall be elected, and when both have an equal number neither of
them shall l)e deemed elected. When a person residing in a city or
town in which a county commissioner or s]iecial commissioner who is to
remain in office resides, has a plm-ality of the votes, he shall not be
elected.
COtrSTY TEEASITRERS AND REGISTEES OF DEEDS.
Sect. 9. In the year eighteen hundred and sixty-one and every- third Election or
year thereafter, there shall be elected by the voters in each county, urJIr'^nd^e^s.
except Suffolk and Nantucket, a suitable person residins therein, to be terofdeedst
treasurer of the county, who shall hold his office for three years and ii'i,ii2,'n:i, 114.
until his successor is elected and qualified. At the same times there ''^H' l*-
shall be elected by the voters in each district for the registry of deeds, 1^05^02^ §§ 1,3.
and in each county not divided into such districts, a suitable person V^Qray Vo
residing therein to be register of deeds for such district or county, who
shall hold his office for three years and until his successor is elected and
qualified, unless sooner removed as provided by law.
FAILimES TO ELECT.
Sect. 10. If on the days aforesaid there is a foilure to elect a district- in case of fail-
attorney, clerk of the courts, register of ]jrobate and insolvency, sheriff, "^'ict 'atton/ey *'
or connnissioner of insolvency, in any district or county, the goveiTior clerk of courts,
shall liy jtroclamation declare such failure and order a new election to tete''and'in8or
be had on such day as he shall appoint, and shall continue so to order vency,_&c.
such elections until a choice is effected. iJss' 93, §12.
Sect. 11. If on said days there is a failure to elect a county commis- commission-
sioner or special commissioner for any county, the board of examiners cs and special
shall forthwith issue their warrant to the mayor and aldennen and k.s.14,§§ 19,2«>.
selectmen of the cities and towns in such county, or in the county of
Middlesex, to the mayor and aldennen and selectmen of the cities and
72
ELECTION OP DISTRICT AND COUNTY OFFICERS. [CUAP. 10.
In case of fuil-
ure to elect
county treas-
urer and retj:is-
ter of deeds.
K. S. U, §§ lor,
108, 109.
H. S. act of
amcud. § 3.
1831), 118.
See § 16.
towns in said county, and of Chelsea, North Chelsea, and Wiiilhrop,
requiring them on a day mentioned in their warrant, which ^;hall be
withiu twenty days after issuing the same, to call meetings of the
voters in their respective places for completing such elections, and they
shall continue so to issue their warrants until a choice is efl'ected. At
each election the examiners shall furnish the mayor and aldermen and
selectmen with a list of the persons not elected, who at the preceding
election received more than twenty-five votes.
Sect. 12. If on said days there is a failure to elect a county treasurer
or register of deeds for any county or district, the county commissioners
shall forthwith issue their warrant to the mayor and aldennen and
selectmen of the several cities and towns in such county or district,
requiring them on a day mentioned in the waiTant to call meetings of
the voters in their res})ective places for completing such elections, and
they shall continue so to issue their warrants until a choice is effected.
The commissioners shall in such cases meet and count the votes at such
times as they shall adjourn to, for that purpose.
Vacancies in
office of clerk,
&c., how filled.
1856, 173, §§8,9.
Sec § 16.
Ch. 17, § 81.
Ch. 119, § 13.
comnuBsion-
er and special
commissioner.
R. S. 14, § •■•2.
I860, 299, § 2.
1852, 53.
See § 16.
county treas-
urer or register
of deeds.
U. S. 14, § 107.
K. S. act of
amend. § 3.
1850, lis.
See § 16.
Cli. 17, § 87.
Penalty on se-
lectmen, &c.,
for neglect.
K. S. 14, § 28.
1839, 135.
VACANCIES.
Sect. 13. If a person elected to either of the offices mentioned in
section ten is removed therefrom, or otherwise vacates the s.ame, an
election to fill such office for the remainder of his term shall be ordered
by the governor, and shall be had ou the Tuesday next after the first
Monday of November.
Sect. 14. A vacancy in the office of county commissioner or speci.al
commissioner of any county may be filled at any time when the board
of examiners think it expedient ; and they shall issue their warrant there-
for to the mayor and aldennen and selectmen of the cities and towns of
such county, or in the county of Middlesex to the mayor and aldermen
and selectmen of the cities and towns therein, and of Chelsea, North
Chelsea, and Winthrop, and the person chosen shall fill the office for
the remainder of the term.
Sect. 15. If a person elected county treasurer or register of deeds
resigns or otherwise vacates the office, an election to fill the same for
the remainder of the term shall be had on the Tuesday next after the
first Monday of November u])on the order of the county commissioners,
who shall issue their warrant therefor as in the case of failure to elect.
Sect. 16. If the mayor and aldermen or selectmen of any place wil-
fully neglect to comply with a warrant or order issued under either of
the six preceding sections, each of them so neglecting shall Ibriiiit a sum
not exceeding two hundred dollars.
Chap. 11.]
ASSESSMENT OP TAXES.
73
TITLE III.
OF THE ASSESSMENT AND COLLECTION OF TAXES.
Chapter 11. — Of the Assessment of Taxes.
Ckapter 12. — Of the Collection of Taxes.
CHAPTER 11
OF THE ASSESSMENT OF TAXES.
PERSONS AND FROBERTY SUBJECT TO TAXA-
TION.
Section
1. Persons subject to a poll tax.
2. Property subject to taxation.
3. Real estate.
4. Personal estate.
property and PERSONS EXE>rPTED FROM
t.\x^vtion.
5. Property and polls exempted : 1st, property
of tbe United States ; 2d, of the eommon-
wcalth, except ; 3d, of certain institutions ;
4th, of school districts ; 5th, Hunker Hill
Monument ; 0th, household furniture, &c. ;
7th, churches ; 8th, cemeteries, &c. ; 9th, es-
tatcof agricultural societies ; 10th, of certain
females to amount of five hundred dollars ;
11th, cattle, &c. ; 12th, Indians ; 13th, polls
and estates of persons unable to pay.
WHERE POLLS AND PROPERTY SHALL BE
ASSESSED.
6. Poll tax, where assessed.
7. Person to be taxed where he designates his
place of residence to be.
8. Real estate, where and to whom taxed.
9. Tenant may recover of landlord taxes paid,
unless, &c.
10. Real estate of person deceased may be as-
sessed to heirs, &c. One liable for whole
with right to contribution.
11. or to estate of deceased where title is In
dispute.
12. Personal estate, taxed where owner resides.
Except— stock in trade, &c., employed in
other towns.
machinery, &c.
horses, &c.
of persons under guardianship.
personal property held in trust, &c.
deposited to accumulate.
of deceased persons.
13. Property held as a ministerial fund.
14. Personal property mortgaged, &c.
15. Partners may be jointly taxed for stock in
trade.
7 10
manner of assessing taxes.
Section
IG. Ships of copartners assessed where own-
ers reside.
17. State treasurer to send tax warrants to
sheriffs.
18. By what rules all taxes to be assessed.
19. Penalty if assessors refuse to obey warrant.
In sucli cJise commisf^iooers to appoint.
20. Town, &c., liable for state or county tax
not assessed.
21. Keepers of taverns, &c., to give names of
persons taxable. Penalty.
22. Assessors to give notice, to bring in lists
of polls and property.
23. may verify lists by oath of party.
24. to make a f;ur cash valuation.
25. to receive lists as true, unless, &c.
26. Penalty for agreement to assessment on
limited amount, &c., with view to resi-
dence.
27. Assessors shall make an estimate when
lists are not brought in.
28. Estimate conclusive, unless, &c.
29. State, county and town taxes in one as-
sessment.
30. County and city taxes in Boston. Chel-
sea, &c., exempt.
31. Proportions to be assessed on polls, and
property.
32. Assessors may add five per cent, for con-
venience of apportionment.
33. to deposit coi)y of valuation in office.
34. What shall be contained in valuation : es-
tates of inhabitants ; estates of non-resi-
dents.
35. Form of tax list for collectors.
36- Valuation list to be sworn to by assessors.
37. Penalty on assessor omitting to take oath,
&c.
38. Assessors to commit lists to collectors, &c.
39. Contents and form of warrant.
40. If warrant is lost, itc, new one may issue.
41. Discounts may be allowed.
42. rates of, to be posted up.
43. Abatements.
44. Costs before abatement, &c.
74
ASSESSMENT OF TAXES.
[Chap. 11.
Section
45. If assessors refuse to abate taxes, &c.
40. Xo abatonieut allowed unless, &c.
47. To be applied for withiu six months.
48. If tax is paid, amount of abatement to be
paid out of town treasury.
49. Party entitled to certilicate of his abate-
ment.
50. Assessors to assess persons applying seven
days before an election.
Section
51. Assessors to be responsible only for fidel-
ity, &c.
52. Pay of assessors.
REASSESSMENT OF TAXES.
53. Taxes, invalid, &c., except poll taxes, may
be reassessed.
ILLEGAL ASSESSMENTS.
54. to be void to extent of illegal excess.
PERSONS AND PEOPEETT SUBJECT TO TAXATIOX.
Poll tax.
E. S. 7, § 1.
184.3, 87.
1844, 145.
7 Mass. 523.
4 Met. im.
5 Met. 6iH.
Property tax.
K. S. 7, § 2.
4 Mrt. 51-4.
4 Cusli. I-'.
H Cil«h. -HT.
4 (.iray, 51 K).
. Keal.
R. S. 7, § 3.
10 Cush. 514.
Personal.
E. S. 7, § 4.
183',), 139, § 2.
1840, IM.
Hi Pet. 435.
fi Pick. 98.
10 Pick. 572.
« Met. 73, 199.
7 Cush. (iOO.
10,Cush. 128.
Section 1. A poll tax shall be .assessed in the manner hereinafter
provided, on every male inhabitant of the commonwealth above the age
of twenty year.s, whether a citizen of the United States or an alien.
Sect. 2. All property, real and personal, of the inhabitants of this
st.ate, not expressly exempted by law, shall be subject to taxation as
hereinafter provided.
Sect. 3. Real estate, for the purposes of taxation, shall include all
lands within this state, and all buildings and other things erected on or
affixed to the same. •
Sect. 4. Personal estate shall, for the purposes of taxation, include
goods, chattels, money, and eflects, wherever they are, ships and vessels
at home or abroad, money at interest, and other debts due the persons
to be taxed more than they are indebted or pay interest for, public
stocks and securities, stocks in turnpikes, bridges, and moneyed coqio-
rations, witliin or without the state, the income from an annuity, and so
much of the income from a profession, trade, or emplo}^nent, as exceeds
the sum of six hundred dollars a year; but no income shall be taxed
■which is derived from property subject to taxation.
Exempted.
K. S. 7, § 5.
See Ch. 13, § 75.
Property of the
United States.
of the state.
1853, 122.
4 Met. 5(V4.
H Cush. 237.
4 Gray, 600.
certain insti-
tutions.
2 Cush. Cll.
school dis-
tricts,
l.si:!, M.
liuukcr Hill
Monument,
llouschold fur-
niture, &c.
Churches.
1S41, 127.
1 Met. 538.
Cemeteries, &c.
1841, 1:4, § 7.
Estate of asfri-
cultural soeii^
ties.
1851, 21.1.
of certain fe-
m.ale8 to
amount of five
PEOPEETT AND PERSONS EXEMPTED FROM TAXATION.
Sect. 5. The following property and polls shall be exempted fi"om
taxation : —
First. The property of the United States.
Second. The projierty of the commonwealth, except real estate of
which the commonwealth is in possession under a mortgage for condi-
tion broken.
Third. The personal property of literary, benevolent, charitable, and
scientiiic institutions incor]iorated within this commonwealth, and the
real estate belonging to such institutions, occupied l)y them or their
officers for the puqjoses for which they were incorporated.
Fourth. All ]u-operty belonging to common school districts, the
income of which is a])])i'o]irintcd to the purposes of education.
Fifth. The Bunker Hill Monument.
Sixth. The household furniture of every person, not exceeding one
thousand dollars in value, his wearing apparel, farming utensils, and
mechanics' tools necessary for carrying on his business.
Seventh. Houses of religious worship, and the ]iews and furniture
(exce])t for parochial purjioses) ( but jiortions of such houses ajiprojm-
ated tor purposes other than religious worship shall be taxed at the
value thereof to the owners of the houses.
Eighth. Cemeteries, tombs, and rights of burial, so long as the same
shall l)e dedicated for the burial of the dead.
Ninth. The estate, both real and personal, of incorporated agricul-
tural societies.
Tenth. The ]iro]ierty to the amount of five hundred dollars of .a
widow or unmarried female, and of any temale minor whose father is
deceased, if her whole estate real and personal not otherwise exempted
Chap. 11.] assessment of taxes. 75
from taxation does not cxcoed in valuo the sum of one thousand dol- lunidiTii doi-
•'''l^- 1858, 4:), §1.
Eleventh. Mules, horses, and neat cattle, less than one year old; and Cattle, &c.
swine and sheep less than six months old.
Twelfth. The polls and estates of Indians. Indians.
Thirteenth. The ])olls and any portion of the estates of persons who Poiisandee-
by reason of age, infirmity, and po\erty, are in the judgment of the lilJabie'tomv"*
assessors unable to contribute fully towards the public charges.
WHEEE POLLS AND PROPEETT SHALL BE ASSESSED.
Sect. G. The poll tax shall be assessed upon each taxable person, in Pou tax, whcic
the place where he is an inhabitant on the first day of May in each h^s'^^^sb
year, except in cases otherwise jjrovided for by law. The poll tax of 1 iuet. -iiUj^oa.
minors liable to taxation shall be assessed to, and in the places of the n*cu*8ii!*362.
residence of, the parents, masters, or guardians, havins control of the 2 Gray, 484.
f \ ■ 1 ..•/•• 1 .. X 12 Cush. 44, J-',
persons 01 such minors ; but 11 a mmor lias no parent, master, or guar- 54.
dian, within this state, ho shall be personally taxed for his poll, as if he
were of full age. The ]ioll tax of every other person under guardian-
ship shall be assessed to his guardian in the place where the guardian
is taxed for his own poll.
Sect. 7. A taxable person in a city or town on the first day of May Person to be
who, when inquired of by the assessors thereof, refuses to .state where de^f.S^atcs'his"'
he considers his legal residence to be, shall for the purpose of taxation piad of rcsi-
be deemed an inhabitant of such place. If when so inquired of he iSo.'a'o. ^
designates another place as his legal residence, said assessors shall notify
the assessors of such ])lace, who, upon receiving the notice, shall tax
such person as an inhabitant of their city or town. But such person
shall not be exemj^t from the pajTiient of a tax legally assessed upon
him in the city or town of his legal domicil.
Sect. 8. Taxes on real estate shall bo assessed in the city or town Real estate,
where the estate Ues, to the person who is either the owner or in pos- k''"*:^^'^'
session thereof on the first day of May. Mortgagors of real estate shall, 1 Cush. 142
for the purposes of taxation, be deemed owners until the mortgagee ^>Giny, Tss!
takes possession, after which the mortgagee shall be deemed the owner. " (ir-iyi 12-, 277.
Sect. 9. When a tenant paying rent tor real estate is taxed therefor, Tenant may rev
he may retain out of his rent the taxes paid by him, or may recover the ["rd.'tlxespaid,
same in an action against his landlord, unless there is an agreement to ^° g" j' 4'g
the contrary. ' ' ''
Sect. 10. The undivided real estate of a deceased person may be Real estate of
assessed to his heirs or devisees without designating any of them by n"yb" as^lsed
name, until they have given notice to the assessors of tlie division of !y ''.'r"!;]*?'
the estate and the names of the several heirs or devisees ; and each heir wii'oUs'with
or devisee shall be liable for the whole of such tax, and when paid by ^^^^H^" ™''*"-
him he may recover of the other heirs or devisees their respective por- K. s. 7, § 12.
tions thereof.
Sect. 11. The real estate of a person deceased, the right or title to or to estate
which is doubtful or unascertained by reason of litigation concerning "!,|'j!|.^r?f,'i^ig in
the will of the deceased, or tlie validity thereof, may be assessed in gen- dispute,
eral terms to the estate of the deceased; and said tax shall constitute a perMuai estate,
lien upon the land so assessed, and may be enforced Ijy the sale of the o'J'^„eVrosMes
same or a part thereof, as iirovided for enforcing other liens for taxes r. s. 7, §§9,'jo.
on real estate. " I'^'i'V^-
h 1 U'k. us.
Sect. 12. All personal estate within or without this state, shall be 1 J."'; -^^i^"-
assessed to the owner in the city or town where he is an inhabitant on n cusii. 302.
the first day of May, except as follows : i] gj"''-'|S-
First. All goods, wares, merchandise, and other stock in trade, (except ' cxcept'stock
ships or vessels owned by a copartnership,) including stock emjiloyed in j.mpfjfye *£'
the business of manufacturing or of the mechanic arts, in cities or towns other towns.
76
ASSESSMENT OF TAXES.
[Chap. 11.
1839, 139, § 1.
1859, 114.
4 Met. 186.
4 Cush. 543.
10 CuBb. Ii5
G Gruy, 579.
Machinery,
where taxed,
&c.
1837, 86.
Horses, &c.
1S57, 301, § 1.
Property of
persons under
guardianship.
1K55, 105.
1S59, 258.
2 Gray, 494.
Trust property,
Ac.
5 Cush. 93.
0 Gray, 132.
Property de-
posited to accu-
mulate.
of deceased
persons.
1848, 235.
1852, 234.
6 Pick. 236.
4 Cush. 1.
within the state, other than where the owners reside, whether such own-
ers reside within or without this state, sliall be taxed in those places
where the owners hire or occupy manufactories, store.s, shops, or wharves,
whether such property is within said phices or elsewhere on the fii'st day
of May of the year when the tax is made.
Second. All machinery emjiloyed in any branch of manufactures,
and belonging to a person or corjioration, shall be assessed where such
macliinery is situated or cmploj'ed ; and, in assessing the stockholders
for their shares in any manulactiiring corporation, there shall first be
deducted fi'om the value thereof, the value of the machinery and real
estate belonging to such corporation.
Third. Horses, mules, neat cattle, sheeji, and swine, kept throughout
the year in jilaces other than those where the owners reside, whether
such owners reside within or without this state, and horses emjiloyed in
stages or other vehicles for the transjjortation of passengers for hire,
shall be assessed to the owners in the places where they are kept.
Fourth. Personal property belonging to persons under guardianship,
shall be assessed to the guardian in the place where the ward is an in-
habitant, unless the ward resides and has his home without the state, in
which case it shall be taxed to the guardian in the place where he is an
inhabitant.
Fifth. Personal property held in trust by an executor, administrator,
or trustee, the income of which is payable to another person, shall be
assessed to the executor, administrator, or trustee, in the place where
such other person resides, if within the state, and if he resides out of the
state it shall be assessed in the place where the executor, administrator,
or trustee, resides, and if there are two or more executors, administra-
tors, or trustees, residing in difterent places, the property shall be as-
sessed to them in equal portions in such places, and the tax thereon
shall be paid out of said income. If the executor, administrator, or
trustee, is not an inhabitant of this state, it shall be assessed to the per-
son to whom the income is payable, in the place where he resides.
Sixth. Personal property placed in the hands of a corporation or
individual as an accumulating fund for the future benefit of heirs or
other persons, shall be assessed to such heirs or persons, if within the
state, otherwise to the person so placing it or liis executors or adminis-
trators until a trustee is appointed to take charge of such proj^erty, or
the income thereof
Seventh. The personal estate of deceased persons shall be assessed
in the place where the deceased last dwelt. After the appointment of
an executor or administrator, it shall be assessed to such executor or
administrator until he gives notice to the assessors that the estate has
been distributed and paid over to the parties interested therein. Before
such a]ipointment it shall be assessed in general terms to the estate of
the deceased, and the executor or administrator sub.scquently appointed
shall be liable for the tax so assessed in like manner as though assessed
to him.
Sect. 13. Property held by a religious society as a ministerial fund
shall be assessed to the treasurer of the society. If such property con-
sists of real estate, it shall be taxed in the town where it lies ; if it con-
sists of personal property', it shall be taxed in the town where such soci-
ety usually hold their meetings.
Sect. 1-1. Personal property mortgaged or jiledged shall, for the pur-
poses of taxation, be deemed the )iroj)erty of the party who has the
possession.
Sect. 15. Partners in mercantile or other business, whether residing
ent places, may be jointly taxed under their partner-
ship name in the place where their business is carried on, for all the
personal property employed in such business, excejtt shii)S or vessels.
Property held
lis a ministerial
fund.
K. S. 7, § 10.
19 Pick. 542.
Personal prop-
erty, mort-
gaged, &c.
1!. S. 7,§11.
10 Met. 334.
Partners may
fw stoJk to"'"'"' i» tli<^ same or difte
trade.
Chap. 11.] assessment of taxes. 77
If they have places of business in two or more towns, they shall be h. .S. r, § 13.
taxed in each of such places for the proportion of property employed J^^'si^ogs.
therein. When so jointly taxed each partner shall be liable for the ^ Gray, 132.
whole tax.
Sect. 16. Ships or vessels owned by a copartnership shall be assessed ships of copmt-
to the several partners in theii- places of residence, proportionally to «^h"re'*owuere
their interests therein. !'cfi''l',.
Ibatj, 114.
MAJSnSTER OF ASSESSDfG TAXES.
Sect. 17. When a state tax is to be assessed, the treasurer shall send state treasurer
his warrants for the assessing thereof, to the sheriffs of the several coun- 'varrantl'm
ties, who shall immediately transmit them to the assessors to whom eheriffs.
they are directed.
Sect. IS. The assessors shall assess state taxes for which they re- By what rules
ceive warrants from the treasurer, according to the rules prescribed in agsejeel'" ^^
this chapter. They shall in like manner assess all county taxes which i!. s. ;, §_i6.
are duly certified to them, all city or town taxes voted l)y their places, " ^ ■ ' ■
and all taxes duly voted and certified by school districts therein.
Sect. 19. If the assessors of a city or town neglect to obey a war- Penalty if as-
rant so received from the treasurer, or to assess such a county, town, or lo'obey war-^^
district tax, each assessor so neglecting shall forfeit a sum not exceeding raut.
two hundred dollars ; and the commissioners in the respective counties commissioners
sliall forthwith ap]5oint other suitable persons to assess such tax, accord- ^ "^'P-"'^,';. ,j
ing to the warrant of the treasurer. The per.sons so appointed shall
take the same oath, perform the same duties, and be liable to the same
jienalties, as are provided in the case of assessors of towns.
Sect. 20. If within five months after the recei])t of a waiTant from Town, &c., lia-
t lie state treasurer, or a certificate from the county commissioners re- county tax uoT
quiring the assessment of a tax, the same is not assessed and certified ff ^|''^|''; 3-
as the law requires, the amount of the tax may be recovered of the city itsi'aia.
or town where the neglect occurs, in an action of contract by the
treasurer of the state or county respectively.
Sect. '21. Keepers of taverns and boarding-houses, and masters and Keepers of tav
mistresses of dwelling-houses, shall, upon apjilicatyun of an assessor in ^""^011-1^
the jdace where their house is situated, give information of the names persous taxa-
of all persons residing therein and liable to be assessed for taxes, renaity.
Every such keeper, master, or mistress, refusing to give such information Jg^- }^-
or knowingly giving fiilse information, sliall forfeit twenty dollars for
each oiience.
Sect. 22. Before proceeding to make an assessment, the assessors Assessors to
shall give seasonable notice thereof to the inhabitants of their respective fring"°J'ifst°t,f
jilaces, at any of their meetings, or by posting up in their city or town polls and prop-
one or more notifications in some public place or jilaces, or by some e.s. r, §19.
other sufficient manner. Such notice shall require the inhabitants to ^-c^g^^-ji'-
bring in to the assessors, within a time therein sj^ecitied, true lists of all s cusu! 55!
their polls and estates, both real and personal, not exempted from taxa-
tion.
Sect. 2.3. The assessors shall in all cases require a person bringing shall verify
in such a list, to make oath that the same is true ; which oath may be Jl"', paJiy""' ""^
administered by either of the assessors. k. s. r, § 20.
Sect. 24. The assessors of each place shall at the time appointed to make cash
make a fiir cash valuation of all the estate real and personal, subject to l^s^'V.^'ei.
taxation therein. _ rGra^'%V"
Sect. 25. They shall receive as true the list brought in by each indi- to'^receive
vidual according to the provisions of this chapter, unless on being |j,gg* If^"""' ""
thereto required by the assessors, he refuses to answer on oath all k. s. 7, § 22.
necessary inquiries as to the nature and amount of his i)ro]iorty. s'cush. «!"
Sect. 26. Any person who in any way directly or indirectly pro-
7*
78
ASSESSMENT OP TAXES.
[Chap. 11.
Penalty for
jigreeing to
assessmeut on
limited amount,
&c., witli view
to residence,
Assessors shall
make an esti-
mate,when lists
are not brought
in.
R. S. 7, § 23.
8 Cush. Ii3.
To be conclu-
sive, unlesH, &c.
K. S. 7, § -.H.
5 Cush. 'J7.
S Cush. 03.
State, county,
and town tuxes
in one assess-
ment.
K. S. 7, § 25.
County and city
taxes m Bos-
ton, how as-
sessed.
Chelsea, &c.,
exempt.
R. S. 7, § 2a.
11. S. 14, § 34.
21 Pick. ivi.
Proportions to
be assessed ou
polls and prop-
erty.
R. S. 7, § 27.
1!59, 137.
Assessors may
add live per
cent, for conve-
nience of appor-
tionment.
K. S. 7, § 28.
to deposit a
copy of valua-
tiou iu office.
K. S. 7, § Jti.
2 Gray, 2'.lfi.
What shall be
contained iu
valuation.
R. S. 7, § 30.
estates of in-
habitants.
21 Pick. (H.
estates of
non-residents.
poses or agrees to an assessment on any specific or limited amount less
than he is liable by law to be taxed for, with a view or as an induce-
ment to make any jiarticular place his residence for the purjiose of
taxation, shall be punished by tine of one tliousand dollars ; and any
assessor guilty of mailing or assenting to any such proposal shall be sub-
ject to a like penalty.
Sect. 27. They [the assessors] shall ascertain as nearly as possible the
particulars of the personal estate, and of the real estate in possession or
occupation, as owner or otherwise, of any person who has not brought
in sucli list, and make an estimate thereof at its just value, according
to their best information and belief.
Sect. 28. Such estimate shall be entered in the valuntion, and shall
be conclusive upon all persons who have not seasonably brought in lists
of their estates, unless they can show a reasonable excuse for the
omission.
Sect. 29. The assessors, when they think it convenient, may include
in the same assessment their state, county, and town taxes, or any two
of them.
Sect. .30. In the city of Boston, all taxes assessed for city or county
purposes may be assessed separately, as county taxes and as city taxes,
or under the denomination of city taxes only, as the city council from
time to time directs. Chelsea, North Chelsea, and Winthrop, shall not
be taxed for county purposes.
Sect. 31. Tiie assessors shall assess upon the polls, as nearly as may
be, one-sixtli part of the whole sum to be raised ; but the whole poll
tax assessed in one year upon an individual for town, county, and state
purposes, except highway taxes separately assessed, shall not exceed
one dollar and fifty cents ; and the residue of such whole sum shall be
apjiortioned upon property, as provided in this chapter.
Sect. 32. They may add to the amount of a tax to be assessed,
such sum, not exceeding five per cent, thereof, as any fractional divisions
of the amount may render convenient in the apportionment.
Sect. 33. They shall make a list of the valuation and the assess-
ment thereon, and, before the taxes assessed are committed for collec-
tion, shall deposit the same, or an attested copy thereof, in their ofiice,
or if there is no offict, with their chainnan, for public inspection.
Sect. 34. The first part of the list shall exhibit the valuation and
assessment of the polls and estates of the inhabitants assessed ; and
shall contain in sejjarate columns the following particular.s, to wit : —
The names of the inhabitants assessed ; and opposite to their names,
The number of polls.
The amount of their ])oll tax.
The description of their real estate.
The true value of their real estate.
The tax assessed on such real estate.
The description of their personal property.
The true value of their personal property.
The tax on their personal pro))erty.
The sum total of each person's tax.
The second part shall exhibit the valuation and assessment of the
estates of non-resident owners ; and shall contain in separate columns
the following jiarticulars, to wit: —
The names of the non-resident owners of the property assessed, or
such description of them as can be given.
Their places of abode, if known.
The descri]ition of their estate.
The true value of such estate.
The tax thereon.
Chap. 11.] assessment of taxes. 79
Sect. 35. The tax list committed to the collectors shall be in sub- Form of tax Ust
^ i, for coUcctors.
Stance, as loUows : k. s. 7, § ai.
Names.
No. of PoUs.
Poll Tax.
Tax on Kual
Kstatc.
Tax on Personal- m«+ai
Property. ^''^•
Time when
paid.
9 Pick. 9?.
2 Gray, 298.
NON-RESIDENTS.
Names.
Places of abode, if known.
Tax.
Sect. 36. The assessors, or other persons empowered to assess tlie Valuation list
taxe.s in a city or town, shall, at the close of said valuation list, subscribe i.y^i'sre^sOTs!"
and take the following oath : i»53, 319, § 3.
" We, (the assessors, or mayor and aldermen, as the case may be, of ,) do
hereby solemnly swear that tiie foregoing list is a full and true list of the names of
all persons known to us who are liable to taxation in , (here insert the name
of the city or tov.n,) during the present year, and that the real and personal estate con-
tained in said list, and assessed upon each individual m said list, is a full and accurate
assessment upon all the property of each mdividual, liable to taxation, at its full and
fair cash value, according to our best knowledge and belief."
Sect. 37. Any assessor or other person assessins; taxes in a citj' or penalty on as-
town, who omits to take and subscribe the oath prescribed in the pre- J'i'lJ',™'^'' iJSJ^*"
ceding section, shall be ])unished by a fine of ten dollars; l)ut the omis- oatli.
sion to take and subscribe said oath shall not prevent the collection of "^" sw. §§ 1. 2.
a tax otherwise legally assessed.
Sect. 38. The assessors shall, within a reasonable time, commit said AKsessors to
tax list with their warrant to the collector, or if no collector is chosen eon"()tors*'&c.''
to a constable, or if there is no constable to the sheriif or his dejjuty, n.s. r,§§:i2,34.
for collection. u! s.' w, §.33.
Sect. 39. The warrant sh.all specify the duties of the collector as V '■*''''.■ !f.- rn,
prescribed by law in the collection of taxes, the times when and the Co'iitents and
persons to whom he shall pay them in, shall be substantially in the form J""" "'"^'''"■-
heretofore used, and need not be under seal. n- s. 7, § 33.
Sect. 40. When a warrant issued for the collection of taxes is lost r, M^t'. :!«'.
or destroyed, the assessors may issue a new warrant therefor, which shall Ji "-'rrant is
have the same force and effect as the original warrant. one may issue.
Sect. 41. Towns, at their annual meeting, and city councils of cities jj; |'. ^'4 of'
may allow a discount of such sums as they tliink exjiedient to ]iersons ainend. § 1.
making voluntary payment of their taxes within such periods of time ul's?™! 35.
as they prescribe. In such case the collectors shall make such discount
accorilingly.
Sect. 4ii. When such discount is allowed, the assessors, at the time of r.ites to be
committing tlieir warrant to the collector, shall post up in one or more f ""^''i "^go
public places within the city or town, notice of the rates of discount.
Sect. 43. A person aggrieved by the taxes assessed upon him, may Abatements,
apply to the assessors for an abatement thereof; and, if he makes it }}\f^J'J?''
apjiear that he is taxed at more than his just proportion, they shall make I Cutih.Si.
a reasonable abatement. Enll^ll'??^^
Sect. 44. If legal costs have accrued before making such abatement, Costs before
the person apjahdng for the abatement shall j)ay tlie same. k."?."',™'*!*. "'
Sect. 4.5. If the assessors refuse to make an abatement to a person, s™ § 4s.
he may, within one month thereafter, make complaint thereof to the fuse to abate, '
county commissioners by filing the same with their clerk, and if ujion a ^^-^ - s 39
hearing it appears that the complainant is overrated, the commissioners j; i^ick.'gk
shall make such an abatement as they deem reasonable. scusil.'ss?'
Sect. 46. No person shall have an abatement unless he has filed No.ibntcment
with the assessors a list subscribed by him of his estate liable to taxa- u. s. -', §40.
tion, and made oath that it is full and accurate according to his best Jji],-' 3^' 1 3'
knowledge and belief. When such list is not filed within the time i Pick. 399. '
80
ASSESSMENT OP TAXES.
[Chap. 11.
5 Pick. 451,498.
7 Pick. lui).
21 Pick. a.'S.
4 Met. 599.
11 Met. 3:J9.
5 Cusli. 97.
6 Cush. 4r7.
8 Cush. (j-i.
5 Gray, 3<»5.
To be' applied
for witiiiu six
months.
K. S. 7. §41.
If tax is paid,
nraouut of
abatement to be
paid out of
town treasury.
K. S. 7, § 4-'.
Party entitled
to certilic.iite.
K. S. 7, 5 41.
AssessorH to
assess pfi-sons
a]iiilyinj,' seven
davs l»c;orj an
election.
1,SV-', va.
1S".S, 107.
Vi Met. 178.
to be respon-
sible only for
fidelity, &c.
11. S. 7, § 44.
4 Pick. 399.
5 Pic-k. 451, 498.
7 Pick. lOfi.
21 Pick. 3S3.
4 Mi4. 599.
11 Met. .3:19.
4 Gray, 42.
Pay of assess-
ors.
K. S. 7, § 45.
18.55, 224.
3 Met. 431.
specified by the assessors for bringing it in, no complaint from the
judgment of the assessors shall be sustained by the county commis-
sioners, unless they are satisfied that there was good cause why such
list was not seasonably brought in.
Sect. 47. No abatement shall be allowed to a person unless he makes
application therefor within six months after the date of his tax bill.
Sect. 48. A person having an abatement made, shall, if his tax has
been jsaid, be reimbursed out of the treasury of the city or town to the
amount of the abatement allowed, together with all charges, except the
legal costs jirovided for in section forty-four.
Sect. 49. Every ])erson whose tax is abated, shall be entitled to a
cortitieate thereof from the assessors, or clerk of the commissioners, or
other projjer officer.
Sect. 50. When a person seven days or more prior to any election
gives notice in writing aceom])anied by satisfactory evidence to the
assessors of a city or town, that he was at the time of the last annual
assessment of taxes in such place an inhabitant thereof and liable to pay
a poll tax, and furnishes under oath a true list of his jiolls and csttite,
both real and jiersonal not exemjit from taxation, the assessors shall
assess him for his polls and estate in the same manner they would have
done if such list had been duly brought in ; and the assessors shall, five
days at least before any election, deposit with the clerk of the place a
list of the persons so assessed. The tax thus assessed shall be entered
ill the tax list of the collector of the city or town, and he shall collect
and pay it over as specified in his warrant.
Sect. 51. The assessors shall not be responsible for the assessment
of a tax in a city, town, parish, religious society, or school district, for
which they are assessors, when such tax is assessed by them in pursuance
of a vote for that purpose, certified to them by the clerk or other pr<ii)er
oflicer of such city, town, ]>arish, religious society, or school district,
except for the want of integrity and fidelity on their own jiart.
Sect. 52. Each assessor shall be paid by his city or town one ilollar
and fifty cents a day, for every whole day that he is employed in that
service, with such other compensation as the city or town shall allow.
eeassessmext of taxes.
Taxes, invalid, Sect. 5-3. Every tax, except a poll tax, which is invalid by reason
&c., except poll ^f ^,jy error or irregularity in the assessment, and which has not lieen
reassessed. paid, or which lias been recovered back, may be reassessed by the assess-
ors for the time being, to the just amount to which, and ujxni the estate
or to the person to whom, such tax ought at first to have been assessed,
whether such person has continued an inhabitant of the same city or
town or not.
1S59, 11S,§ 1.
ILLEGAL ASSESSMENTS.
to be void to Sect. 54. If through any erroneous or illegal assessment or ap]ior-
extent of illegal tionment of taxes, a party is assessed more or less than his due i)ropor-
isB'j, lis, § 4. tion, the tax and assessment shall be void only to the extent of the
Seech. 12, §56. iUggal 6X0688.
Chap. 12.]
COLLECTION OF TAXES.
81
CHAPTER 12.
OF THE COLLECTION OF TAXES,
Sectiox
1. Collectors to collect taxes.
2. to complete collections though term ex-
pire.
3. Demand to be made.
4. When credit doubtful, taxes may be col-
lected forthwith.
5. Person chiiniing abatement must produce
certificate. Liable to costs.
6. Errors in names not to defeat collection.
7. Distress and sale to pay taxes, except, &c.
8. Distress, ho>v long kept, how advertised,
and sold.
9. Sale may be adjourned once.
10. Seizure of shares, how made,
11. Sales of ghares seized, how made.
12. Surplus to be returned to owner.
13. After fourteen days, party may be impris-
oned.
14. Copy of warrant, &c., to be left with jailer.
15. Persons imprisoned for non-payment of
taxes, how discharged.
IG. Collectors, when liable to pay tax, &c
17. may demand aid. Penalty.
18. Persons removing from collector's precinct
%vithout paynig.
19. Remedy if persons remove, &c., without
paying.
20. agiunst executors and administrators.
21. against persons who are not owners of
the real estate taxed to them.
22 Taxes to be lien on real estate for two
years, &c.
23. reassessed to be a lien, unless, &c.
24. Resident mortgagee of real estate, when to
be called upon for taxes.
25. When non-resident appoints attorney, de-
mand how made.
26. When made, collector to wait two months.
27. Affidavit of collector, &c. Evidence of de-
mand on attorney.
28. Sales of real estate, how advertised.
29- Contents of advertisement.
30. Notices, how posted.
Sectiox
31. When nume of place has been changed.
32. Affidavit of publishing and posting notifi-
cationg to be evidence, if recorded.
.33. Sale by auction, of sufficient, &c.
34. Collector may adjourn sale not exceeding
seven days in whole.
35. Deed to he given to purchaser, subject, &c.
When to be recorded.
.30. Owner may redeem within two years, &c.
37. how redeemed when purchaser cannot be
found, &c.
3S. Duty of treasurer.
3'.'. Mortgagee may pay taxes on real estate
in i'L'rl;iiQ cases.
40. shall i)ay such taxes upon taking pos-
session. Entitled to deed on tender.
41. entitled to receipt for such taxes paid to
collector. May tack same to mortgage.
4".i. S. J. C. to have equity powers.
43. When tax list, &c., is committed to eheriff,
Ac.
44. Sheriff's fees for collecting,
45. When treasurers are made collectors, how
to proceed.
46. Collectors to exhibit accounts every two
mouths, if required.
47. Penalty.
48. Collectors to be credited with abatements,
&c.
49. Deficiency in state or county tax, how sup-
plied.
50. Same, when collectors neglect to pay.
51. Remedy for collector's neglect.
52. If collector becomes Insane, Ac, selectmen
may remove him.
53. Tax list of deceased collector, how to be
completed. Temporary collector.
54. If collector dies, list to be delivered to se-
lectmen.
55. Compensation.
RECOVERY OF TAXES COLLECTED.
56. Taxes paid to collector,when recovered back.
Sectiox 1. Every collector of taxes, constable, sheiiff, or deputy
sheriff* receiving a tax list and waiTant from tlie assessors, shall proceed
to collect the taxes therein mentioned, according to the warrant.
Sect. 2. The collector shall, unless removed from office as herein-
after provided, complete the collection of taxes committed to him,
although his teiTn of office expires before such completion.
Sect. 3. Collectors shall before distraining the goods of a person for
his tax, demand pa^Tnent thereof from such person, either personally or
at his usual phice of abode, if to be found within their precincts.
Sect. 4. When the credit of a person taxed is considered doubtful
l)y the assessors, they may order the collector forthwith to compel pay-
ment by distress or imprisonment, whether the tax is made payable
immediately, at a future day, by instalments, or otherwise.
Sect. 5. If a person claims the benefit of an abatement, he shall
exhibit to the collector demanding his taxes, a certificate of such abate-
ment, from the assessors or other proper officer, as provided in chapter
eleven ; and shall be liable to pay ail costs and officers' fees incurred
before exhibiting such certificate.
11
Collectors to
colh^ct taxes.
K.S.7, §^4.
R- S.S, §§ 1,33.
to complete
collections
though term
expire.
R. S. S, § 2.
Demand to be
made.
K. S. 8, § 3.
1 Met. 328.
Wlien credit
douliTtul, taxes
may be collect-
ed ^orthwith-
R. S. S, § 12.
Person claiming
alvitr-ni'^nT must
produce certifi-
cat".
Liable to costs.
R. S. S, § 4.
9 Met. 5(H.
82
COLLECTION OF TAXES.
[Chap. 12.
Errors in names
not to rk'io.it
collection.
E. S. 8, § 5.
6 Met. 4r4.
7 Gray, 12r.
Distress .lud
Bale to pay tax-
es ; except, &c.
K. s. s, § ;.
I8i<i, \'.m, § 1.
9 Met. 304.
11 Ciisli. •T'iS.
7 Gray, 133.
Distress, how
louf^ kept, how
advertised and
sold.
E. S. 8, § 8.
I Met. »M.
1.3 Met. S5.
II Cash. 338.
Sale may
be adjourned
once.
E. S. 8, § 9.
Seizure of
shares, how
made.
181G, 195, § 2.
Sales of shares
seized, how
made.
IS-hi, 105, §§ 3, 4.
4 Cush. 10.
11 Cush.:«8.
Surplus to be
returned to
owner.
K. S. 8, § 10.
5 Gray, 53n.
After fourteen
days, party may
be imprisoned.
E. S. 8, § 11.
13 Jlet. 85.
2 Gray, 298.
7 Gray, 133.
13 Gray, 93.
Copy of war-
rant, &c., to be
left with jailer.
E. S. S, § 13.
Persons im-
prisoned ibr
non-payment of
taxes, iiow dis-
charged.
IKor, 141, §34.
See Ch. 124.
Collectors,
when liable to
pay, &c.
Sect. C. If, in the assessors' lists or in tlieir warrant an<l list com-
mitted to the collectors, there is an error in the name of a person taxed,
the tax assessed to him may be collected of the person intended to be
taxed, if he is taxable and can be identified by the assessors.
Sect. 7. If a person refuses or neglects to pay his tax, the collector
shall levy the same by distress or seizure and sale of his goods, including
any share or interest he may have as a stockholder in a corjioration
incorporated under authority of this commonwealth, and excepting the
following goods :
The tools or implements necessary for his trade or occupation ; beasts
of the plough necessary for the cultivation of his improved lands; mili-
tary arms, utensils for house-keeping necessary for upholding life, and
bedding and apparel necessary for himself and fliniily.
Sect. 8. The collector shall keep the goods distrained, at the expense
of the owner, for four days at least, and shall, witliin seven days after
the seizure, sell the same by public auction, for payment of the tax and
charges of keeping and sale, having given notice of the sale by posting
ii|) a notification thereof in some public place in the city or town, lorty-
eight hours at least before the sale.
Sect. 9. The collector may once a<liourn such sale for a time not
exceeding three days : he shall fortlnvifli give notice of such adjourn-
ment, by posting a notification at the place of sale.
Sect. 10. The seizure of a share or other interest in a corporation
may be made by leaving with any officer of the corporation, with whom
a cojiy of a writ may by law be left when the share of a stockholder is
attached on mesne process, an attested copy of the warrant, with a cer-
tificate thereon, under the hand of the collector, setting forth the tax
which the stockholder is to pay, and that, u]ion his neglect or refusal to
pay, the collector has seized such share or interest.
Sect. 11. The sale of such share or interest shall be made in the
manner prescribed by law for the sale of goods by collectors of taxes in
like cases, and also subject to the jirovisions of sections forty-six and
fortj'-seven of chapter one hundred and thirty-three, respecting sales on
executions.
Sect. 1:2. If the distress or seizure is sold for more than the tax and
charges of kee])ing and. sale, the collector shall return the surplus to the
owner, upon demand, with an account in writing of the sale and charges.
Sect. 13. If a person refuses or neglects for fourteen days after
demand to pay his tax, and the collector cannot find sutticient goods
u]ion which it may be levied, he may take the body of such ])erson and
coinmit him to prison, there to remain until he pays the tax and charges
of commitment and im])risoiiment, or is discharged by order of law.
Sect. 14. When the collector commits a ]ierson to prison, he shall
give the keeper thereof an attested copy of the warrant, with a ceriifi-
cate thereon, under the hand of the collector, setting forth the sum wliicli
such person is to pay as his tax, with the cost of taking and committing
him, and that upon his having neglected ]iayment for fourteen days, or
otherwise, as the case may be, and for want of goods whereof to make
di.stress, he has taken his body.
Sect. 15. When a person committed to ]irison for the non-]iayment
of taxes is unable to pay the same, he shall be entitled to his discharge
in like manner as persons committed on execution. The notice required
in such case to be given to the creditor, may be given to either of the
assessors or the collector by whom the party was committed. And tlie
assessors and collector, or any of thtni, may ajipear and do all things
which a creditor might do in case of arrest on execution.
Sect. 16. If sucli person is discharged, the collector sliall be liable to
pay the tax with the charges of imiuiscinment, unless he arrested and
committed the party within one year alter the tax was committed to
Chap. 12.] collection of taxes. 83
liiia to collect, or unless he is exonerated therefrom by the city, town, r.s.8, §r)0.
or parish, to which the tax is due. ' " ' '*"'
Sect. 17. A collector when resisted or impeded in the exercise of his Collectors may
office, may require any suitable person to aid him therein, and il" such p""a"ty.'"'''
per.son refuses to render such aid, he shall forfeit a sum not exceeding k. .s. .-.; § g.
ten dollars.
Sect. 18. When a person, after the assessment of a tax upon him, persons remov-
remo^-es out of the precinct of the collector without paying his tax, the ,'||.t/|,"'".1;';''.1^'^"
collector may demand jjayment thereof wherever such |jerson is found; without jiaying.
and in default of payment the collector may forthwitli proceed to col- isit.ai. *'
leet the tax by making a distress, or by commitment of such person to
the prison of the county where he is found ; or the collector may issue
his warrant to the sheriif of the county or his deputy, or to any con-
stable of the place, where such person is found, directing them to distrain
the projierty or take the body of such person, and to proceed therein in
like manner as required of collectors in like cases.
Sect. 19. When a person taxed removes as aforesaid, or dies, or Remedy ifper-
neglects to pay his tax for one year after it is committed to the collector, &°"f wftjlout"
or being an unmarried woman, marries, before jjayment of the tax, the I'i'yii'g-
collector may, in his own name, maintain an action of contract therefor iKi:.','3i2.
in like manner as for his own debt, and he may for that jnirpose in like /i'^j^^'J'^^
manner have a process of foreign attachment airainst any trustee of such as' Pick. 235.
person. ' '''^'■'''-
Sect. 20. When a tax is assessed upon the personal estate of a against exec-
deceased person, the collector may maintain an action of contract there- miu'Strators."
for in li's own name, as for his own debt, against the executor or admin- '^^l^' J.'s-
istrator; and if a tax is so assessed before the appointment of an issaJ-Tia!
executor or administrator, he may enforce it against the estate and its
representative after such appointment, in like manner as if the assess-
ment had been made subsequently thereto.
Sect. 21. When a person is taxed for real estate in his occxipation, against pcr-
but of which he is not the owner, the collector, after demand of pay- not owncrs'of
estate
them.
ment, may levy the tax by distress and sale of the cattle, sheep, horses, »'"> ""'/i' '
swine, or other stock or produce, of such estate, belonging to the owner u.s.v, §5 10, ir
thereof, which within nine months after such assessment is committed
to him shall be found upon the premises, in the same manner as if such
stock or produce were the property of the jjcrson so taxed ; but such
demand need not be made if the person on whom the ta.x is assessed
resided within the precinct of the collector at the 'time of the assessment,
and subsequently removes therefrom and remains absent three months.
Sect. 22. Taxes assessed on real estate .shall constitute a lien thereon Taxes to be
for two years after they are committed to the collector; and may with tate fm'tivo'^'
all incidental costs and expenses be levied by sale thereof if the tax is years, *c.
not paid within fourteen days after a demand of pajmient made either isss'asu, §i.
upon the person taxed or upon any person occupying the estate ; but .^ ^^^^- '^■
the collector may sell real estate for taxes after two years have elapsed,
unless the estate has been alienated in the mean time.
Sect. 23. Taxes reassessed on real estate shall constitute a lien reasscssod, to
thereon from the time they are committed to the collector, unless the Jfes,'*".' ""
estate has been alienated between the first and second assessments ; and i^^'-it us, §§ 1,2.
may be levied as pro\'ided in the preceding section.
Sect. 24. If a mortgagee of real estate, situated in the place of his Resident mort-
residence, previously to the assessment of a tax, gives written notice to f iTp'^^v'ifen tolw
the clerk of such place that he holds a mortgage thereon, with a descrij)- eaiied upon for
tion of the estate, the collector before proceeding to sell it for non-pay- ]i4|,^lfi<i, § i
ment of taxes shall demand payment of said taxes of the mortgagee, as
provided in section twenty-two.
Sect. 25. If a mortgagee or non-resident owner of real estate, pre- Wh™ non resi-
viously to the assessment of a tax, gives a written a\ithoiity to some 'i.-nt :.i.i>..intB
84
COLLECTION OF TAXES.
[Chap. 12.
attorney, de-
maml how
maclf.
K. S. 8, § 20.
1S4S, 100, § a.
When made,
collector to
wait two
months.
K. S. 8, § 21.
Affidavit of col-
lector, &c., evi-
dence of de-
maud ou attor-
ney.
E. S. 8, § 22.
•Sales of real es-
tate, how adver-
tised.
E. S. 8, § 24.
13 Gray, 77.
Contents of ad-
vertisement.
E. S. 8, § 3.5.
1848, 160, § 3.
4 Gush. 205.
7 Cush. 503.
Notices, how
posted.
E. S. 8, § 27.
1848, 100, § 4.
When name of
place has been
changed.
E. S. 8, § 20.
Affidavit of
postin;:,^ anil
publishinL^to be
evidence, it re-
corded.
E. S. 8, § 23.
Sale bj' auction
of sufficient, &c.
E. S. 8, §§ 38, 29.
13 Gray, 77.
Collector may
adjourn sale,
&c.
E. S. 8, § 30.
Deed to be given
to purchaser,
Bubject, &c.
inhabitant of the place as his attorney, to pay the taxes imposod on such
estate, and the authority is filed with, or recorded by, the clerk of the
place, the demand of payment shall be made upon such attorney before
the estate is sold ; otherwise, no demand need be made of payment of
taxes assessed on the real estate of non-resident owners.
Sect. 26. When a demand is made upon the attorney under the
preceding section, the collector shall not advertise the sale of the lands,
until two months from the time of such demand.
Sect. '21. The affidavit of a disinterested person, or the collector,
who makes a sale of land for the jjaymeiit of taxes, taken before a justice
of the peace and recorded by the clerk of the ])lace where the land lies,
before a sale is made, and stating the demand of payment of the tax,
the person of whom, and the time and manner in ■which, it was made,
shall be competent evidence of the demand.
Sect. 28. The collector shall give notice of the time and place of
sale of real estate taken for taxes, by an ad\ertisement thereof three
weeks successively in some newspaper of the county where the real
estate lies, if there is such newspaper, and if not, then in a newspaper
printed in an adjacent county; the last publication to be at least one
week before the time of sale.
Sect. 29. The advertisement shall contain a substantially accurate
description of the several rights, lots, or divisions, of the estate to be
sold, the amount of the tax assessed on each, the names of all owners
known to the collector, and the taxes assessed on their respective lands.
Sect. 30. The collector shall, three weeks before the s.ale, post a
notice similar to that required by the two preceding sections in some
convenient and public place in Ids precinct, and a like notice on the
premises by him advertised to be sold, if any part thereof is bounded
by a street, lane, court, or highway.
Sect. .31. When real estate to be sold nnder the pro^^sions of this
chapter, is situated in a place the name of which has been changed by
law within three years next preceding the sale, the collector shall in his
advertisement and notices of the sale designate such place by its former
and present name.
Sect. 32. The affidavit of a disinterested person, taken before a jus-
tice of the peace, of the posting and publishing notifications of the sale
of real estate by a collector or other officer for payment of taxes, made
upon one of the original advertisements, or a copy thereof, and filed
and recorded in the registry of deeds of the county or district where
the land lies, within six months after the sale, shall be competent evi-
dence of such notice.
Sect. 33. If the taxes are not paid, the collector, at the time and
place appointed for the sale, shall sell by public auction so much of the
real estate, or the rents and profits of the whole estate for such term of
time, as shall be sufficient to discharge the taxes and necessary interven-
ing charges ; or he may at his option sell the whole or any ]iart of the
land ; and after satisfying the taxes and charges, he shall upon demand
pay the residue of the proceeds of the sale, if any, to the owner of the
estate.
Sect. 34. The collector may adjourn his sale from day to day not
exceeding seven days in the whole ; and he shall give notice of every
such adjournment by a public declaration thereof, at the time and jilace
previously appointed for the sale.
Sect. 3.5. The collector shall execute and deliver to the purchaser a
deed of the I'eal estate, or rents and profits sold ; which deed shall state
the cause of sale, the price for which the estate or rents and jirofits were
sold, the name of the person on whom tlie demand for the tax was
made, the ]ilaces in the city or town where the notices were jiosted, the
newspaper in which the advertisement of such sale was published, and.
Chap. 12.] collection op taxes. 85
the jrlaec of residence of the grantee; and if the real estate has been
sold, shall convey, subject to the right of redemption provided forintlie wiiendeedto
following section, all the right and interest which the owner had therein ^l s^h™^'"/.'
at the time when the same was taken for his taxes. Such deed to be >*i8. i(>u,§.j.
valid sliall be recorded within thirty days from the day of sale.
Sect. 36. The owner of real estate sold for pa)'ment of taxes, or his owner may re-
lieirs or assigns, maj' within two years from the day of sale, redeem {'wo'viTarl'.'&c.
the estate sold, by paying or tendering to the pin-chaser, or his heirs or K.s.'s.sae.
assigns, the sum ])aid by him, witli ten per cent, interest and all neces- g^ § 40. ' "
snry intervening charges; and when the rents and profits are sold for
j)uyment of taxes, the same may be redeemed at any time within two
years in the manner jirovided for the redcmjition of rents and ]irofits
taken on execution. And in the following cases real estate so sold may
be redeemed, by any person having such title thereto that he might have
recovered the same if no such sale had been made, at any tune within
two years after he has actual notice of the sale : —
First. When no person is named in the tax list as the owner or oc-
cupant of the premises, they being taxed as belonging to persons
unknown ;
Second. Wlien the person who is named in said list is merely a
tenant or occupant of the premises, and not the rightftd owner thereof;
Third. When there is any error in the name of the person intended
to be taxed ;
Fourth. Mortgagees of record.
Sect. 37. If upon reasonable search the purchaser of real estate sold how rc-
for non-payment of taxes cannot be found in the place of which he is p5i'™ms^c™i-
describeil in the collectors deed as resident, the owner of the estate ""' i>» iound,
ma)' redeem it as provided in the ]>receding section, on paying to the Ws, lee, §§6.8.
treasurer of the place in which it is situated, the amount which he would
be required to jniy to the purchaser ; and the affidavit of auy disinter-
ested person of the making such search, taken before a justice of the
pe.ice and filed in tlie registry of deeds for the district or county in
which the land is situated, within ninety days from the com])letion
of the search, shall be comj)etent evidence of tlie facts therein stated.
Sect. 38. Such treasurer shall receive the money and give to the Duty of trcaj-
person paying it a certificate of such ]>aymcnt, specifying the estate on ^j^s^' ico, § 7.
which the tax was originally assessed. The certificate may be recorded
in the registry of deeds, with a note of reference from such record to
the collectors deed ; and, when so recorded, shall have the effect to re-
lease and discharge all right and title acquired under the collector's
deed. The treasurer shall hold all money received by him under the
preceding section, for the use and benefit of the persons entitled thereto;
and shall pay it over on reasonable demand.
Sect. 39. After proceedings have been commenced for the sale of Mortgag-ee may
real estate for a tax assessed thereon, and before the sale is made, the nfai ''Jtatc'in
holder of any mortgage thereon may pay such tax with all inten-ening '';^:!'t'".',! ,'^''?^''-
charges and expenses ; and when the owner of real estate for three .sco'§ 3(i.'
mouths after demand has neglected to pay such a tax, and the col-
lector has made demand therefor u]ion a holder of a mortgage thereon,
such holder may in like manner pay such tax, charges, and expenses.
Sect. 40. The holder of a mortgage, upon taking possession of real shall pay sucli
estate thereunder, shall be liable to pay all taxes due thereon and the JiJ.JJposSton.'
expenses of any sale for taxes that has been commenced or taken place; Eiititioii to deed
to be recovered of him in an action of contract by the collector or, isso, 239, §§ 1-3.
when a sale has taken place, by the purchaser; and upon tender by the See §30.
mortgagee to the purchaser, within the time jirovided for owners of
real estate to make tender in section thirty-six, of the sum paid by him,
with ten per cent, interest and all necessary intervening charges, such
purchaser shall at the expense of the mortgagee execute and deliver to
86
COLLECTION OF TAXES.
[Chap. 12.
Mortgagee enti-
tled to receipt
for such taxet*
paid to collec-
tor. May tack
Bame to mort-
TsSi, 239, §§ 1-3.
S. J. Court to
have equity
powers.
iSjii, 230, § 4.
10 Met. 101.
When tilx list,
&e., is commit-
ted to sheriff,
Ac.
U. S. 8, § 34.
Sheriff *s fees
lor collecting.
U. S. », § 35.
When treas-
urers are made
collectors, how
to proceed.
K. S. 8, § 36.
U. S. 15, § 61.
Collectors to
exhibit ac-
counts every
tivo months if
required.
K. S. 8, 5 45.
Penalty.
K. S. 8, § 46.
('oUectors to be
credited with
abatements, &c.
K. S. 8, § 43.
9 Met. 503.
Deficiency in
state or county
tax, how sup-
plied.
K. S. 8, § 42.
Same, when col
lectors neglect
to pay.
H- S. 8, § 38.
him a valid deed of assignment of all interest acquired by virtue of the
tax sale.
Sect. 41. For all sums paid to a collector by the holder of a mort-
gage under either of the two preceding sections, the collector shall
upon demand give him a receipt therefor, duly acknowledged ; and such
sums shall be added to and constitute part of the ])rincipal sum of the
mortgage ; and the mortgage shall not be redeemed, without the con-
sent in writing of the holder, until such sums and interest thereon are
paid; and such receipt recorded in the registry of deeds for the di.v'ulet
or county wliere the land lies, within thirty days from its date, shall be
notice to all persons of the payment of such sums and the lien upon the
estate therefor.
Sect. 42. In all cases of sale of real estate for the payment of
taxes assessed thereon, the supreme judicial court shall have equity
powers, if relief is sought within five years from the sale.
Sect. 43. When the tax list and warrant of tlie assessors is com-
mitted to the sheriff, or his deputy, he shall forthwith post in some
public place in the city or town assessed, an attested cojiy of said list
and warrant ; and sliall make no distress for a tax, till after thirty days
from tlie time of such posting.
Sect. 44. If a ])erson pays his tax on such list within said thirty
days, the officer shall receive for his fees five per cent, on the sum
assessed ; but if a tax remains unpaid after said thirty days, the officer
shall proceed to collect the same by distress or imprisonment,' in the
manner collectors are required to proceed in like cases. The officer
may also levy his fees for service and travel, in the collection of each
person's tax, as in other cases of distress and commitment.
Sect. 45. When the city council of a city or the inhabitants of a
town vote to appoint their treasurer a collector, he may issue his war-
rants to the sheriff of the county, or his deputy, or any of the con-
stables of the city or town, returnable in thirty days, requiring them to
collect any or all taxes due ; and such warrants shall be in substance
the same and confer like powers as warrants issued by assessors to col-
lectors.
Sect. 46. Every collector shall once in two months, if required,
exhibit to the mayor and aldenmen or selectmen, and where there are
no such officers, to the assessors, a true account of all moneys received
on the taxes committed to him, and produce the treasurer's receipts for
all money paid into the treasury by him.
Sect. 47. If a collector neglects so to exhibit his accounts, he shall
forfeit the sum of two and a half per cent, on the sums committed to
him for collection.
Sect. 48. The collector shall be credited with all sums abated
according to law, and with the amount of taxes assessed upon any per-
son committed to prison witliin one ye.ar from the receijit of tlie tax
list by the collector, and before paying his tax, and also with any sums
which the city or town may see fit to abate to him, due from persons
committed after the expii-ation of a year.
Sect. 49. If the collector fails to collect a tax, without his own de-
fault, and there is a deficiency of the amount due on a state or county
tax, such deficiency shall be sujiplied by him from the proceeds of the
collection of city or town taxes, if any in his hands ; and, if he have
none, by the city or town treasurer, on the written requisition of the
collector.
Sect. .50. If a collector of taxes neglects to pay, within the time
required by law, such sums of money as ought by him to be paid
to the state or county treasurer, the city or town by which such
collector was appointed, shall be liable for such sums, to be recovered
in an action of contract by such state or county treasurer respectively.
Chap. 12.] collection op taxes. 87
Sect. 51. If a collector noijlects season.ably to pay a state or county Remedy for coi-
tax committed to him, whereby the city or town is compelled to pay the kT s'.'^s! § «!^"''
same, or neglects seasonably to account for and pay in a city or town issa. 3i2.
tax committed to him, the city or town may recover the amount
thereof, with all damages sustained through such neglect, and interest,
by an action of contract, declaring on his official bond if any has been
given.
Sect. 52. If a collector becomes insane, or in the judgment of the if collector be-
selectmen otherwise unable to discharge his duty, or absconds, removes, l^'^'seiectinen
or in the judgment of the selectmen is about to remove, from the pilace, may remove
or refuses on demand to exhibit to the mayor and aldermen, or select- k'.'"'. 8, §40.
men, or assessors, his accounts of collections, as herein provided, the " ^^'^y^ '^o.
selectmen may remove him from office and appoint another collector as
ill ease of the death of the collector.
Seit. 53. If a collector dies before completing the collection of a Tax list of de-
tax committed to him, the selectmen may appoint some suitable person orhmv com-*"
to com]ilete the collection, who shall receive a reasonable compensation, pieted.
to be |i:iid by the town, and they may commit the same tax list to him, /ector!"^"'' ™'
with their warrant, accordingly; and when a temporary collector is }*-^-|.'5 3^-
a|ipoiiited by the selectmen, the assessors shall commit the tax list to i Met. 524.
him with their warrant, and he shall have the same powers and be sub- * *'■"''>■' ^''•
ject to the same duties and liabilities as other collectors.
Sect. 54. In ease of the death or removal from office of a collector, if collector
his executors or administrators, and all other persons, into whose hands blfdeUvered'to"
anj' of his unsettled tax lists may come, shall forthwith deliver the same selectmen,
to the selectmen. TMet-^ls!'"
Sect. 55. Collectors shall be paid such compensation for their ser- Compensation
vices as their cities or towns shall determine. B'^'aHf'^Ki-'''
K. s. 8, § 4?.
EECOVERY OF TAXES COLLECTED.
Sect. 56. No tax paid to a collector shall be recovered back, unless Taxes paid to
it appears that it was paid after an arrest of the person paying it, a levy recovereii'^back
upon his goods, a notice of sale of his real estate, or a protest by him isso.iis, §§3,4!
in writing; and the damages awarded in a suit or process based upon °'=^ Ch. ii, § 54.
any error or illegality in the assessment or apportionment of a tax, shall
not be greater than the excess of the tax above the amount for which
the iilaintift' was liable to be taxed. And no sale, contract, or levy,
shall be avoided by reason of any such error or irregularity.
88
MILITIA.
[Chap. 18.
TITLE ly.
CHAPTEK 13.
OF THE MILITIA.
Section
1. PereonB to be enrolled.
2. list of to be prepared by assesRora and
given to town clerks ; and returns to be
made to adjutant-general, &c.
3. Penalty for not giving information to as-
sessors.
4. Militia enrolled not liable to active duty,
except, &c.
5. how drafted upon order of commander-
in-chief.
6. Penalty upon soldiers for not answering
summons when drafted.
7. Militia in active service, how organized,
&c. To be furnished by state. Excep-
tion.
8. Towns to furnish and deposit ammunition.
EXEMPTIONS.
9. Absolute exempts.
10. Exempts by producing certificates.
11. Enginemen, how exempted from duty.
12. Sokiiers having bodily infirmity, how ex-
empted from duty.
VOLUNTEER SHLITIA.
13. Active militia to consist of volunteers.
14. Number of companies, how apportioned
and raised. Number of men.
15. Quota, how completed.
16. Term of duty.
17. Election of officers.
18. What constitutes a legal enlistment.
19. To be arranged into divisions, &c., and
numbered.
20. Cavalry and artillery companies inconven-
iently situated.
21. Regiments, &c., of cavalry.
22. Companies attached to divisions, &c., but
not to regiments.
23. Regimental and battalion bands.
24. Companies may be disbanded in certain
cases.
25. in certain other oases.
26. Discharge of soldiers.
OFFICERS, — A PPOITf T:\rENT, ELECTION, QUALI-
FICATION, AND DISCHARGE OF.
27. General staff officers, &c.
28. When office of niiartermaster-general, ma-
jor-general, .tc, is vacant, &c.
Section
29. Companies without officers, how com-
maniled.
30. refusing or neglecting to elect, how com-
manded.
31. Officers of the hne, election of.
32. StaflT officers, appointment of.
33. Non-commissioned stafl".
34. Duties of clerk, how performed when the
office is vacant, or clerk absent, &c. Rec-
ords, how kept — to be evidence.
35. Officers, how commissioned.
36. Persons ineligible to office, when elected,
comm!iuder-iu-chief to fill vacancy.
37. Rank of officers, how determined. Com-
mission to express date of appointment.
38. Loss of commission, how supplied.
39. Major*general to be notified, &c.
40. to order elections of all commissioned of-
ficers.
41. Notice of elections. Penalty.
42. Presiding officer at elections.
43. Who to preside. Record and returns.
44. Who to be deemed elected ; elections may
be adjourned ; not legal unless electors are
notified. Roster and rolls to be produced.
45. When electors fail to elect. Returns of
elections and refusals. New election or-
dered, unless, <Src.
46. Elections in companies without officers.
47. Acceptance of an office shall vacate one pre-
viously held.
48. Commissions, how transmitted.
49. When persons refuse to accept, new elec-
tion to be ordered.
50. Officers, Ac, not to treat with intoxicating
liquors.
5'. Persons on duty privileged from arrest.
52. Oath of commissioned officers, — bow ad-
ministered and certified. Form of certifi-
cate.
53. Clerk's oath. Certificate.
54. Discharge of officers upon their own re-
quest.
55. Request for discharge between Slay and
November not to be approved, unless, &c.
50. If officer refuse to approve, commander-in-
chief may discharge.
57. Officers not to be discharged, except, &c.
58. Discharge by appointment in U. S. army.
Penalty.
50. StatT commissions.
60. Officers under arrest.
61. Non-commissioned officer.
Chap. 13.]
MILITIA.
89
Section
ADJUTANT-GENERAL.
Adjutant-youeral.
to give bond.
Balary of. Clerk, &c.
to distribute geueral orders, &c., and at-
tend revicwe.
to furnish blank rolls and returns, and
blanks for company orders, &c.
to make abstracts of returns.
to make annual returns in duplicate.
to certify rolls, and transmit to towns.
to submit to auditor, roll of officers en-
titled to pay.
to submit account of expenditures.
to distribute arms, &c.
Field pieces to remain in possession of
towns, &c.
ARMS, EQUIPMENTS, EQUIPAGE, ETC.
What uniform to be provided.
Uniform, &c., exempt from attachment.
Camp equipage to be furnished to com-
manders of divisions, &c.
Colors to be furnished. Who responsible.
Arms and equipments to be furnished.
Commissioned officers responsible for
equipments.
how relieved from responsibility, in case
of discharge, &c.
, Arms, &c., to be received from disbanded
company.
. Instruments of music furnished. Com-
mander of brigade to draw order. Who
responsible.
, Cannon, ammunition, &c., to be furnished
to artillery. When in state of war, &c.,
powder, &c., furnished. Who to be account-
able.
, When company ordered to march out of
town, &c. Expenses of battery, how paid.
, Scott's Tactics, &c., to be furnished to offi-
cers.
. Military stores may be sold, &c.
. Committee of legislature to visit arsenal
and report.
ARMORIES.
88. Armories, &c., to be provided by select-
men.
89. rent of, &c., to be certified by selectmen,
&c.
90. Adjutant-general to audit, &c., claims for
rent. Payment.
91. Penalty for false certificate.
92. Armories, &c., how examined.
ORDERS AND NOTIFICATIONS.
93. Orders, by whom distributed.
94. When companies ordered out, how to be
notified.
95. Notifications, requisites and times of. Ver-
bal notice on parade. Notifications, how
proved.
90. Company without officers, how notified.
Penalty.
97. Orders, &c., to be recorded.
DISCIPLINE, TRAININGS, INSPECTION, AND
CAMP DUTY.
0«. System of discipline, &c.
99. Commanders of regiments, Ac, to order el-
ementary drills. Penalty for non-attend-
ance.
8* 12
Section
100. Encampments. Orders for, how issued.
Place of.
101. Distance companies to march. Parade of
bodies of troops larger than brigade.
102. Troops to be exercised, inspected, &c.
103. Company roll calls, how made.
104. Kank of corps. Senior officer to command.
105. Companies without officers, how com-
manded.
lOG. Brigade-majors to attend reviews, inspect
arms, &c.
107. Officers and soldiers may drill in camp, &c.
108. Bounds of parade may be fixed. Punish-
ment for intrusion.
109. Persons not holden to do duty on days of
certain elections, except, &c. Liability of
officers.
110. Commander-in-chief may order out militia
for escort, &c. Music.
111. Voluntary parades not prohibited. Arti-
cles of agreement adopted by company bind-
ing. Remedy for breach thereof.
112. Penalty for deficiency inarms, &c.
113. Loaded arms not to be brought on parade,
&c.
114. Contempt, disorderly conduct, &c., how
punished.
115. Quitting guard, &c., how punished.
116. Soldiers may be put under guard. Non-
commissioned officer may be reduced to
ranks.
117. Penalties on soldiers in companies without
officers.
ROSTERS, ORDERLY BOOKS, ROLLS, AND RE-
TURNS.
118. Kosters and orderly book, by whom kept,
119. Company rolls, how kept. To be revised
and corrected.
120. Company orderly book, how kept. Delin-
quencies, fines, &c., to be recorded.
121. Commanders of companies to make dupli-
cate returns in ten days. Keturns of divis-
ionary corps, Ac, to whom made.
122. alphabetical pay rolls of companies with-
in ten days after camp duty.
123. Penalty for neglect, or false return, &c.
124. Keturns by master of regimental or bat-
talion bund.
125. Commanders of regiments, &c., to make re-
turns of offieers. Penalties.
120. Brigade nuyors to make returns of brig-
ade, and field and staff officers, &c. Pen-
alty.
127. Commanders of brigade to make returns to
commanders of division. Commanders of
division to make returns to adjutant-gen-
eral. Penalties.
128. Commanders of division to make out roll
of officers. Penalty.
CALLING OUT THE MILITIA IN CASE OF WAR,
INVASION, INSURRECTION, TUMULT, OR RIOT.
129. Militia, how called out in case of invasion,
&c. When commander of division may or-
der out troops.
130. Drafts. Officers detailed.
131. If company without officers is called out,
officer to be detailed.
132. Penalty on soldiers neglecting to appear,
Ac. Soldiers to take provisions.
133. Selectmen, &c., to provide carriages, &c.,
in certain cases. Penalty. Officer respon-
sible.
90
MILITIA.
[Chap. 13.
Section
134. Troops, how ordered out in case of riot,
&c. Form of requisitiou, &c.
135. Penalties for disobedience, &c.
136. Troops to appear armed, &c
COMPENSATION.
137. Pay of general, field, and staff ofEcerp.
138. Pay of inspectors, &e.
139. of members of ('ompanies, and bands,
how computed, dishurst-d, &c.
140. forfeited for dulicieucy in returns. Not
to be received unless full duty is performed,
except, &c.
141. Personal service requisite to compensation.
Excuses not to entitle to.
142. Inspector-general, expenses.
143. Pay for travel in attending elementary
drills. How paid.
144. of detachment on special duty.
145. for travel in attending elections.
146. of members of courts martial, &c.
147. Relief to soldiers or their families.
14S. Pay of troops in actual sei-vice, &c.
149. Milit-ary accounts, &c., how examined, cer-
tified, and paid.
EXCUSES.
150. Excuses to be made within twenty days,
unless, &c. Clerks to be informed of ex-
cuses.
151. Deficiencies in equipments.
152. Certain conditional exemptions not to be
excuses, uuless, &c.
PROSECUTION FOR FINES.
153. Fines of members of vohmteer companies.
154. Prosecution for fines — form of informa-
tion— summons to be issued within nine
months, giving seven days' notice — form
of summons issued by a justice — form of
summuus by police court — defendant may
plead not guilty — what shall be sufficient
for complainant to prove — complainant to
show certificate of appointment and quali-
fication—to produce roll, and prove en-
listment — to produce order to notify meet-
ing— when order is required to be given
by superior officer — offence to be proved
— burden of proof — secondary evidence,
when received — clerk, &c., may be witness
— exemptious for infirmity, how proved
certificate of surgeon of regiment, evi-
dence— commanding officer may be wit^
ness — execution, when issued — form of
execution — amendments — continuance —
when comphiiuaut is not liable for costs —
appeals not allowed, except — complaints
by otiier officer, bow prosecuted.
155. Imprisonment on execution.
156. Money collected for fines, how disposed of.
COURTS MARTI.VL.
157. Complaints on which courts martial are
ordered — triid must be within a year — by
whom ch.'irj;es to he preferred.
158. Respondent to be arrested — copy of
charges, &c., to be delivered — court may
adjourn.
159. Courts martiaI,of whom to consist — when
held — how often — general, by whom ap-
pointed, and to try whom — division, by
whom appointed, and to try whom — mem-
bers of, how and by whom detailed — provis-
aion in case any offit-er detailed is unable to
serve— no one superior in rank to the presi-
dent, to be detailed — officers ordered to
Section
detail, to make return — judge-advocate to
attend — when unable to attend — if presi-
dent does not attend — if sufficient number
of members do not attend, or are not quali-
fied — if judge-advocate or marshal is absent
— person acting as judge-advocate, to con-
tinue during trial — rank of officers — court
may adjourn, when.
160. Jlembers to be sworn — oath of president
and members — oath of judge-advocate —
challenges, how and when made, and by
whom tried — certain causes of challenge,
when waived — if accused is absent, or
withdraws — witnesses sununoned, must
appear — penalty — oath of witnesses — evi-
dence of default in returns — copies of docu-
ments, &c., how authenticated — all pro-
ceedings and evidence to be in writing —
votes, how taken — two-thirds required to
convict — sentence — courts martial author-
ized to preserve order — records, how au-
thenticated and transmitted — approval or
disapproval of sentence — pay roll — copies
to be furnished — judgment of disqualifica-
tion may be reversed.
161. What offences may be tried by court mar-
tial.
162. Fines imposed by court martial. How
prosecuted. Costs against judge-advocate,
how paid.
boards of officers.
163. Boards to settle military questions.
general and division courts of djqdtrt.
164. Courts of inquiry, how ordered, &c. — va-
cancies — oath of president and members —
oath of judge-advocate — witnesses — judge-
advocate to attend courts of inquiry.
165. No guard, unless.
RULES and articles FOR GOVERNING THE
militia in actual SERVICE.
166. "Who shall be taken to be soldiers.
167. Offences punished by death or otherwise.
Art. i. Sedition.
ii. Not suppressing sedition, nor giving
information of it.
iii. Desertion.
iv. Advising desertion.
V. Misbeliaviug before an enemy, &c.
vi. Abandoning post, &c.
vii. Slaking known or falsifying watch-
word,
viii. Forcing safeguard.
ix. Harboring or relieving an enemy.
x. Corresponding with an enemy.
xi. Compelling commander to surrender,
xii. Sentence of death.
168. Offences punished by cashiering, &c.
Art. xiii. Using traitorous words,
xiv. Neglecting to march, &c.
XV. Disobedience of orders, &c.
xvi. Provocation to fight a duel.
xvii. Giving or accepting challenge.
xviii. Upbraiding, &c.
xix- Suffering person to pass guard to
fight a duel — not arresting per-
sons about to fight.
XX. Drunkenness on duty,
xxi. Escaping from arrest.
xxii. Behaving scandalously.
xxiil. Embezzling, or committing fraud.
xxiv. Selling or wasting stores.
xxv. Not delivering offender to civil au-
thority.
Chap. 13.]
MILITIA — ENROLMENT.
91
Sectiov
1C.9. ollViiees punished at discretion of court
lli:ini.il.
Art.x.x\i. Preceding' offences Trheu committed
by soldiers,
xxvii. Disrespect to commanding officer,
xxviii. Disobedience.
xxix. Violence to au officer.
XXX. Resisting an officer who attempts to
quell a quarrel.
xxxi. Not keeping order,redre8sing abases,
protecting citizens.
xxxii. Being one mile from camp, &c.
xxxiii. lifiug ;tbsent without leave.
xxxiv. Nut retiring to quai-ters.
XXXV. Not repairing to rendezvous, unless,
&c.
xxxvi. Sentinel sleeping, &c.
xxxvii. Occasioning false alanjis.
xxxviii. Leaving platoon, &c.
xjodx. Violcuee to persons bringing pro-
visions.
xl. Disturbing courts martial,
xli. Uefueing to receive prisoner,
xlii- Releasing prisoner,
xhii. Not reporting prisoners.
xliv. Crimes not capital, and not ejieci-
fied.
xlv. Officers absent from di\Tne senice,
&c.
170. Fines.
Art. xlvi. Soldiers absent, ic, during divine
service,
xlvii. Profanity by officers,
xlviii. Profanity by soldiers,
xlix. Fines by court martial.
1. Fines stopped out of pay.
171. General rules.
Art, li. Officer wronged by colonel.
lii. Officer or soldier wronged by cap-
tain.
liii. Public stores secured.
Section
General rules.
liv. CUdest officer to command, without
rcgjird to corps.
Iv. Offenders against citizens to be deliv-
ered to civil authority.
Ivi. Property of deceased persons se-
cured.
Ivii. Pay and rations.
172. Courts martial in actual sennce, &c.
Art. Iviii. Arrests.
lix. Imprisonment before trial.
Ix. General and division courts martial,
by whom ordered.
Ixi. Of whom general court martial shall
consist.
Ixii. Division and reg^imental courts mar-
tial.
Ixiii. Power of regimental courts martial.
Ixiv. Ptfst and detachment courts martial.
Ixv. Courts martial in particular corps.
Ixvi. IJank of members.
Ixvii. Tinxe of holding court martial.
Ixviii. Rank in court martial.
Ixix. Judge-advoc4ite.
Ixx. Oath of president and members —
oath of judge -advocate.
Lvxi. ■Witnesses refusing to appear and tes-
tify.
Ixxii. Oath of witnesses.
Ixxiii. \'ot<?s iu court martial, two-thirda
necessary to capital sentence.
l.Kxiv. Proceedings to be transmitted to
commanding officer.
Ixxv. Pay may be suspended.
Ix.vvi. Pardon and mitigation of punish-
ment.
173. Construction of the words "soldier" and
" battalion."
174. Penalty on civil officers.
175. " Selectmen " to include " mayor and al-
dermen."
Section 1. Every able-boclied white male citizen, resident within this
state, of t'no age of eighteen years, ami under the age of forty-five years,
excepting persons enlisted into volunteer coiniianies, persons exempted
by the following sections, idiots, lunatics, cdiiinion drunkards, vagabonds,
paujier.s, and persons convicted of any infamous crime, shall be enrolled
in the luilitia. Persons so convicted after enrolment shall forthwith
be disenrolk'il; and in all cases of doubt res]iecting the age of a person
enrolled, the burden of proof shall be u])on him.
Sect. 2. Assessors shall annually in May or June make a list of per-
sons living within their respective limits liable to enrolment, and place a
certified copy thereof in the hands of the clerks of their respective places,
who shall record it in the records of their city or towni, and annually in
May, June, or July transmit returns of the militia thus enrolled to the
adjutant-general.
Sect. 3. Keepers of taverns or boarding-houses, and masters and
mistresses of dwelling-houses shall, upon application of the assessors
witliin whose bounds their houses are situated, or of jiersons acting
under them, give information of the names of persons residing in their
houses liable to enrolment or to do military duty: and every such
person .shall, upon like application, give his name and age ; and if
such kccjier, master, mistress, or person, refuses to give such informa-
tion, or gives false infomiation, such keejier, master, or mistress shall
forfeit and pay twenty dollars, and such person shall forfeit and pay
twelve dollars, to be recovered on complaint of either of the assess-
ors.
Persons to be
enrolled.
K. S. 12, §§ 5-10,
ISIO, 92, 1 1.
1841 lOfi, § 7.
v. S. Statutes,
1702, 33.
1 Pick. IW.
3 Pick. 202, 50«.
15 Pick. 7.
21 Pick. S.'iO.
22 Pick. 571.
Zi Pick. 54.
Assessors to
prepare list of,
Ac, and clerks
to make re-
turns, &c.
1N40, 92, §§ 3, 4.
1S42, 93, § 7.
Penalty for not
giving informa-
tion to assess-
ors.
1S40, 92, § 2.
10 Mass. 36.
92
MILITIA — EXEMPTIONS.
[Chap. 13.
Jlilitia enrolled
not liable to ac-
tive duty, ex-
cept, &c.
R. S. 12, § 134.
1840,92, §§0,11.
how drafted
upon order of
conimauder-ia-
chief.
1840, 92, § 8.
Penalty upon
Boldiers for not
anawering^ sum-
mons when
drafted.
1840, 92, § 9.
Militia in active
service, how or-
ganized, &c. To
be furnished by
state. Excep-
tion.
K. S. 12, §§ 11,
.3(1, 129.
lS.1li, 4, § 2.
1840, 92, §§ 5-7.
11 Mass. .ISO.
It) Mass. 52^1.
4 I'ick. 25.
To%vns to fur-
nish iind depos-
it ammunition.
li. S. 12, § 108.
1837, 240, § 10.
Sect. 4. The enrolled militia shall be subject to no active duty
except in case of war, invasion, the prevention of invasion, the supjires-
sion of riots, and to aid civil officers in the execution of the laws of the
commonwealth ; in which cases the commander-in-chief shall onler
out for actual service, by draft or otherwise, as many of the militia as
necessity demands.
Sect. 5. The order of the commander-in-chief may be directed to
the mayor and aldermen of cities or to the selectmen of towns, who shall
thereupon appoint a time and place of parade for the militia, in their
city or town, and order them to appear at the time and place, either by
leaving a written notice, or orally, and then and there proceed to draft
as many thereof, or accept as many volunteers, as is required by the
order of the commander-in-cliief ; and shall forthwith notify the com-
mander-in-chief that they have performed such duty.
Sect. 6. Every soldier ordered out, or who volunteers, or is de-
tached, or drafted, who does not appear at the time and place desig-
nated by the mayor and aldermen, or selectmen, or who lias not some
.able-bodied and proper substitute, at such time and place, or does not pay
to such mayor and aldermen, or selectmen, for the use of the common-
wealth, the sum of seventy-five dollars, within twenty-four hours from
such time, shall be taken to be a soldier absent without leave, and dealt
with accordingly.
Sect. 7. When the miUtia are ordered out or have voluntered for
and wliile they are in actual service, as specified in section four, they
shall be organized by the commander-in-chief with the advice of the
council, into companies, battalions, regiments, brig.ades, and divisions,
[which companies, b.attalions, regiments, brigades, and divisions,] shall be
numbered and record thereof made in the office of the adjutant-general ;
and shall be officered, governed, and trained, according to the laws of this
state and the United States ; and the state shall furnish arms and equip-
ments for each non-commissioned officer and private, and pay them until
their term of service expires ; and when troops are in the field i'or such
purposes, the senior officer of the troo])s jiresent shall command until the
commander-in-chief or some officer detailed by him takes command.
Each commissioned officer shall provide himself with a sword or
hanger.
Sect. 8. When the commander-in-chief deems it necessary, he shall
require cities and towns to provide, in some suitable place therein,
sixty-four pounds of powder, one hundred pounds of musket and rifle
balls, and also tliree copper, iron, or tin camp kettles for every sixty-four
soldiers enrolled in said town, and the same jjroportion for a greater or
less number, and to keep the same until such requirement is revoked.
Every place neglecting to comply with such requisition shall forfeit and
pay not less than twenty nor more than five hundred dollars.
Absolute ex-
empts.
K. .S. 12, § 1.
1838, 138.
1840, 92, § 1.
1835, +19.
ims, 93, § 2.
1859, 190.
IT. S. Statutes,
1800. 415, § 4.
1810, 37, § 33.
ISIli, 270, § 34.
4 Mass. 239.
13 .Mass. 3 1(1.
14 .Mass. 394.
17 Mass. 49.
1 Pick. 201.
2 Pick. 597.
23 Pick. 208.
EXEMPTIONS.
Sect. 9. In .addition to the following pereons, absolutely exempted
from enrolment in the militia by the laws of the United States, viz. : —
The vice-president of the United States ;
Tlie officers, judicial and executive, of the government of the United
States ;
The members of both houses of congress and their respective officers ;
custom house officers and their clerks ; inspectors of exports ; pilots, and
mariners employed in the sea-service of a citizen or merchant within the
United States ;
Postmasters, assistant-postmasters, and their clerks, post officers, post
riders, and stage drivers, in the care and conveyance of the mail of the
United States ; ferrymen employed at any ferry on the post road ; the
Chap. 13.] militia — exemptions. 93
artificers and workmen in the United States annoiy at Springfield and
tlie arsenal at Watertowu;
The ])ersons hereinafter mentioned, shall also be absolutely exempted Absolute ex-
from enrolment, viz. : — '"''' *"
Justices of courts of record; judges and registers of probate and insol-
vency ; registers of deeds and slieritl's ;
Otiicerswho have held or may hold, for a jicriod of five years, com-
missions in the army or navy of the United States ;
Officers who ha-\'e held, for a jicriod of five years, commissions in the
militia of this or any other state of the United States; or who have
been su]ierseded and discharged ; or who held commissions in any corps
at the time of its disbandment ;
Stall' otiicers heretofore exempted, and whose offices shall become
vacant by the provisions of section fifty-nine ;
Ministers of the gospel;
Tlie suj)erintendents, officers, and assistants, employed in or about
either of the state hospitals, state almshouses, state prison, jails, or
houses of correction ; keepers of light-houses, and conductors and en-
gine drivers of railroad trains.
Sect. 10. Every person of either of the religious denominations of Exempts by
quakers or shakers, who, on or before the first Tuesday in May, an- {'j™^?eg"^ '*''"
nually, jiroduces to the assessors of the city or town in which he k. s. 12, § 2. ^
resides, a certificate, signed by two or more of the elders or overseers, ksji' ioc, §7.'"
(as the case may be,) and countersigned by the clerk, of the society with j; Mass. 441.
which he meets for public religious worshi]), shall be exempted from see § 152.
enrolment. The certificate shall be in form as follows : —
We, the subscribers, of the society of people called , in the town of ,
in the county of do hereby certify that is a member of our
society, and that he frequently and usually attends religious worship with said society,
and we believe he is conscientiously scrupulous of bearing arms.
A. B. ) Elders or overseers,
C. D. 5 (j^^ the case may be.)
E. F., Clerk.
Sect. 11. Enginemen, or members of the fire department in a city Enginemen,
or town, shall be exempted from military duty by forthwith filing 'froraXty.^'^'*
with the assessors of the city or town in which they reside, a certificate it|- 5J'|~-,
that they are enginemen or members of the fire department as afore- 14 jiass'. 374.'
said, signed by the mayor and aldermen of such city, or the selectmen Ig^'t'^jj;'''
of such town ; but when a member of a volunteer company is, after his
enlistment, appointed an engineman or member of the fire de])artment,
it shall not vacate his enlistment, but during its continuance shall
exempt him from duty.
Sect. 12. Every non-commi.ssioned officer or private having bodily soldiers having
infimiit}', may be exempted from military duty, if he obtains from the J'yjjj^^""™'"
surgeon or surgeon's mate of the regiment, battalion, or detached com- empted from
pan}-, to which he belongs, (or, if there are no such officers commis- {"_ |.' 12^ § 2.
sioned in such regiment, battalion, or coni])any, then from some res])ec- J JJ«|s. su
table physician living within the bounds of the same,) a certificate that n Mass. 430,
he is unable to do military duty, on account of bodily infirmity, the fj^ijaes. 290.
nature of which shall be described in such certificate; and the captain 3Pic^.:is8.
or commanding officer of his company ma}-, on the back of the certifi- gee § 152. '
cate, discharge the non-commissioned officer or jirivate named therein,
from performing military duty, for a term of time which he judges
reasonable, not exceeding one year; which certificate, when counter-
sigueil by the colonel or commanding officer of said regiment, battalion,
or company, shall for the time specified exempt him from military duty,
except attendance at the election of officers. If such non-commis-
sioned officer or private, having obtained such certificate, is refused
a discharge, he may apply to the commanding officer of the brigade,
who may discharge him from military duty for such time, not exceed-
94
MILITIA — VOLUNTEER.
[Chap. 13.
ing one year, as he judges reasonable, by indorsing the same upon the
sui'geon's certificate.
Active militia
to consist of
volunteers.
1S40, 92, § 11.
Number of com-
panies, bow ap-
portioned and
raised. Num-
ber of men.
E. S. 12, § 21.
18-10, 92, §§ 12,
].■!, 18.
1843, 84, § 4.
1852, 1(M, § 5.
1S53, 174,§§5,r.
ISoS, 106, §§ 4, 5.
6.
See § 132.
Quota how
completed.
1N4I), 92, § 30.
1843, 84, § 3.
Term of duty
five years.
1840, 92, § 17.
4 Mass. 55().
8 Mass. 274.
11 Mass. 239.
13 Mass. 491.
3 Pick. 220, 204.
6 Piclc. 431.
11 Piclt.2ia.
Election of offi-
cers.
1840, 92, § in.
1858, 100, § 4.
TVhat consti-
tutes a lejj^al en-
listment.
Militia to be ar-
ranged into di-
visions, &c., and
numbered.
11. S. 12, § 11.
1830, 4, § 2.
1840, 92, § in.
11 Mass. 382.
16 Mass. 5£i.
4 Piolt. 25.
Cavalry and ar-
tillery (•onii)a-
uifM, incdinen-
icntiv situated.
184(l,'92, § 10.
1854, 11, § 1.
See § 27.
Regiments, &c.,
of cavalrv.
K. S. 12, § 14.
Companies at-
tacked to divis-
VOLUNTEEE IfELITIA.
Sect. 13. The active militia shrill be composed of volunteers ; and
in case of war, invasion, the prevention of invasion, the suppression of
riots, and to aid civil officers in the execution of the laws of the com-
monwealth, shall first be ordered into service.
Sect. 14. The number of [«Mc/i] companies shall not exceed one hun-
dred and twenty, and shall be apjjortioned among the counties according
to population, but retaining the volunteer companies with their officers
now organized. Petitions for organizing companies of foot artillery
may be granted by the coinmander-in-chief with advice of the council,
for organizing other companies, by the commander-in-chief or by the
mayor and aldermen or selectmen by his permission. Companies of
cavalry shall be limited to eighty jirivates and a saddler and farrier;
companies of foot artillery, to forty-eight cannoneers, twenty-four
drivers, and a saddler and farrier; the cadet companies of the first and
second divisions, to one hundred, and companies of infantry and rifie-
men to fifty, ))rivates. No new company shall be organized if thereby
the whole force will exceed five thousand officers and men.
Sect. 15. When a county does not raise its quota, the commnndcr-
in-chief may grant petitions to complete the prescribed number in other
counties.
Sect. 16. Non-commissioned officers and soldiers of volunteer com-
panies shall do duty therein for five years, unless disability aiter enlist-
ment incapacitates them to perform such duty, or they are regularly dis-
charged by the proper officer.
Sect. 17. No election of officers shall be ordered in a company here-
after organized unless at least fifty men have been enlisted therein.
Upon the enlistment of that number, and notification given to the com-
mander-in-chief by one or more of the jietitioners for the comjiany,
attested by the mayor and aldermen or selectmen, an election of officers
may be ordered ; and if there is no officer of the volunteer militia conven-
iently located to preside at such election, the commander-in-chief may
issue an order for that purpose, to one or more of the selectmen or
mayor and aldermen of the place where a majority of the petitioners
reside.
Sect. 18. After the organization of a comp.any, recruits shall sign
their names in a book of enlistment kept by the company for the pur-
pose, which signing shall be a legal enlistment.
Sect. 19. The commander-in-chief may arrange the volunteer militia,
when they exist in sufficient numbers and are conveniently located, into
divisions, brigades, regiments, battalions, and companies, conformably to
the laws of the United States, and make such alterations as from time
to time may be necessary. Each division, brigade, regiment, liattalion,
and company, shall be numbered at the formation thereof, and a record
thereof made in the office of the adjutant-general.
Sect. 20. Companies of cavalry and foot artillery inconveniently
located for such organization may be attached to such brigades as the
commander-in-chief shall order. Other comjianies inconveniently situ-
ated shall remain under their commanders, subject to the orders of the
commander-in-chief through the commander of the nearest regiment; to
whom such commanders shall make their annual returns.
Sect. 21. Squadrons of cavalry shall consist of two, and regiments,
of not less than four, companies.
Sect. 22. Companies attached to divisions or brigades, and not to
regiments, shall until otherwise organized be subject to the immediate
[Chap. 13.] militia — officers. 95
orders of the commanders of such divisions or brigades ; who shall receive ions, &c., but
tlie returns and orders, have the authority, and i)erforni the duties, with JJ,"' *,°."^'
regard to such companies, which are prescribed for the commanders of RS. i2, §15.
regiments and battahons with regard to their companies.
Sect. 23. The commander of a regiment or battahon may raise by Rocrimentai and
voluntary enlistment, and warrant and organize, within the limits of his J'^,^!!™ s*""*"'
command, to be under his direction and command at encampments, a iMrtiaisj§4.
band of musicians, not to exceed including a master and deputy-master, "^'' '^' ^ '''
eighteen for a regiment and eight for a battalion. Tlie master, and in
his absence the deputy-master, shall teach and command the band and
issue all orders directed by such commander. Each member of the
band shall keep himself provided with such uniform as may be directed
by the commander-in-chief, and such instrument as the commander of
his regiment or battalion prescribes, under ])enalty for each neglect,
or deficiency, or for misconduct, of dismissal from the band by such
commander, and of not less than ten nor more than twenty dollars, to
be recovered on complaint by the brigade-major.
Sect. 24. If it appears to the commander-in-chief, on representation Companies may
of the commanding officer of a division or l^rigade, that a company of ^rtafnrascs. *"
militia has failed to comply with the requisitions of the law in matters is^s. 2«, § 9.
of uniform, equipment, and discipline, so that it is ineaiiaeitated to dis-
charge the duties required of it, such company may be disbanded by the
commander-in-chief.
Sect. 25. If a company is destitute of commissioned officers, and, in certain
having been twice ordered to fill vacancies, neglects or refuses to till iVs.n^tl'w,
them, or is reduced to a less number than thirty-two privates and so ?'':„ , , .
remams lor six consecutive months, or wlien sucli comjiany appears ims, 100, § 3.
from a return made to the adjutant-general to be reduced below thirty-
two privates, present and doing duty at the time for which such return
is made, such company may be forthwith disbanded by the coimuauder-
in-chief.
Sect. 2G. The commander of a regiment or battalion may, upon the Dischar^of
written application of the commander of a comj)any in his regiment or i^''3'(;7 50.
battalion, accompanied by a request in writing signed by a non-commis-
sioned officer or private, discharge such officer or jirivate fi-oni the com-
pany; and the commander of a company unattached may, upon appli-
cation in writing signed by a member thereof, discharge such member;
and commanding officers of regiments, battalions, or detached companies,
may discharge non-commisioned officers or privates upon the request
by vote of a majority of the active members of the company.
OFFICERS APPOrSTMEXT, ELECTION, QUALIFICATION, AND DISCHARGE OF.
Sect. 27. The officers and non-commissioned officers of the militia General staffer-
shall be as follows : b!'s!'i2,§22,23.
A commander-in-chief. i&«)> 92' § is.
An adjutant-general, who shall be the inspector-general of the j|^' ""*' '^ '"'
militia, and a quartennaster-general, each with the rank of briffadier- }*?^ H^'^S,*'
1 ^ ^ ' ^ 1S54, 11, § 2.
general. isos, im, § 5.
Aids to the commander-in-chief with the rank of lieutenant-colonel, ^i^^^'j',''!.' '***'
not exceeding four in number. 9 Pick. 41. _
To each division there shall be one major-general, one di%'ision- i»pJck.'84T
inspector with the rank of Ueutenant-colonel, two aids-de-camp, one gw § 122.
,. '. . . . T-- ■ 1 -1 1^ Division offi-
unision-quartermaster, one division-engineer, and one judge advocate, cers.
each with the rank of major.
To each brigade there shall be one brigadier-general, one brigade- Brigade offi-
ins])ector with the rank of major, to serve also as brigade-major, one '^"^'
l>rigade-quartermaster, one brigade-engineer, and one aid-de-camp, each
with the rank of captaiu.
96
MILITIA — OFFICERS.
[Chap. 13.
Regimental of-
ficers.
Battalion offl-
cerB.
Company offi-
cers.
VThen ofBce of
quartermastcr-
gcneral, major-
general, &c., is
vacant, &c.
U.S. 13, §23.
Companies
witliout officers,
how command-
ed.
K. S. 12, § H.
To each regiment there shall be one colonel, one lieiitcnant-colonel,
and one major; one adjutant, one quartermaster, and one paymaster,
each with the rank of lieutenant ; one sui'geon, one surgeon's mate, one
chaplain, one sergeant-major, one sergeant-quartermaster, one drum-
major, and one life-m.ajor.
To each separate battalion there shall be one major; one adjutant,
and one quartennaster, each with the rank of lieutenant ; one surgeon,
one sergeant-major, and one quartermaster-sergeant.
To each company of infantry, and riflemen, there shall be one cap-
tain, one first, one second, one third, and one fourth lieutenant; four
sergeants, four corporals, and two musicians.
To each comjiany of foot artillery attached to a brigade and organ-
ized as designated by the war department of the United States, the
sixth day of March, eighteen liundred and forty-five, there .shall be one
major, to be elected in the manner provided for captains and subalterns,
four lieutenants, six chiefs of pieces, six gunners, and two musicians.
To each company of cavalry there shall be one captain, one first, one
second, one tliird, and one fourth lieutenant, four sergeants, four corpo-
rals, one saddler, one ftirrier, and two trumpeters.
To every company there shall be one clerk, who shall be one of the
sergeants.
To the company of cadets of the first division, one captain with the
rank of lieutenant-colonel, one lieutenant and one ensign, each with the
rank of major, one adjutant with the rank of captain, and one quarter-
master with the rank of first lieutenant.
To the company of cadets of the second division, one major, to be
elected as provided for captains and subalterns, one cajrtain, one first
heutenant, one second Ueutenant, one ensign, one adjutant, and one
quartermaster.
To each of said comp.anies of cadets, one surgeon, five sergeants, four
corporals, and four musicians ; and there may he to each of said compa-
nies such number of company officers of a rank, in the company of the
first division, not above first lieutenant, in the company of the sec-
ond division, not .above fourth lieutenant ; and of sergeants, corjiorals,
and musicians, as the commander-in-chief may from time to time deem
expedient for instruction in the school of the battalion.
Comjianies of cavalry and artillery attached to brigades, as men-
tioned in section twenty, shall be entitled to an adjutant with the rank
of lieutenant, and one surgeon, to be a]ipointed by tlie commanding
officers of said companies respectively, and commissioned by the com-
mander-in-chief, and to hold their commissions, as other staff officers
now do, or until the companies to which they are attached are organ-
ized into battalions or regiments of the same arm; and [an] adjutant so
appointed and commissioned shall receive the same compensation as is
allowed to other officers and soldiers of such companies. And a com-
pany of foot artillery .attached to a brigade shall be entitled to a quarter-
master with the rank of lieutenant, to be ap])ointed by the commanding
officer of the company, and commissioned by the commander-in-ehiof.
Sect. 28. AVhen the office of quartermaster-general is vacant, the
duties thereof .shall be performed by the adjutant-general; and when the
office of m.ajor-general, brigadier-general, colonel, m.ajor, or captain, is
vacant, or such officer is sick or absent, the officer next in rank shall
command the division, brigade, regiment, battalion, or company, until
the vacancy is supplied.
Sect. 29. When a company has neither commissioned nor non-
commissioned officers, the commander of the regiment or battalion to
which it belongs, shall appoint suitable persons within said com]iany to
be non-commissioned officers thereof; and shall .appoint one of the non-
commissioned officers to be clerk, indorse the ajipointment on his war-
Chap. 13.] miutia — officers. 97
rant, lulminister the oath to him, and certify the same, as required by
section titty-three. Tiie senior non-commissioned officer of a company
without ct)mmissioned officers, shall command the same, except upon
parade, and as provided in the following section.
Seit. 30. When a company is first enrolled, or from any cause is Companies
without officers, and an election of officers is ordered, if s\icli com]iany Iie^"ic'°an"^ri
neglects or refuses to elect any officer, or if the jiersons elected shall not ciL'ct.how .Mm-
accept, the commander of the regiment or battalion to which it belongs, u. s. ]2, § -s,.
sliall detail some officer of the staif or line of the regiment to train and ;^ S^K' ?-1' ~' '■
discipline said company, until some officer is elected or appointed by See §§ u'n, ijo.
the commander-in-chief. Such officer shall have the same power, and
be subject to the same liabilities, as if he were captain of such com-
pany; shall keep the records of the comjiany, and prosecute for all
tines and forfeitures, in like manner as a clerk might do, under section
one hundred and fifty-four; and all meetings of such company shall be
notified as provided in section ninety-six.
Sect. 31. The officers of the Une of the militia shall be elected as officers of the
fol I n w^ ■ ^''"■' election af.
lono^ s . ^ U. S. 12, § «.
Major-generals, by the senate and house of representatives, each hav-
ing a negative upon the other.
Biigadier-generals, by the written votes of the field officers of the
res]>ective brigades and commanders of brigade companies.
Field officers of regiments and battalions, by the written votes of the
captains and subalterns of the companies of the respective regiments or
battalions.
Captains and subalterns of companies, by the written votes of the non-
commissioned officers and jirivates of the res]iective companies.
Sect. S'2. The staff officers of the militia shall be appointed in man- staff officers,
ner following : 'k 's'"*'"!'",' *^
The a<ljutant-gencral, by the commander-in-chief. isif.'ai!, § -'.'
The quartermaster-general, by the commander-in-chief by the advice iJi^soiV'es Mjj
and consent of the council. 39.
The aids to the commander-in-chief, by the commander-in-chief.
The division-inspectors and division-quartermasters, by the respective
major-generals, and apjiroveil by the commander-in-chief
The aids-de-cam]i of major-generals and division-engineers, by the
respective major-generals.
The judge advocates, by the respective major-generals, and approved
by the commander-in-chief.
The brigade-majors and inspectors, brigade-quartermasters, brigade-
engineei-s, and aids-de-camp to brigadier-generals, by the respective
brigadier-generals.
Adjutants, ])a}Tnasters, quartermasters, chaplains, surgeons, and sur-
geons' mates, of regiments, by the respective colonels.
Adjutants, quartermasters, and surgeons, of battalions, by the respec-
tive majors.
The staff officers of tfce cadet companies shall be elected like company
officers.
Sect. 33. The non-commissioned officers in the militia shall be Xon-commis-
appointed in manner following: _ aStenToV.
Sergeant-m.ajors, quartermaster-sergeants, drum-m.ajors, and fife- K- ;?• J-^! § 5o.
majors, of regiments, by the colonel of the regiment. j rjlik! siii!
Sergeant-majors, and quartermaster-sergeants, of battalions, by the jirick'ira
major.
Non-commissioned officers of companies, by the respective captains,
who shall forthwith return the same in writing to the commanding
officer of the regiment or battalion.
Clerks, by the commanding officers of the respective companies. Clerks.
Sect. 34. When the office of clerk of a company is vacant, and it Duties of clerk,
9 13
93
MILITIA — OFPICEBS.
[Chap. 13.
how performed
when tlie office
is vacant or the
clerk abnent,&c.
Records, how
kept — to be evi-
dence.
E. S. 12, §§ 26,
100.
OGicers, how
(Miumissioned.
K. S. 12, § 51.
Persons ineligi-
ble to otBce —
■when elected,
cummauder-in-
ciiief to fiU va-
cancy.
It. S. 12, § 52.
Rank of officers,
how di'tt'rmin-
ed. Commission
to express date
of appointment.
K. 8. 12, § 53.
Loss of commis-
sion, how sup-
plied.
K. S. 12, § 51.
Miyor-general
to be notified.
E. S. 12, § 55.
to order elec-
tions of all
commissioned
officers.
R. S. 12, § 56.
1S64, 367, § 9.
Notice of elec-
tions. Penalty.
appears to the commander of the company that there is satisfactory evi-
deuce that no person will accept the same, he may issue his written
order to a non-commissioned officer or private in the company, requir-
ing him to perform all the duties of clerk except keeping the records,
for a term not exceeding three months; in case of the absence, sickness,
or inability, of the clerk, the commander of the company may aji]ioint a
clerk />;'6i tempore; or, upon satisfactory evidence that no one in the
com]iany will accept the office ^?'0 tempore, may order any non-commis-
sioned officer or private to perform the duties of clerk until the dork is
able to perform the same, or another is a])])ointed; and any non-commis-
sioned officer or private refusing or neglecting to perform such duty
when so ordered, shall forfeit to the use of the company not less than
ten nor more than twenty dollars, to be recovered on coin])laint by
the commander of the company. In such cases the records of the com-
pany shall be kept by the commander thereof as long as such vacancy,
absence, sickness, or inability, continues, and records so kept shall be
competent evidence of such orders and tein])orary appointments, as
well as of matters of which they would be evidence if kept by the clerk.
Sect. 35. All commissioned officers shall be commissioned by the
commander-in-chief, according to the respective offices and grades to
which they may be elected or ap]jointed.
Every non-commissioned officer's warrant shall be given and signed
by the commanding officer of his regiment or battalion.
Clerks shall have their a]ipointments certified on the back of their
warrants by the commanding officers of their res}>ective companies.
Sect. 36. No idiot, lunatic, common drunkard, vagabond, jtauper, nor
person convicted of an infamous crime, nor any other than white, able-
bodied, male citizens shall be eligible to any military office. When it
appears to the commander-in-chiet^ that a person thus ineligible has
received a majority of the votes cast at an election of officers, he shall
not commission him, but, with the advice and consent of the council,
shall declare such election null and void, and appoint some person to fill
the vacancy.
Sect. 37. Commissioned officers shall take rank according to the date
of their commissions. When two of the same grade bear an even date,
the rank shall be determined by lot drawn before the commander of the
division, brigade, regiment, battalion, company, or detachment, or presi-
dent of a court martial, as the case may be.
The day of the aijpointmcnt or election of an officer shall be expressed
in his commission, and considered as the date thereof. When he is
transferred to another corps or station of the same grade, the date of
the original appointment shall be expressed and considered the date of
his commission.
Sect. 38. When an officer loses his commission, upon affidavit made
before a judge or justice of a court of record and ))roduced to the adju-
tant-general, a duplicate commission shall issue of the same tenor and
date.
Sect. 39. Major-generals shall be notified of their elections by the
secretary of the commonwealth, and, unless within thirty days after such
notice they signify to the secretary their acceptance of office, shall be
taken to have refused the same.
Sect. 40. Major-generals of division shall order elections to fill all
vacancies which occur in their respective divisions, in the office of brig-
adier-general, field officer, captain, or subaltern. Such elections shall
be held at the ]ilace most convenient for the majority of the electors, and
sh.all be ordered throughout each division at least once in each )'ear; the
elections of company officers first, and those of field officers next.
Sect. 41. Electors shall be notified of elections at least ten days pre-
viously thereto. A non-commissioned officer or private unnecessaiily
Chap. 13.] rauTiA — officers. 99
absent from company election, shall forfeit one dollar, to be recovered R. s. 13, §§ sr,
on complaint of the clerk, one-half to bis use, and one-half to the use f'^.l^^' -j^q
of the commanding officer. See§-H.
Sect. 4"2. Officers orderinsj elections may preside, or detail some Presiding offi-
officer of suitable rank to preside. ilL^wrff i""*'
Sect. 43. A captain, or staff officer of the rank of captain, may pre- wiio to preside,
side at the election of an officer of equal or inferior grade within the Record and re-
liniits of his regiment or battalion; but no candidate for the vacancy r. s.'i2, §58.
sliall ])reside at the election, except to adjourn the meeting if no proper i***, 367, 5 8.
officer appears to preside.
At all elections such presiding officer shall keep a record of the pro-
ceedings, and make return thereof to the commanding officer of the
battalion, regiment, brigade, or division, as may be |iro]icr.
Seit. 44. The person who has a majority of the written voles of the who to be
electors present at a meeting duly notified, shall be deemed elected, and efections'mav'' '
the presiding officer shall forthwith notify him of his election, and make bo adjourned;
return thereof^ or of neglect or refusal to elect, to tlie conmiander of the "lectors ar" no'
division. Every person so elected and notified, shall accei)t, if a brio;a- !'.'"''?■ ^
/. , , ,. ... . .^ 1. Roster and
dier-general or held officer, withm ten days, or, it a company officer, roils to be pro-
forthwith; otherwise he shall be taken to have refused. If before the i^'s^io, §58.
meeting for the election of any officer is dissolved, the i)erson chosen is-!r, 2«, § 6.
• 1852 104 6 2
signifies to the presiding officer his refusal to acce])t, the same shall be '
recorded and make part of the return, and the electors shall proceed to
another election. Elections may be adjourned, not exceeding twice,
and each adjournment for a period not exceeding two days; but no
company eleeticm shall be legal unless it is notified in the manner pre-
scribed in section forty-one.
The original roster of the brigade, regiment, or battalion, or the
original roll of the company, as the case may be, shall be produced at
such elections, by the ]ierson having the legal custody thereof
Sect. 45. When the electors neglect or refuse to elect to fill a va- when electors
canc)-, the commander-in-chief, with the advice and consent of the iJJ.tJ?ns'(Jfeicc-
council, shall ai)])oiiit a suitable person. The commanding officer of the tious ami refu-
division shall return all elections, and refusals or neglects to elect, to tfonordcred,'^'^
the commander-in-chieti and unless he is notified by the commander-in- 'i!^^^"".'„^?\a
chief of his intention to make an appointment, he may, if necessary, 24Pick.'i8i. "
order a new election.
Sect. 46. When a company newly enrolled, or, from any cause, is Elections in
without commissioned officers, the commander of the regiment or bat- without' offi-
talion may without an order from the commander of the division, «ers.
I 1 *• i- a: u ' E. S. 12, § 60.
order an election ot officers as soon as may be.
Sect. 47. When an officer holding a military commission is elected Acceptance of
to another office in the militia, and accepts the same, such acceptance ?ate one previ-
shall constitute a part of the return of the presiding officer, and shall o"siy held,
vacate the office previously held.
Sect. 48. Commissions shall be transmitted to the commanding offi- Commissions,
cers of divisions, and by them, through the proper officers, to the officers J'J^'^ fausmit-
elect. E- s. 12, § 61.
Sect. 49. When a person elected or a]ipointed to an office refuses to when persons
acce]jt his commission or qualify at the time of accejitance, the major- new^liect"!™ to
general shall certify the fact on the back thereof, and return it to the ^^ "'^'Jf ''•
adjutant-general; and if the office is elective a new election shall be ■ ■ "•'»
ordered.
Sect. 50. No candidate for office in the militia, pending or after an officer8,&c.,uot
election, shall treat with intoxicating liquors the persons attending {oxtefttiS"' ""
thereat, and no officer shall on days of military duty so treat persons liquors,
performing such duty. *• ^- '"' ^ *"'''' -■*■
Sect. 51. No officer or soldier shall be arrested on civil process. Persons on du-
while going to, remaining at, or returning from, a place where he is or- fromarresT''
dered to attend for election of officers or military duty. R- s. 12, § m.
100
MILITIA OFFICEnS.
[Chap. 13.
Oath of com-
missioned ot-
ticers — howad-
miuistered and
certified.
Form of certiii-
cate.
K. S. 12, § 05.
3 Cush. 587.
Clerk's oath.
Certificate.
K. 15. 12, 5 66.
6 Pick. ZVJ.
See § 2'J.
Discharge of of-
ficers upon their
own request.
K. S. 12, § 07.
Request for dis-
charge between
May and No-
vember not to
beapproved,mi-
less, Ac.
K. S. 12, § 08.
If officer refuse
to approve,
commander-in-
chiet may dis-
charf^e.
U. S. 12, § 09.
OfTiccrs not to
be discharged,
except —
when unable
to discharge du-
ties, &c.
when remov-
r-d out of the
hounds of liis
command.
absent more
than a year, &c.
upon address,
&c.
upon sen-
tence, &c.
Sect. 52. Every commissioned officer, before he enters on the duties
of his office or exercises any command, sliall take and subscribe before
a justice of the peace, or general or field officer who has juvviously
taken and subscribed them himself, the following oaths and declara-
tions : —
"I, A B, do solemnly swear that I will bear true faith and allegiance to the com-
monwealth of Massachusetts, and will support the constitution thereof : So help me,
God."
" I, A B, do solemnly swear and affirm, that I wiU faithfully and impartially dis-
charge and perform all the duties incumbent on me as , according to the best
of my abilities and understanding, agreeably to the rules and regulations of the consti-
tution, and the laws of the eomnionwealth. So help me, God."
"I, A B, do solemnly swear that I will support the constitution of the United
States."
And on the back of every commission the following certificate shall
be printed and signed by the person before whom such officer is
qualified : —
This may certify that A B, commissioned as within on this day of
A. D. personally appeared, and took and subscribed the oaths required by
the constitution and laws of this commonwealth and a law of the United States, to
qualify him to discharge the duties of his office.
Before me,
Sect. 53. Every clerk of a coiTi])any, before he enters n]ion his du-
ties, shall take the following oath, before the commanding officer of the
company to which he belongs, viz. : —
" I, A B, do solemnly swear that I will faithfully and impartially perform all the
duties incumbent on me, as clerk of the company to which I belong, according to the
best of my abilities and understanding. So help me, God."
The commander of such company shall at the time of administering
the oath certify on the back of the warrant of the sergeant appointed
to be clerk, that he was duly qualified, by taking the oath required
by law.
Sect. 54. When an officer requests in writing his discharge from
office, with the ajqjroval of the commanders of the regiment or bat-
talion, brigade and division, to which he belongs, the commander-in-
chief may discharge him.
Sect. 55. No commanding officer shall approve a resignation under
the jireceding section, if the same is offered between the first day of
Maj^ and the first day of November, unless the reasons for such resig-
nation are urgent and ]iroved to his satisfaction ; and the rolls, orderly
book, roster, and documents, in the custody of the officer resigning,
shall before his discharge is delivered to him, be deposited with the
officer having a right to the custody of the same.
Sect. 5G. If an officer unreasonably refuses to approve an applica-
tion for discharge, and it is so made to ajijjear to the commanders above
him, they may apjirove the same, and the comraander-iii-chief may dis-
charge the applicant.
Sect. 57. No officer shall be discharged by the commander-in-chief,
unk-ss upon his own request, except as follows : —
When it ajipears to the commander-in-chief that he has become
unable or unfit to discharge the duties of his office, or to exercise jiroper
authority over his inferior officers and soldiers, or that he has been con-
victed of an infamous crime ;
When the commander of his division certifies that he has, cither
before or after receiving his commission, removed his residence out of
the bounds of his command to so great a distance, that in the ojiinion
of such commanding officer it is inconvenient to exercise his command ;
When such commander certifies that he has been absent from his
command more than one year without leave ;
Upon address of both houses of the legislature to the governor;
Upon sentence of court martial, after trial according to law ;
Chap. 13.] militia — adjutant-general. 101
When the corps to which he belongs is disbanded ; Officers, whea
In which cases he may be so discharged. Every officer, except banded! "^^
when under arrest, shall perform the duties of his office until he is K. s. 12, § 71.
discharged.
Sect. 58. When an officer accepts an appointment in the army of Discharge by
the United States, his office shall thereby become vacant ; and if after tPPg^™™!'"
acce])ting such ajipointment, he exercises any of the powers and I'enaity.
authority of such otfice, he shall forfeit not exceeding three hundred mi. ' ' *' '
dollars.
Sect. 59. The commissions of staff officers appointed by a command- staff commis-
ing officer, shall expire as soon as the successor of such commanding r"s!i2, § 73.
officer is commissioned. i'?"' t,'"' ^ ■*■
Sect. 60. Officers under arrest shall not resign, but shall be sus- bfflcers under
pendeil from exercising the duties of office. K'^s''*i2 §5 70
Sect. 61. A non-commissioned officer or clerk of a company may ije.
resign his office to the commanding officer of his company, and be dis- ^loSed'Ser.
charged by him. K. s. 12, § 74.
THE ADJirTANT-GENERAL.
Sect. 62. The adjutant-general shall hold his office for the term of A(^jutan^gen-
one year, and until his successor is appointc<l and qualified, but may be ulsiii, §§22, 49
removed at any time bv the commander-in-chief. K- s. i3, §20.
. . 1^3 17 § 1
Sect. 63. He shall give bond to the state in the penal sum of twenty to'giv'e bond.
thousand dollars, with two sureties at least, to be approved by the gov- ^'**^' ^"' 5 ^•
ernor and council, conditioned faithfully to discharge the duties of his
office ; to use all necessary diligence and care in the safe keeping of
military stores and property of the commonwealth committed to his
custody ; to account for the same, and deliver over to his successor, or
to any other person authorized to receive the same, such stores and
property.
Sect. 64. He shall receive a salary of eighteen hundred doll.ars a salary of,
year, in full payment for .all services rendered as such officer and as act- jj.^a'^ if °§ 4.
ing quartermaster-general and keeper of the public magazines, muni- is54, 8i,§i.
ions of war, intrenching tools and other implements of war belonging ij^uj iwi
to the commonwealth ; and may employ in his office a clerk .at a salary
of twelve hundred dollars a year.
Sect. 65. He shall distribute all orders from the commander-in-chief; to distribute
shall obey all orders relative to carrying into execution and jicrt'ecting derf fi^.^nd tc
any system of military discipline established by law; an<l shall be in r"q°'5.,''Y'i2"'I(
attendance when the commander-in-chief reviews the militia. 82. ' '
Sect. 66. He shall furnish blank forms of rolls and of the different to furnish
returns that may be required, explaining the pi-inciples upon which they riturusl'aud™'
should be made ; of orders for the commanders of comiianies to order ij'auks for com
, • . 1 rt. -t • -1. 1 ■ ._ i 1 pauy orders, »fec
the non-commissioned officers and privates to notify their men to attend k. s. 12, § 9,34
the inspections, trainings, reviews, and elections of officers, which may ''^•
be ordered ; and of notifications or orders, to be left with the men.
Sect. 67. He sh.all make proper abstracts from the returns of the to make ab-
commanding officers of brigades and divisionary corps, and lay the turns.
s.ame before the commander-in-chief, annually. ^- ^- ^^' § •^''■
Sect. 68. He shall annually make a return, in duplicate, of the tomaiteannu
militia of the state, with their arms, accoutrements, and ammunition, pijclte™'""
according to such directions as he may receive from the secretary of K- s. 12, § 33.
war of the United States ; one copy of which he shall deliver to the
commander-in-chief, and transmit the other to the president of the
United States, on or before the first Monday in January.
Sect. 69. He shall, within twenty days after the receipt of each to certify
company or band ]iay roll under sections one hundred and twenty-two mit t'oTo'wns"^
and one hundred and twenty-four, .after carrying out therein opposite to '|*J;' ^''*' |t^' ^
the name of each man returned, the amount of pay to which he is see §"1.39.
9*
1C2
MILITIA — ARMS, EQUIPMENTS, &C.
[Chap. 13.
A(ijutant-2fpn-
er;il to submit
to tlic auditor,
roll of OtTlCtTB
entitled to |iay.
1845, 24.'!, « S.
l,S4(i, 218, §§ 4, '.).
1849, 50, § 2.
1849, 218, § 7.
See § 139.
account of ex-
penditures.
is:i7, 240, § 4.
1849, 5'i, § 2.
ISSr, 40, § 1.
to distribute
arms, &c.
K.S. 12, §§4^,44.
IR40, 92, § 20.
1842, «:(, § I.
1844, 101, §8.
Kesoives, 1845,
n, 82.
1847, 77.
Field pieces
to remain in
possessiou of
toMms, &c.
Resolves, 1853,
53.
What uniform
to be provid-'d.
l:. S. 12, §§ 39,
99, 112.
1840, 92, § 22.
4 Gray, 502.
Uniform, A'c,,
exempt from at-
taclinient.
R. S. 12, § 42.
1857, 2.35, § 1.
Camp oquipaf^e
to be furnislic'd
to commiuulcrs
of divisions, .tc.
Resolves, 1847,
77.
Colors to be fur-
nisbed.
Who responsi-
ble.
R. S. 12, § 43.
Arms and
entitled, ami certifying thereon that it contains the names of those per-
sons only who are entitled to pay, transmit the same to the mayor and
aldermen, or the selectmen of the city or town in which the armory or
place of assembly of such company or band is situated.
Sect. 70. He shall on or before the twenty-fifth day of .Tanunry in
each year, make out a certified roll of the names of all the geiu'ral, field
and staff officers that appear by the returns made to liim under section
one hundred and twenty-eight, to be entitled to the pay under section
one hundred and thirty-seven, and shall ascertain from the returns made
to him under sections one hundred and twenty-two and one hundred
and twenty-four, the amount of money necessary to reimburse the
several cities and towns, and shall submit sucli roll and result to the
auditor; and the governor shall draw his warrant on the treasury for
such sums as may be necessary to jjay such officers and reimbiu'se such
cities and towns.
Sect. 71. He shall, annually in January, lay before the auditor, an
account, with vouchers, of his expenditures as adjutant-general and
acting quartermaster-general.
Sect. 7'2. He shall distribute to the officers, regiments, battalions,
and companies, of the volunteer militia, the anns, furniture, equipments,
equipage, and books, required by law to be furnished at jniblic expense,
and may sue either in contract or tort any or all such officers for loss or
damage sustained in articles so furnished them.
Sect. 73. He may permit the field jiieces and artillery equipments
now in the possession of the towns and cities, so to remain so long as
they provide suitable places of deposit tlierefor, and keep them in good
condition, without exjjense to the commonwealth.
ARMS, EQUIPMENTS, EQUIPAGE, &C.
ARTICLES FURNISHED BT S0LBIEK8.
Sect. 74. Officers of the line and staff, and officers and soldiers of a
company raised at large, shall provide themselves with such uniforms
complete as the commander-in-chief prescribes, subject to such restric-
tions, limitations, and alterations, as he may order; and every such
soldier deficient therein shall forfeit two dollars, to be recovered on
complaint of the clerk, one-half to his use, and one-half to the use of
the commanding officer.
Sect. 75. Every officer and soldier shall hold his uniform, aiTns,
ammunition, and accoutrements, required by law, free ti-om all suits,
distresses, executions, or sales, for debt or payment of taxes.
ARTICLES FURNISHED BT THE STATE.
Sect. 76. The quartermaster-general shall deliver as a loan from the
state to the commanding officer of each division, brigade, regiment, b.at-
talion, or company, of the volunteer militi.a, such tents, fixtures, and
other cam]) equipage as may be in the state arsenal ; and each officer to
'^^•hom such equipage is delivered, shall be responsilile for the safe keep-
ing of the same ; and in case of the discharge or death of such officer,
lie or his legal representati\'e shall l^e released from such resjionsibility,
upon filing in the office of the adjutant-general, a certificate of the offi-
cer succeeding him in command, that the articles so furnishe<l are nt the
date of the certificate, in good order and condition, reasonable use and
wear thereof excepted.
Sect. 77. Each regiment and battalion shall be furnished by the
state with the state and regimental colors, their stafi's, belts, and sockets,
and the commander of such regiment or battalion shall be responsible
for their safe keejiing.
Sect. 78. Each company of the volunteer militia on application by
Chap. 13.] militia — arms, equipments, &c. 103
the commander tlieroof to the adjutant-general, and producing satisfac- equipments to
tory evidence tlial a .suitable armory or place of deposit is provided 1's4o''™)''k''.'.'o"
therefor agreeably to section eighty-eight, shall be furnished with such
appro])ri:ite arms and ccjuipments as shall be detenuined by the com-
mander-in-chief.
Sect. 79. The commissioned officers of every company of volunteer commissioned
militia shall, from the time of their bein? qualified, be responsible for offlf^ers icspon,
»i i- 1 • 1 i i> 11 • , ' . „ sible for cquip-
the sate kee]iing and return oi all amis, equipment, and equi]3age, fur- mcuts.
nished and in their possession, by provisions of law, and for any loss or 'w2; m,' § i"'
damage thereto, compensation may be obtained by an action of con- "^o-, .312.
tract brought by the adjutant-general against all or any of such 71!™ *'^*' '*'^'
officers.
Sect. 80. In case of the discharge or death of siidi an officer, he or how relieved
liis legal representative shall be relieved from such responsibility, upon bii'^I^fnScof
filing in the office of the adjutant-general a certificate signed by not less discharge, &c.
than two commissioned officers of his company, that such articles EesoiTCs^iws,
are, at the date of the certificate, undiminished in quantity and value, "'•
reasonable use and wear excepted.
Sect. 81. Ujion the disbandmcnt of a volunteer company which has Arms, &c., to
received amis, equipments, or equipage, from the adjutant-general, he dLSded'coT
shall receive the same on presentation thereof by the officers of the i""'y-
company, or their agents. "~^~'' '"''^' ^ ^'
Sect. 82. Each company of militia shall be furnished with such instruments of
instruments of music as the commander-in-chief shall order. Each "Isi'jed!'"^
commander of a brigade may divaw orders upon the quartermaster- ["'"""""'<''■ of
general, or officer acting as such, in favor of the commanders of regi- on'rer." """""
merits, battalions, and companies, for colors and instruments of mu.sic. J^Jxrespopsi-
Commanders of companies shall be responsible for the safe keeping of K. s. 12, § 43.
the instruments delivered to them for the use of their companies.
Sect. 83. Each comp.any of foot artillery shall be provided by the Cannon, ammn-
quarterniastcr-general with the battery of manccuvre jirescribed for that n'md'siied tlTM--
nmi by the war department of the United States ; with caissons, harness, 'i'lery.
implements, laboratory, and ordnance stores, which may, from time to
time, be necessary for their complete enuiiiment for the field : and, when ''Y''™ '1 '*"**
, ' ,. • , .1 i- 1 v.. i ^- T . ofwar, &c.,
a state ot war, or danger thereof, renders target practice ex]}edK'nt in powder, &c.,
the o])inion of the commander-in-chief, such quantity of ammunition '"■'mshed.
annually as he deems necessary to be expended in experimental gun- y^-l^g accounts
nery. The commissioned officers of each company shall be accountable able.
for "the preservation of the jiieces, a]iparatus, and ammunition aforesaid, iwu.'Ji^lVs.
and for the projier expenditure of the ammunition. isas, i;4, § 7.
Sect. 84. The commanding officer of such company, when it is when comp«ny
ordered to march out of the city or town where the gun-house is situ- <"'<'>^"<' '»
, -, . /• 1 ^ . 1 marcn out of
atea, and on occasions ot parade tor experimental gunnery, or camji town, &c.
duty, shall provide horses to draw the field pieces and caissons, and tattery7ho°v
present his account of the expenses thereof, as provided in section one ryW-
hundred and forty-nine. On all other occasions when ordered out by it4u,'2iy,§ i'i.
an officer of comjietent authority for camp or salute duty, the charges
for horses, powder, and necessary expenses, shall be defrayed by the
quartenuaster-general.
Sect. 85. Every general and field officer, division and brigade-in- scott's Tactics,
spector, adjutant of regiment or battalion, and commander of a comjiany, ^^y '"? b'? f"i
shall be fiirnishcd with Scott's Infantry Tactics, adopted by the war ccrs.
department in the year eighteen hundred and thirty-five ; every sub.al- J'^™'™ 27*^
tern officer of an infantry coni])any with the first and second volumes of 1S04I32.'
said Tactics; every field, staff, and company officer, and non-commissioned
officer, with the compend of instruction in military tactics and the
manual of percussioned arms with extracts from the anny regulations,
prepared by the adjutant-general. All which books shall be considered
public property, and delivered by such officers to their successors.
104
MILITIA — ARMORIES, ORDERS, &c.
[Chap. 13.
Military stores
may bo sold, &c.
Kesolves, 1822,
28.
Committee of
leg'ifiliiture to
visit arseual and
report.
Kesolves, 1845,
12.
Sect. 86. The commander-in-chief, with the advice and consent of
the council, may sell or exchange, from time to time, such military stores
belonging to the quartermaster-general's department as are found un-
serviceable or in a state of decay, pr wLich they think it for the interest
of the state to so sell or exchange.
Sect. 87. The committee of the legislature on the militia shall,
annually in January, visit the arsenal in Cambridge, and make a thorough
examination into the condition of the same, of the arms and munitions
of war, and other property of the state or general government deposited
there, and report the condition of the arsenal and property.
Armories, se-
lectmen, &c., to
provide.
ISM, 92, § 20.
1853, IKK, § 1.
See § 78.
rent of, &c.,
to be certified
by selectmen,
&c.
1853, 188, § 2.
See § 91.
Ai^iutant-gener-
al to audit, &c.,
claims for rent.
Payment.
IWil, 31), § 2.
1853, 188, § 3.
1857, 303, § 2.
1858, 166, § 2.
Penalty for
false certificate.
1853, 188, § 4.
Armories, &c.,
how examined.
1840, 92, § 20.
ABMORIES.
Sect. 88. The mayor and aldermen and selectmen shall provide for
each company of militia within the limits of their respective places a
suitable armory or place of deposit for the arms, equipments, and equi-
page, furnished it by the state. When a company is formed from diflerent
places, the location of such armory or place of deposit shall be deter-
mined by a majority of its members.
Sect. 89. They shall annually in October or November transmit to
the office of the adjutant-general a certificate, verified by the o.ath or
affirmation of at least two of their board, showing the name of each
company furnished with an armory, the amount paid for the rent thereof,
and stating that a majority of their board consider such armory neces-
sary for the use of such company, and that the rent charged therefor is
fair and reasonable according to the value of real estate in their place.
Sect. 90. The adjutant-general shall annually examine all certificates
so returned to his office, institute any inquiries he deems expedient
relative thereto, and allow them in whole or in part to an amount not
exceeding three hundred dollars for one company. He shall within ten
days after such examination file in the office of the auditor his certificate
stating the suras allowed, the name of the company for whose use each
sum is allowed, and the place to which it belongs ; and shall thereupon
notify the mayor, aldermen or selectmen, of the sum allowed to their
place, which sum shall be paid upon the warrant of the governor to
such mayor and aldermen or selectmen, as provided by law for the
reimbursement of sums paid for military service.
Sect. 91. A city or town receiving from the treasury of the com-
monwealth, by reason of a false return or certificate, under section
eighty-nine, any money to which such place is not entitled, shall forfeit
a sum not exceeding four times the amount of money so received.
Sect. 92. The commander-in-chief may at any time detail an officer
to examine any armory and report the condition thereof^ and of the
arms, equipments, and equipage, therein deposited.
Orders, by
whom distrib-
uted.
K. S. 12, §§ 12,
30.
1837, 240, § 8.
Companies or-
dered out, how
notified.
R. S. 12, §§ RS,
100, 112.
13 JIaa.i. 433.
9 Pick. 41,557.
10 Pick. 134.
17 Pick. 243.
24 Pick. 172.
OEDEES AND NOTIFICATIONS.
Sect. 93. Orders from the commander-in-chief shall be distributed
by the adjutant-general; division orders, by the division-inspector;
brigade orders, by the brigade-major; regimental and battalion orders,
by the adjutant; company orders, by the clerk, or by any non-com-
missioned officer or private, when so required by the commanding officer.
Sect. 94. When a commander orders out his company for military
duty, or for election of officers, he shall order one or more of the non-
commissioned officers or privates, to notify the men belonging to the
company to appear at the time and place appointed. Such non-com-
missioneil officer or private shall give notice of sucli time and ]ilace to
every person whom he is ordered to notify ; if he fails so to do, he sh.all
foifeit not less than twenty nor more than one hundred dollars, to be
CeAP. 13.] MILITIA — DISCIPLINE, &c. 105
recovered on complaint of the clerk, one-half to his use and one-half to
the use of the commanding officer.
Sect. 95. Xo notice shall be legal, imless given by such non-com- Notifications,
missioned officer or private to each man verbally, or by leaving at his [fniosf or* *"**
usual ])lace of abode a written or printed order signed by such officer or verbal notice
private four days at least previous to the time appointed, if for military Notiflcatione,
dut}', and ten days previous thereto, if for election of officers; but in i°^s'r>'Ts9
case of invasion, insurrection, riot, or an unforeseen or sudden occasion, is4(mii;,'§ 24.'
a verbal, written, or printed notice, however short, shall be legal. When 21 Fick! .isa.
a comnanv is paraded, the commandinar officer mav vcrballv notifv the 22 Pick. -kk;.
men to ap[)ear at a future day, not exceeding thirty days from the time ' '
of such jiarade, which shall be sufficient notice as respects the ])ersons
present ; and all commanders of companies may on parade, read division,
brigade, or regimental orders, and notify the soldiers of their several
commands to apjiear as by such orders required ; which notice shall be
a sufficient warning. Notifications may be proved, as provided in sec-
tion one hundred and fifty-four.
Sect. 96. When a company is without commissioned officers, the Company with-
commander of the regiment or battalion to which it belongs, or the notiflcd*"^^'^""
officer detailed by him to discipline the s.ame, shall in writintr order anv }'™o""y- „
■•to; • » . .-V .1 "7-11 * 1 i£. s. 12, §§ 91,
non-commissioned officers or pnvates to notitj^ the i)ersons hable to do 100, 111.
duty in such company, to appear for duty required by law, at the time See §30.
and ])lace mentioned in such order; and, if a non-commissioned officer
or i)rivate refuses or neglects so to notify, he shall foi-tc'it and pay to the
use of jiis regiment or battalion not less than twenty nor more than one
hun<lred dollars, to be recovered on complaint by the commander thereof
Sect. 97. Clerks of companies shall record in the orderlj- book. Orders, &c., to
company orders and notifications ; but such record shall not be necessary i;| ™i2,''ri3.
to the recovery of a penalty.
DISCIPLINE, TEAININGS, IXSPECTIOX, AND CAHfP DUTT.
Sect. 98. The system of discipline and field e.Ycrcise ordered to be Svstem of disci-
observed by the army of the United States, in the difl'erent corps, or 'i{"s;i*,%75.
such otlier system as may hereafter be directed for the militia by laws iwo, 92, §§5,21.
of the United States, shall be observed by the militia.
Sect. 99. The conunande'r of every reghueut, battalion, and detached Commanders of
company, may annually order out the conuuissioiied and non-commis- [oor"dcrelcmeii-
sioned oflicers umler his command, for elementary drill, two separate tarj- drills.
<lays between the middle of May and the middle cif July, at such place rttendan'S/'.°°""
as he deems most convenient; and if the place of any such officer in a 1854, 367, §§ 3, *.
eom))any is vacant, the commander thereof shall detail from the jirivates
tmder his command a sufficient number to make up the deficiency.
Every person unnecessarily neglecting to attend at the time and place
appointed for such drill, shall forfeit to the use of his regiment, battalion,
or company, three dollars, to be recovered by any commissioned officer
thereof; in an action of tort.
Sect. 100. Unless the commander-in-chief prescribes the time, place. Encampments,
and manner, of assembling the troops for the pur])oses declared in this issued! '^°'^' """^
section, each commander of division shall annually order an encamp- Place of.
ment of his division by brigades or regiments, at some time between the ]|i9,'2'i8,§§a,6.
middle of July and the middle of October. The orders for encamp- '^^^pl'j.i',
ment by brigade shall be promidgated in the brigade thirty days before isss', igo1§7.'
the time a)i]iointed for the encampment; the orders for encampment by "Gray, 300.
regiment shall be jiromulgated in the regiment twenty daj-s before such
time. The ]>laee and, if no time is designated bj- the commander of
division, the time of encampment shall be designated by the commander
of the troops to be assembled, and regard shall always be had to the
convenience, proximity, and accommodation, of the troops to be assem-
bled ; but no ground shall be occupied for an encampment in time of
14
106
MILITIA — DISCIPLINE, &c.
[Chap. 13.
Distance com-
paniea to
march.
Parade of more
tlian briga'le.
R. S. U, § ,-,s.
I(rt0, 9J, § 2i.
Troops to be ex-
ercise.!, inspect-
ed, &c.
R. S. 12, §§ OS,
lia.
l»5;i, loi, §§0,0.
Company roll
calls, liow made
185;, aai, § i.
1858, lOU, § 1.
Rank of corps.
Senior officer to
command.
R. S. 12, § 79.
1853, 337, § 1.
See § 37.
Companies
withoutofficers,
how command-
ed.
R. S. 12, § 79.
Brigadc-m.'ijors
to attend re-
views, inspect
arms, &c.
R. S. 12, § 81.
Officers and sol-
diers may drill
in camp, &c.
1849, 218, § 3.
JiOimds of pa-
rade may be
fixed.
Punishment for
intrusion.
K. Jj. 12, § 80.
Persons not
boldeu to do
duty on days of
certain elec-
tions, except,
&c.
Liability of offi-
cers.
R. S. 12, §§ 85,
101.
See §§ 100, ICl.
peace without the consent of the selectmen of the town, or mayor and
aldermen of the city where the encampment is to be made.
Sect. 101. No officer or soldier shall be obliged to march more than
fifteen miles from his residence to a review, except of a regiment, bat-
talion, or less body, and no larger body than a brigade shall be ordered
to parade at the same time and place, except by order of the com-
mander-in-chief
Sect. 102. Each encampment shall last three days ; the troops shall
be inspected, reviewed, and thoroughly exercised, as companies, bat-
talions, or brigades, in the whole routine of camp and field duty. Every
non-commissioned officer and private, holden by law to do military duty
in a company, and unnecessarily neglecting to ap]iear at the time and
place appointed for encampment, shall forfeit five dollars, to be recovered
on complaint of the clerk, one-half to his use and one-half to the use of
the commanding officer.
Sect. 103. Each company roll call shall be made during the term of
encampment, under the supervision and in presence of a regimental or
commissioned staff officer, to be designated by the commanding officer
of the regiment or battalion to which the company is attached.
Sect. 104. Each division, brigade, regiment, and battalion, .shall, in
the field, rank according to its number, the lowest number having the
highest rank; companies in a regiment or battalion shall form according
to the rank of the officers ])rescnt commanding them ; and when distinct
corps parade, join, or do duty, together, the senior officer present shall
command.
Sect. 105. When a company destitute of commissioned officers
parades with other troojis, the officer in command shall detail one or
more commissioned officers present to command it, unless tlie officer
detailed by the commander of the regiment to command it is present.
Sect. 106. The brigade-majors and inspectors shall attend tlie annual
encampments of the regiments and battalions in their brigades while
encamped separately, and wliile they are under arms, inspect their arms,
ammunition, and accoutrements, superintend their exercises and ma-
nceuvres, and introduce the system of military discipline required by law
and by orders received from time to time from the commamler-in-chief
Sect. 107. By permission of the officer in chief command, an<l of
their own immediate superiors, officers, privates, and musicians, may drill
and mano-uvre in camp in undress uniform or fatigue dress, and mounted
officers may discharge their duties on foot.
Sect. 108. Every commanding officer, when on duty, may ascertain
and fix necessary bounds and limits to his parade, (not including a road,
so as to prevent passing,) within which no spectator shall enter without
leave from such commanding officer. Whoever intrudes within the
limits of the parade, after being forbidden, may be confined under guard
during the time of parade, or a shorter time, at the discretion of the
commanding officer; and whoever resists a sentry who attempts to put
him or keep him out of such limits, may be arrested by order of the
commanding officer, and c.arried before a court or magistrate, to be
examined or tried upon complaint for such assault, or disturbance or
breach of the peace.
Sect. 109. No officer or soldier shall be holden to perform militaiy
duty except in case of invasion, insurrection, riot, or tumult made or
threatened, or in obedience to the orders of the commander-in-chief, on
a day appointed for a meeting in the town in which he resides for the
election of governor, lieutenant-governor, senators, electors of president
or vice-president of the United States, or representatives to congress or
the general court ; and an officer parading his company or ordering it
to parade contrary to the provisions of this section, shall, besides being
liable to a court martial, forfeit not less than fifty nor more than three
hundred dollars.
Chap. 13.] militia — discipline, &c. 107
Sect. 110. The commander-in-chief may order out any portion of Commanrter-m-
the militia for escort and other duties. The commanders of companies ci,cort"'&^"'^"*"
or corps so ordered out shall present their accounts for necessary mu- JJ"™-
sic to the quartemiaster-gencral, who shall pay the same out of the KeBoive's, isii,
monc}' of the state in his hands. •**■
Skct. 111. Nothing herein contained shall be construed to prevent Voluntary pa-
any company from meeting for the pui-pose of drill, funeral or other [inlHed."' ''™
escort, or a voluntary service ; nor to impair the obligation arising under
constitutional articles of agreement adopted by the company, so far as Articles of
regai'ds the members who have signed the same, unless they are rejnig- ;|if,'in'i'"rbv com-
nant to law. All fines, penalties, and assessments incurred by officers or pany binding,
soldiers of such company, under such constitutional articles of agree- bVcach thereof,
ment signed by them, and approved by the commander-in-chief, may, in k. s. 12, § 87.
addition to any other remedy thereon, be recovered on complaint of the
clerk.
Sect. 112. Every non-commissioned officer or private who appears Penalty for del
at a parade or drill required by law, deficient in any arm furnisheff him 21""^ '" *™'''
by the state, or with such arms unserviceable or in bad condition, shall k. s. 12, §§ 43,
forfeit one dollar, and every such officer or private so appearing, deficient imsi, 2ir,'"§ 13.
in any article of equi])ment or ammunition furnished to or required of ^^-' iw, §6.
him by law or general order, or with such equipment or ammunition of
bad quality or condition, shall forfeit fifty cents, to be recovered on
complaint of the clerk, one-half to his use and one-half to the use of the
commanding officer.
Sect. 113. A soldier who unnecessarily, or without order from a Loaded arms
superior officer, comes to any [larade, with his musket, rifle, or jiistol, i,'r',u."i,'t''on pa-
loaded with ball, slug, or shot, or so loads the same while on para<le, or rad.-,°&c.
unnecessarily, or without order from a superior officer, discharges the 10b, iizT '
same when going to, returning from, or u])on parade, shall foileit not
less than five nor more than twenty dollars, to be recovered ou com-
plaint of the clei-k, one-haLf to his use and one-half to the use of the
commanding officer.
Se< T. 114. A soldier behaving with contempt towards an officer, or Contempt, dis-
conducting in a disorderly manner, or exciting or joining in a tumult i'iv"how"pun°*'
or riot, or being fruilty of unniilitary conduct, disobedience of orders, or isln-d.
neglect of duty when under arms or on duty, shall foifeit not less than •■-•''
five nor more than twenty dollars, to be recovered as provided in the
preceding section.
Sect. 115. A soldier quitting his gttard, section, platoon, or cont- Quitting guard,
pany, shall forfeit not less than two nor more than ten dollars, to be fcd'!"^ ^'""
recovered, if the offence is committed at a regimental or battalion pa- k. S. 12, § 100.
rade, on comjilaint by the commander of the regiment or battalion, or
the company clerk ; if at any other parade, by the clerk.
Sect. 116. For any offence mentioned in the jn-eceding section the .Soldiers may be
delincpient may be put and ke]it under guard by the commander of the iIuar'i!'''xon-
company, regiment, or of the field, for a time not extending beyond the commissioned
.'/' '^. n ',.,,. ', 1 1 « » •' . . -1 officer may be
term of service tor which he is then ordered. A non-commissioned reduced to
officer, for an offence mentioned in this chapter, or for disobedience of 5f"!f'j., 5 .gf,
orders or unniilitary conduct at a regimental or battalion p.arade, may
besides incurring the fine prescribed be reduced to the ranks by the
commander of his regiment or battalion ; and for such misconduct at
any other ptirade, by such commander with the advice of his company
commander.
Sect. 117. Soldiers in companies without officers, when ordered out Penalties on
to be trained and disciplined, shall for absence, deficiency, misconduct, p°l,1o7without"
or neglect, be liable to the fines prescribed for oftences in other com- offi.-ers.
panies, to be recovered upon complaint of the officer so detailed, sub- ni. " '
stantially as by clerks under sectitm one hundred and fifty-four, one-
half to the use of such officer and one-half to the use of the regiment
or battalion.
108
■ RETURN'S.
[Chap. 13.
Rosters and or-
derly book, by
whom kept.
K. s. 1^, § -jr.
1837, 240, § ».
Company rolls,
how kept.
ti> be revised
and corrected.
R.S. 12, §§'.!,!».
22 Pick. 4ur..
2:j lick. 54, 208.
Company or-
derly book, how
kept.
Delinquencies,
fines, Ac, to be
recorded.
K. S. 12, § 29.
23 Pick. 54, 20S.
Commander of
companies to
make duplicate
returns in ten
days.
Returns of di-
visionary corps,
&c., to whom
made.
R. S. 12, § 13.
18411, 21»,§ 1.
1849, 218, § 9.
1858, 106, § 1.
to make al-
phabetical pay
rolls of ctjMii)a-
nies witliiu ten
days after camp
duty.
1S4(>, 318, § 2.
1849, 218, § 9
1856, 101), § I.
See §§ 09, ru,
1.39, 140.
Penalty for
nej^lect, or false
return, &c.
1815, 243, § 10.
1849, 218, § 9.
2 Mot. 298.
Returns by
master of rerri-
mental or bat-
talion band.
1840, 218, § 9.
See§§09,r0, 1.39,
140.
ROSTERS, ORDERLY BOOKS, ROLLS, AND RETURNS.
Sect. 118. The division-inspector of each division, tlie Ijrifjade-inajor
of e:u-li briaj.ide, iind the adjutant of each regiment, battalion, or coi'iis,
shall constantly keep a correct roster of the command to whicli he bo-
longs, and an orderly book in which he sliall record orders received and
issned.
Sect. 119. A fair .and exact roll of each company shall be kept by
the clerk, under the direction of the commander, with the >*t;ite of the
arms and eciuiiiments furnished to each man, in the form jirescribed for
the returns of the militia by the commander-in-chief. Such rolls shall
be annually revised in the month of May, and corrected from time to
time, as the state of the company and alterations in it m.iy require.
Sect. 120. An orderly book shall also be kept in each com]>any, by
the clerk, under the direction of the commander, and the proceei lings
of the company, orders received and issued, and exact details of drafts
and detachments, shall be recorded therein. Fines and forfeitures, with
the time when, and the oifence, neglect, default, or deficiency, for
whicli they were incurred, money collected b}^ him with the names of
the persons from whom collected, and all delinquencies and deficiencies,
shall be recorded in said book, which shall not be alienated from the
company, and shall always be open to the inspection of its officers.
Sect. 1"21. At the conclusion of each tour of camp duty, command-
ers of comjianies shall make correct dujjlicate returns of their several
companies for each day of the encani)>ment, upon which the commander
of the regiment or battalion to which the company belongs shall certify
that such company on each of tlie days of encampment well and faith-
fully performed the duties required by law, and the staff officer super-
vising the roll shall certify thereon that the number of officers, non-
commissioned officers, musicians, and privates therein reported as pres-
ent ami doing duty each day is correct. He shall deliver one of such
returns to the brigade-m.ajor or inspecting officer on duty in the camji,
and transmit the other, within ten days after said tour of camp duty,
to the office of the adjutant-general. The returns of com]ianies attached
to divisions or brigades, and not to regiments, shall be certified by the
commanding officers of divisions or brigades I'esjiectively, and by staff
officers of the division or brigade.
Sect. 1'2'2. The commander of a company, within ten days after each
tour of camp duty, .shall make a correct alphabetical payroll of his com-
])any, containing the names of the members who appeared, armed, uni-
formed, and equipped, and performed all the duties require<l on the days
of encamjjinent, and sho^\'iiig the duty done by each memlier, and trans-
mit the same, certified under his oath to be correct and true, to the
office of the adjutant-general. Such roll shall not contain the name of
a private who has done duty as a musician, and the whole number so
returned shall in no ease exceed the number allowed to his company by
sections fourteen and twenty-seven.
Sect. 123. A commanding officer of a company who neglects to
make the returns require<l by the two preceding sections, shall forfeit
twenty-five dollars, and for making a false return in any case, shall for-
feit one hundred dollar.?, to be prosecuted for by the officer to whom the
return should be made.
Sect. 124. The master of every regimental or battalion band shall,
within ten days after a parade thereof, made under order of the com-
mander of tlie regiment or battalion to which such band belongs, make
and transmit to the adjutant-general .an alphabetical list of the men who
appeared in uniform and jierfbrmed duty on such day, the last return to
be made on or before the tenth day of November ; upon which the
commanding officer to whom the band w'as ordered to report for duty,
Chap. 13.] militia — calling out in case of war, &c. 109
shall certify that the fluty was well and faithfully pei-formecl. For neg-
lect to make such return, the master shall foifeit twenty-five dollars, and
for making a false return shall forteit one hundred dollars, to be prose-
cuted for by the officer to whom the return should be made.
Sect. 125. On the last day of each tour of camp duty, commanders CommandcrB of
of regiments and battalions .shall make correct certified rolls of the field tof™k"r!tuni!s
and stall" officers of their several commands on duty for each day, speci- of officers.
fying the names, rank, and duty done, by each officer who appeared i^-!] oj^*'^ 5.
armed, uniformed, and equipped, on any day, and deliver the same to ilS'lgj'lJy'
the brigade-major or in.specting officer of the camp. Every officer neg- ' '
lecting to make such returns, shall forteit for each offence fifty dollars,
and for making a false return in any ease two hundred dollars, to be
prosecuted tor by the officer to whom the return should be made.
Sect. 126. Brigade-majors within twenty days after each tour of Brig-adc-majors
camp duty done by their respective brigades, or the regiments or bat- of ™i"adT;m<:i*
t.alions thereof^ shall make and transmit to the commander of the brigade field and staff
a correct return of such brigades, reporting therein the condition of the p^uaiTy.*'"
arms, accoutrements, and ammunition, of the several corps, with such "• ? .j^! §.<i2.
suggestions relating to the government of the militia, and the advance- isw^aisll li.
ment of order and discipline, as in his judgment may be required ; and jw-i, 3«r, §§ 1, 2,
also in like manner make and transmit to the commander of division
a certified roll of the general field and staff officers of their several
brigades, specifying the rank of and duty done by each one who appeared
uniformed and equip|)ed, ami peiformed duty on any day. For neglect
to make either of said returns each brigade-major shall forfeit seventy-
five dollars, and for making a false return in any case, three hundred
dollars, to be prosecuted for by the officer to whom the return should
be made.
Sect. 127. Commanders of lirigades shall within thirty days after Commanders of
each tour of camp duty performed by the troops under their respective J? "SnJs to "m'n '
commands, transmit to the commanders of their divisions a correct re- mandera of di
turn of tiieir resjiective l>rigades, as furnished by tl;e brigade-majors ^"''""•
under the preceding section. Commanders of divisions shall within commanders of
ten days after the receipt of such returns of britjades under their '''^'^lon to
i ^ . 1 rt. e 1 T 1 miiKt' returns to
respective commands, transmit to the office of the adjutant-general adjutant .;en-
correct returns of the state of their di\isions, as derived from such '^''"'"
brigade returns. Each ofticer, for neglect to make the returns required Penalties.
of him under this section, shall forfeit for each offence one hundred '^^ ' '"'^^ '~'
dollars, to be prosecuted for by the officer to whom the return should
be made.
Sect. 128. Commanders of divisions shall, annually, on or before Commanders of
the first day of November, make and transmit to the ofhce of the adju- makeou'roU of
tant-general a certified roll of the general field and staff officers in their officers,
respective divisions, specifying the name, rank, and duty done, by each isVi'C-'fs, §5.
one who has a]ipeared armed, uniformed, and equipped, and j)erfbiTiied g*^''i^i,*' ^ ^^•
duty, on any day. For neglect to m;ike such return, such commander
shall forfeit one hundred dollars, and for making a false return in any
case five hundred dollars, to be prosecuted for by the officer to whom
the return should be made.
CALLING OUT THE MILITIA IN CASE OF WAR, INVASION, nSrSUEEECTION,
TUMULT, OE RIOTS.
Sect. 129. When an invasion of or insurrection in the state is made Militia, how
or threatened, the commander-in-chief shall call upon the militia to cilseofinva-
repel or suiipress the same ; and may order out divisions, brigades, regi- ™"' *<=•
ments, battalions, or companies; or may order to be detached parts or mauderofdivis-
companics thereof, or any number of men to be drafted therefrom, and ion may order
.,» 1 1 '1 1 /*. • - 1 1 111 °"^ troops.
may cause omcers to be detailed, sufficient, with those attached to the
10
110 . MILITIA — CALLING OUT IN CASE OF WAR, &c. [ChAP. 13.
K. s. 12, § 130. troops, to orfjanize tlie forces. If such invasion, or insurrection, or im-
s^ass.'ll'x "' iiiinent danger thereof; in any part of the state is so sudden that the
See §§ 161, i«8. commander-in-chief cannot be informed and his orders received and
executed in season to resist or suppress tlie same, a commander of divis-
ion in sucli part of the state may order out his division, or any part
thereof, as the commander-in-chief might do.
Drafts. Sect. 130. When a draft from the miUtia is ordered, the non-com-
Offlcersde- missioned officers and privates, except so many as ofler to serve vohm-
i:. s. 12, 5 130. tarilv, shall be drafted by lot Irom the company, and the officers regu-
See §§ 101, 1U8. Yav\y detailed from the roster.
If company Sect. 131. If a Company without officers is ordered to march, or a
be'caiied'our'^^ draft or detachment is ordered therefrom, the commander of the regi-
offiiortobede- ment or battalion shall detail an officer to command, who shall have the
it!s.''i2, § 1.31. same authority to order them to a]ipear, to command them in the field,
s«! §§ 101, 168. or to make a draft or detachment therefrom, as the captain of such
company would have ; and shall be under the same responsibility.
I'onaity on sol- Sect. 1312. Every soldier so ordered out, detached, or drafted, who
^.appe'i^r'r&c"" *^°^® ""^ ajipear armed and equipped according to law, at the appointed
Soldiers to take time and place, or provifle a substitute, or within twenty-four hours pay
K. s!^i8,"§ 132. to the captain of his comjiany fifty dollars, shall be taken to be a soldier
Soc §§ 161, ms. absent without leave ; and each soldier, ordered out, detached, or drafted,
when so ordered, shall take with him provisions for not less than three
days.
Selectmen, &c., Sect. 133. The selectmen of a town and the mayor and aldermen
ria|e8'&c.,''in 0^ ^ ^'^7 ^o wliich men so ordered out, detached, or dratted, belong,
cortiiin cases, when required in writing by the commander of a regiment or detach-
Officer^respon- ment, shall provide carriages to attend them with further supplies of
iPs' i" « 133 provisions, and to carry necessary baggage, and provide necessary camp
See §'§ ili, !fii', equipage and utensils, until notified by the commanding officer to desist ;
§'s65 66.' 'oi. ^"'^ shall present their accounts, as provided in section one hundred and
i''i,§5. forty-nine. For any neglect by mayor and aldermen or selectmen under
this section, their place shall forfeit not less than twenty nor more than
five hundred dollars. The officer, to whom any articles above men-
tioned are delivered, shall be responsible that care is taken of the
same.
Troops, how or- Sect. 134. When there is in any county a tumult, riot, mob, or a
case of riot" &c. ^ody of men acting together by force with intent to commit a felony,
ijwo, 92, § 87. or to ofi'er violence to persons or property, or by force and violence to
ra?. - • break and resist the laws of the commonwealth, or when such tumult,
riot, or mob, is threatened, and the fact is made to aj^jiear to the com-
mander-in-chief, or the mayor of a city, or to a court of record sitting in
said county, or, if no such court is sitting therein, then to a justice of
such court, or, if no such justice is within the county, then to the sheriff
thereof, the commander-in-chief may issue his order, or such mayor,
court, justice or sheriff may issue a precept, directed to any commander
of a division, brigade, regiment, battalion, or coi-])s, directing him to or-
der his command, or a part thereof, (descriliing the kind and number of
troops,) to appear at a time and place therein sjjecified, to aid the civil
authority in su])pressing such violence, and supporting the laws ; which
precept, if issued by a court, shall be in substance as follows : —
Form of requi- Commonwealth of SLissACHUSETTS.
sitiou, &c. L. s.
rp^ C insert the officer^s ) * t> j- ( insert his
lo J .-,, i A B, commandme. » » o<r j
. ^ title. 5 C command.
Whereas it has been made to appear to our justices of our , now holden at
, within and for the county of , that ijiere state one or more of the
causes above mentioned) in our county of , and that military force is necessary
to aid the civil authority iir suppressing the same ; now therefore, we command you
that you cause, (Acie state the number and kind of troops required,) armed, equipped,
and with ammunition, as the law directs, and with proper officers, either attached to
Chap. 13.] militia — compensation. Hi
the troops, or detailed by you, to parade at , on , then and there to obey
such orders as may be given tlitra, according to law. Hereof fail not at youi' peril;
and have you there this writ, with your doings returned thereon.
Witness, L. S., Esq., at , on the day of , in the year
C D, Clerk.
And if the same is issued by a mayor, justice, or sheriff, it shall be
under his hand and seal, and otherwise varied to suit the circumstances
of the case.
Sect. 135. The officer to whom the order of the commander-in-chief Penalties for
or such preceyit is directed, shall forthwith order the troops therein men- ^hsobedience,
tioned to parade at the time and place appointed. If he refuses or k. 8.12,5135.
neglects to obey such order or precept, or if an officer neglects or re- l'^"' ^' '
fuses to obey an order issued in pursuance thereof, he -shall be cashiered See §§ lei, 168.
and jiunished by fine or imprisonment not exceeding six months, as a
court martial may adjudge. And a non-commissioned officer or soldier
neglecting or refusing to appear at the place of parade to obey an order
issued in such case, or any person advising or endeavoring to persuade
an officer or soldier to refuse or neglect to appear at such place, or to
obey such order, shall forfeit fiftj' dollars.
Sect. 136. Such troops shall appear at the time and place appointed. Troops to ap-
armed and cquip])ed, and witii ammunition as for inspection of amis, ]'m'S^9™s''29*'''
and shall obey and execute such orders as they may then and there see §§ 161, les.
receive according to law.
COMPENSATION.
Sect. 137. General, field, and commissioned staff officers shall Pay of general,
receive for each day's duty in camp, and according to the returns of the officer™'*''*'^
inspectins: officers of encampment, five dollars, and non-commissioned is49, 218, §r.
• 185*2 104 S 1
staff officers three dollars a day, to be ]iaid them from the state treasury, see§ to.'
upon the warrant of the governor and council, and according to a pay
roll made up in the office of the adjutant-general.
Sect. 138. Division-inspectors, brigade-majors or inspectors, and Pay ofinspect-
adjutants of regiments or liattalions, of volunteer militia, shall receive k^^s.*i2, § 123.
twenty-five dollars annuallv; adjutants of enrolled organized militia, is:!7, 240, § s.
twelve dollars annually. i^ii', ga'g 9.
Sect. 139. Every officer and soldier of the volunteer foot com- of members of
panics shall receive, for each day's duty in camp, two dollars and fifty bXisl'bow """^
cents. computed, dis-
Every member of a regimental or battalion band shall receive, for it4c,,*'2is, §§ 3, 4,
services performed in obedience to an order of his regimental or bat- f^;^ 50 s 2
tglion commander, at the rate of three dollars a day while on duty. iwa! 218, § 7.
Every member of a mounted company or band shall receive double ]J!|v»g;^*"
the pay allowed to such members performing duty on f"oot. 2 Met. 29c.
Such sums shall be computed by the adjutant-general on the com-
pany and banil pay rolls, made out, certified, and returned, under
sections one hundred and twenty-two, and one hundred and twenty-
four.
After such computation, such pay rolls shall be transmitted to the
mayor and aldennen of the cities and tlie selectmen of the towns in
which such companies and bands are situated, as provided in section
sixty-nine.
Upon receipt of the same, the mayor and aldermen, and selectmen,
shall draw their warrants upon their respective treasurers, directing
them to ]>ay the amount due to the persons named in such rolls, and
shall, annually, on or before the first day of December, under a penalty
of thirty dollars for neglect in so doing, remit such rolls to the adjutant-
general, with a certificate indorsed thereon, setting forth that a warrant
has l)y them been drawn on their respective treasurers, in favor of the
several persons whose names are recorded therein. Thereupon the ad-
jutant-general shall lay the same, together with his roll, prepared uuder
112
MILITIA COMPENSATION.
[Chap. 13.
Pay forfeited
for deficiency in
returuy. Not to
be received un-
less full duty is
perlbrmed, ex-
cept, &c.
1840,218, §§ 1,9.
1858, llXi, § 1.
T*ersonal eer-
vice requisite to
compensation.
Excuses not to
entitle to.
18«, 101, § 2.
Inspector-gen-
eral, expenses.
R. S. 12, § 128.
1846, 218, § 12.
Pay for travel
in attending ele-
mentary drills.
How pjiid.
1854, SOr, §§ 3, 5.
of detach-
ment on special
duty.
ISiO, 92, § 27.
1852, 104, § 4.
for travel in
attendiufj elec-
tions.
1854, 3Cr, § 9.
of members
of courts mar-
tial, &c.
of president.
of judg^e-ad-
vocate.
of marshal
and members.
of witnesses.
1855, 120, § 2.
Fees.
Pay not allowed
•niard, &c.
E. S. 12, § 124.
Relief to sol-
diers or their
families.
section seventy, of general, field, and staff officers entitled to pay,
before the auditor, and the governor may draw his wairaiit on the
treasury for such sums as may be necessary to pay such otKccrs and re-
imburse such cities and towns.
Sect. 140. The compensation ])rovided in the preceding section
shall be forfeited for default in making the returns required by sections
one hundred and twenty-two and one hundred and twenty-four ; and
no person shall receive com])ensation who does not remain in camp and
perform all duties required during the period of encamj^ment ; except
that a person who once a])pears and is excused from further duty by
reason of sickness, shall be entitled to compensation for the time he is
actually engaged in service.
Sect. 141. No officer or soldier in the volunteer militia sliall receive
the compensation provided in this chapter, unless he personally per-
forms the duties required bylaw; nor sliall excuses granted for absence
from or non-performance of military duty entitle the person excused to
receive such compensation.
Sect. 142. The adjutant-gener.al shall present his account for ex-
penses incurred in the performance of his duty as inspector-general to
the auditor of accounts for allowance.
Sect. 143. Each officer and soldier appearing at an elementary drill
sh.all receive for his necessary travel to and from the place of drill five
cents a mile not exceeding forty miles in all. The travel of every such
jjerson shall annually on or before the first day of October, be certified
and returned to the adjutant-general by the cominauder of his regi-
ment, battalion, or detached company ; and the sums due members of
companies therefor shall be comjiuted by the adjutant-general on such
return.-:, and be transmitted, paid, remitted, and reimbursed, as provided
in section one hundred and thirty-nine. The sums due other officers
shall be made up according to such returns, and paid as provided in
section one hundred and thirty-seven.
Sect. 144. When a detachment is ordered on speci.al duty, by the
commander-in-chief, or under section one hundred and thirty-four, each
member shall receive two dollars a day while in the performance of such
duty, and four cents a mile for travel.
Sect. 145. Officers obliged to go out of the city or town of their
residence to attend a military election, shall be allowed five cents a
mile, each way, for travel.
Sect. 14G. Officers composing courts martial, courts of inquiry, and
military boards, and witnesses attending before them, shall receive five
cents for every mile they necessarily travel, in going to and returning
from the place of trial, and the following sums for each day of attend-
ance : —
The president of a court martial, court of inquiry, or military board,
three dollars.
The judge-advocate of the same, four dollars ; which shall be in full
compensation, also, for all services of preparing papers before, and
making co]iies after, any trial, inquiry, or investigation.
The marshal and other members of such court or board, two dollars.
Each witness attending on such court, or board, one dollar and
twenty-five cents.
Fees for subpcenas, and service of them, shall be the same as in civil
cases.
No allowance shall be made for pay or rations for a military guard,
unless such guard is ordeixnl by the officer ajipointing the court ; nor
shall the above compensation be made to officers in actual service and
receiving pay.
Sect. 147. If an officer or soldier is wounded, or otherwise disabled,
or is killed, or dies of wounds received, while doing military duty, he,
Chap. 13.] militia — excuses, fines. 113
his widow, or children, shall receive from the general court just and K. s. la, § lae.
reasonable relief.
Sect. 148. The militia, while in actual service, shall receive the same Pay of troopn in
pay and rations as the regular troops of the United States ; and the see'§in7™'
rations shall be valued at twenty cents each.
Every non-commissioned officer and private who provides himself to those who
with a uniform and blanket when called into service, shall receive, {'o™j!ig''&"^'
monthly, in addition to his stated pay, as follows : every sergeant and
musician, lour dollars ; every corporal and private, three dollars and
seventy-live cents; and if he does not so provide himseU", he shall be to those with-
allowed, monthly, two dollars and tffty cents. . out u orms.
When the militia are discharged from actual service, they shall be when dis-
allowed jiay and rations to their respective homes, at the rate of fifteen R.'sf 5^,' f J27.
miles a day.
Sect. 149. All military accounts, including claims against the state Military ac-
for money expended in the transmission of military documents to and iirnvMamined,
from the department of the adiutant-rreneral, unless it is otherwise eiit'fied, and
specially provided by law, shall annually on or before the fifth day of h. s'. k, § 128.
January be transmitted to the adjutant-general and examined, and if j^j;!' .^.''^^ ^'
found correct, certified by him. Tliey shall then, unless it is otherwise KosoUes, 18*5,
specially provided by law, be presented to the state auditor for allow- see § si.
ance, and upon such allowance certified by him to the governor, shall
be paid to the persons to whom they are severally due, or to their
order, at the treasury of the commonwealth. And no military account
shall be certified by the adjutant-general, or allowed by the auditor,
unless presented to the adjutant-general for allowance within the time
prescribed by law.
EXCUSES.
Sect. 150. Excuses for the non-appearance of a soldier shall be made Excuses to be
to the commanding officer of his company, or the otfieer detailed to SlJiys'^ unless,
train and discipline the company, under section thirty, within twenty *f; ^ , ^ •
days after a training or other military duty, from which he has been formed of ex-
absent ; and on the delinquent's producing satisfactory evidence of his J"'*|*'i2 §§ m
inabiUty to appear, such officer may excuse him ; but no such officer 'J'-^,
shall receive an excuse for non-appearance, after the expiration of the 15 pieii.*'ij 7.
twenty days. No excuse shall avail such soldier, on a prosecution for s^" 5 isi.
the recovery of a fine or forfeiture, unless proved to have been made to
such officer before the expiration of the twenty days, unless the delin-
quent satisfies the court or justice before whom the case is tried, that it
was not in his power to make such excuse within the time. Such offi-
cers shall inform their clerks of all excuses allowed for non-appearance.
Sect. 151. No commanders of companies shall receive excuses for Deficiencies in
deficiencies of equipment. i?"^^"™'^^.
Sect. 15'2. When a person is entitled to exemption from military certain eondi-
duty, upon presenting evidence of the cause of his exemption to his JjoJJ'^n'^'','"?,^
commanding officer within or before a certain time as provided in excuses, unless,
sections ten, eleven, and twelve, and omits so to present such evidence, ^"^g jo § gg
it shall not avail him by way of excuse upon a prosecution for a par- 11 Mass. 456.
ticular absence or default, unless he makes his excuse to the com- ' **^' ^''
manding officer within twenty days after the training, or satisfies the
court or justice it was not in his power to make such excuse within the
time.
PEOSECTITIOX FOE FINES.
Sect. 153. Fines and forfeitures incurred by members of volunteer rines of mem-
companies, under their constitutional .articles of agreement, may be col- teer companies,
lected by such persons and disposed of in such manner, for the benefit i''^"' 2*0, § ».
of said companies, as a majority of the members thereof determine.
10* 15
114
MILITIA •
• FINES.
[Chap. 13.
Prosecution for
iiues.
K. S. 12,"§ 112.
I Mass. 44:i.
4 Mass. 2;j'J, 370,
558, 8ro.
6 Mass. JO'i.
II Mass. 4i«.
12 Mass. -.in.
I Pii-k. WJ.
3 I'i.'k. 2li3.
5 Tick. ISO.
II Pick. 355.
15 Piek. irO.
Hi Pick. 84.
lU Pick. 371), 530.
21 Pick. 330.
23 Pick. 54, 208.
24 Pick. ir2.
1 Met. 14.^.
Seo§s:i0,!)5, 117.
Form of iiilbr-
matiun.
Sect. 154. The clerk of each company after the expiration of twenty-
days, ami witliiii forty clays after the clay of parade or election of offi-
cers, shall in those cases where fines are to be collected upon his com-
plaint, make and subscribe an information against the oftendinsj soldiers
who have not been excused by the commander of the comjiany, under
section one hundred and fifty, or who have not, within the twenty days
aforesaid, paid to him the forfeitures they have incurred ; wliich" infor-
mation shall be left with some ju.stice of the jieace, or filed in some
police court, in the county m which the oflender resides. Such infor-
mation shall be in substance as follows : —
To A B, Esq., justice of the peace within and for the county of , or to the
justice of the police court, within and for
I, the subscriber, clerk of the company commanded by , do hereby give
information against the following person [or persons] who, being duly enrolled in
said company, and being duly notified to meet with said company, on the day
of , in the year , [for inspection or review, election of officers, special
duty, or as the case may be,] was guilty of the offences and did incur the forfeitures
set against his name :
JVajitrs.
A B, non-commissioned J
officer ; C D, private, i
Summons to be
issued witlliu
nine montlis,
giving: seven
days' notice.
Offences.
Forfeitures, Sums.
For unnecessarily neglecting to appear > , i- ^ ■. j
on said day, . . . . . . . .( has forfeited
EF,
GH,
IK,
LM,
' has forfeited
I For being deficient of a
' on said day,
' For being on said day guilty of com- "]
ing on to the parade with his arms i-has forfeited
>^ loaded, . . J
' For unnecessarily discharging his mus- ^
ket, [rifle, or pistol,] in going to, [or |
returning from, or on the place of] )-has forfeited
parade, without the orders of an
officer, J
- For leaving his guard, [section, pla- S
toon, or company,] without the leave Shas forfeited
of an officer J
[And in the same manner, substantially, all other offences are to be set forth agains
offending non-commissioned officers and privates :]
I, therefore, agreeably to my oath of office, and in compliance with the requisitions
of the law in this behalf, request you to issue a simimons, directed to the person named
in the above information, to appear before you, and show cause, if any he has, why it
should not be adjudged that he pay the forfeiture set against liis name, for the offence
which he is therein alleged to have committed.
Dated at , this day of , in the year
A B, clerk of the company commanded by
The justice or court shall file the same ; and, upon motion of the
clerk, shall, within nine months, and not afterwards, issue a summons
to each person informed against, to be served at least seven days before
the time .appointed for showing cause.
The summons, if issued by a justice of the peace, shall be in substance
as follows : —
Form of sum-
mons issued by
a justice.
[Seal.] To the sheriff of said
or either of the constables of the town of
county, or cither of his deputies,
, in the county aforesaid,
greeting :
In the name of the Commonwealth of Massachusetts, you are hereby required to
summon C D, of , in the county aforesaid, to appear before me, E F, one
of the justices of the peace for the county aforesaid, at , in , on
the day of ■ , at of the clock in the noon, then and
there to. show cause, if any he has, why judgment should not be rendered, that he
has forfeited for, [here insert the offence, and the time when and place where
it was committed.] Hereof fail not, and make due return of this writ and your doings
thereon, unto myself, on or before the said hour of the day of
Dated at aforesaid, the day of in the
year
E F, Justice of the Peace.
If issued from a police court, as follows : —
Chap. 13.] militia — fines. 115
ss.
The Commonwealth of Massachusetts. FormofBum-
[Seal.] To the sheriif of the county of , or either of his deputies, or either ^^.'''' P"""^
of the constables of the town of in said county, greeting ;
We command you to summon C D, of in said county, to appear before our
justices of our police court, to be holden at , within and for our , on
, then and there to show cause, if any he has, why judgment should not be
rendered, that he has forfeited for, [here insert the offence, and the time and
place wlicre it was committed.] Hereof fail not, and have you there this writ, with
your doings thereon.
Witness, W S, Esq., at on the day of in the
year
T P, Clerk,
[or, wifness my hand and seal at on the day of in the
year of our Lord
A B, Justice of said Court.
Wlien the person summonerl appears, he may plead that he is not Defendant may
guilty, anil tjive any spec-ial matter in evidence. plead not guii-
Upon the trial of such complaint, made by the clerk of a com- what shall be
pany, it shall be sufficient for the conqilainant to prove that he is com'nWuant to
clerk of the company ; for which pur])ose he shall produce his warrant prove,
as a non-commissioned officer, and prove the signature thereto of the
colonel or commanding officer of the regiment or battalion, and that at
the time of signing such warrant he was reputed to be and acted as
such colonel or commanding officer ; which shall be prima facie evi-
dence that such complainant was appointed a non-commissioned officer
by the captain or commanding officer of such company, and that a legal
return of such a])]iointmeut was made to the colonel or commanding
officer of the regiment.
He shall then show, upon the back of his warrant, a legal certificate Complainant to
of his ap])i)intinent as clerk, and qualification as such by taking the of°„ppointm™t
oaths required Ijy law. For which jmrpose he shall prove the signature and quaiiiica-
of the captain or commanding officer of such company, and that he is s'pick. 239.
such captain or commanding officer, by producing his commission as je''p''?^'*i|i
such ; i)iit if the clerk is appointed clerk pro tempore, his appointment
may be jiroveil by the records of the company.
He shall then produce the roll of the conijiany, and prove that the to produce
defen lant resideil within the limits of the company and was enrolled or cnii'stnunt^™^*
enlisted therein at the time he was notified of such meeting.
He shall then produce the order of the commanding officer of such toproduceor-
com])any to notify the said meeting or meetings thereof, and prove his meeting?'' ^
signature thereto, and that the defendant was legally notified of the
time and jilaee of such meeting or meetings.
If it is required by law that the order for such military duty shaU in to prove order
such case be given by any officer superior to the commanding officer of J^''™/!??pJJ'j','y
a company, then the orders of such superior officer, and all intermediate superior officer,
orders of officers transmitting the same to the commanding officer of
the company shall be proved, and that the persons purporting by said
orders to be such officers, are such ; for ^^■]lich jiurjiose, it shall be suffi-
cient to produce the transmitted written or printed copies of such orders,
and the regimental, battalion, or other last order, transmitting the same
to the commanding officer of the company ; to jirove the signature of
the proper officer to such regimental, battalion, or other last order,
transmitting the same ; and to prove that all the officers above men-
tioned are reimted to be such officers and act as such.
The absence or ofl:enceof the defendant shall then be proved, to show offence to be
that he is liable to the fine alleged to be incurred by him; and, in case p''"""'-
of absence, the burden of proof shall be upon him to show that his ab- Burden of
senee was necessary. The evidence above described shall be taken to p™"''-
be prima facie sufficient to support the comjilaint.
When it appears that a document or paper above mentioned can- Secondary evi-
116 MILITIA — FINES. [ChAP. 13.
dence, when re- not he produced, satisfactory secondary evidence thereof shall be re-
'"''"^- ceived.
Clerk, Ac, may Upon the hearing of such case the testimony of the clerk, or other
4 PiclT'sir person who was ordered to notify the whole or part of the company,
15 rick. i;6. shall be prima facie evidence of notice to the defendant and that he
neglected to appear.
Exemptions for The certificate of the surgeon of the regiment that the defendant
proved^' ^'"''' was unable to peifonu military duty at the time of his absence, shall be
Certificate of jtjr/wia facic evidence that he ought to be excused for a particular ab-
ment^evideuce^ sencc, if the ])rovisions of section one hundred and fifty have been
comjilied with ; but any permanent disability which renders the enrol-
ment of the defendant illegal, or such temporary excuse, may be proved
by parol.
Commanding The commanding officer of a company maybe a witness to prove any
offlcer^maybe f^^t whatever.
Execution, If tijg defendant makes default, or judgment is rendered against
w en issue . j^.^^ ^^^ j^^ neglects for two days after to satisfy the same, with legal
costs, execution shall be issued therefor; which execution, issued by a
justice of the peace, shall be in substance as follows, but if by a police
court, shall be so altered as to conform to the summons : —
Form of execu- ss.
tion- The Commonwealth of Massachusetts.
[Seal.] To the sheriff of said county, or either of his deputies, or cither of the con-
stables of the town of in the same county, greeting :
Whereas E L, clerk of the company commanded by in said county, on
the day of , before J D, Esq., one of our justices of the peace for ouf
county aforesaid, recovered judgment against T P, of , for the sum of
fine or forfeiture, and costs of prosecution, as to us appears
of record, whereof execution remains to be done : We command you, therefore, that
of the money of the said T P, or of his goods or chattels, within your precinct, at the
value thereof in money, you cause to be levied, paid and satisfied, unto the said E L,
the aforesaid sums, being in the whole ; and also, out of the money, goods
and chattels of the said T P, you levy twenty-five cents more for this writ, together
•with vour own fees ; and for want of such money, goods, or chattels of said T P, to
be by him shown unto you, or found within your precinct, to the acceptance of the
said E L, for the aforesaid sums, we command you to take the body of the said T P,
and him commit unto our jail in I!, and we command the keeper thereof accordingly
to receive the said T P into our said jail, and him safely keep, until he pay the full
sums above mentioned, with your fees, or that he be discharged by the said E L, or
otherwise, by order of law. Hereof fail not, and make return of your doings therein
unto our said justice, within twenty days next coming.
Witness our said justice at B, the day of in the year one
thousand
J D, Justice of the Peace.
Amendments. The complaint or summons may be amended in any stage of the pro-
Whon cSm-'"' cccdings witliout payment of costs ; and the defendant shall be allowed
piainant is not an adjournment Or continuance of the case, if justice requires it. The
liable for costs. ^^^^^ ^j^^jj ^^^^ j,p YvaUq to pay costs to a defendant in a case in which
the commanding officer of his company has certified, upon the informa-
AppealB not ai- tion of the clerk, his approval of the same. And no ai)}}eal shall be
in'S:^,' ^,''-,f ?'m allowed from any such judgment, unless. the forfeiture adjudged exceeds
ten dollars exclusive ot costs.
Complaints by A complaint by any other officer shall be prosecuted in the like man-
howVrosT' Jier so far as the same is a]ii)licable thereto, the forms being varied
cuted. accordingly ; and he shall prove his authority by producing his com-
K. s. 12, § 112. jjjjggjQj^ j^jj^i other competent evidence which may be necessary.
Imprisonment Sect. Ibb. No pcrsou shall be imprisoned upon an execution issued
ii" sfiS'i's ni upon ^ complaint and judgment described in the preceding section, for
a longer time than six days ; but shall at the expiration of that time be
discharged by the keeper of the jail to which lie is committed. The
judgment debtor shall remain liable for the amount of the judgment and
the costs of imprisonment ; and execution for the whole of the same
may be sued out against the property of such debtor. ■
Chap. 13.] jiilitu — courts martial. 117
Sect. 156. The clerk of each company shall retain to his own use Money collect
one-liulf tlie forfeitures so eollecteJ, and, ujion demand, pay the other howdispos'cd
half to the commander, who shall ijive his receiiit therefor, and expend o'-
• • Its !'■* 5 114
the same m defrayuig such expenses of the company as a majority of ' " "
the commissioned officers thereof judge necessary.
COURTS MARTIAL.
Sect. 157. All complaints upon which courts martial are ordered, Complaints on
shall be in writing and signed by the- com|)lainant, and shall clearly mlirtlai'are'or-
speeify the oifence, and the time when and the jilaee where it was com- d<!red._
mitted. Xo officer shall be tried by court martial for an offence committed Trial must be
more tliaii one year before the comijlaint, unless his absence or other y;'""?" >'<^'"'-
.... I." , 1^ ,. ... , . liy wliom
manliest impediment has preventetl a complaint within that time ; nor charges to be
on a charge ])referred by a soldier, unless for an oflence committed i/''s''"r'5 ns
while in the actual service of the state or of the United States, nor i!-«, 3(i?', § r.
unless such charge is preferred before such soldier has left the service. see§'1ra.^'
Sect. 158. Every officer to be tried by court martial shall be put Kespondentto
under arrest. The judge-advocate shall deliver to tlie accused a copy of copy of
the charges against him, and a notice of tlie time and place of trial, ten be delivered'' *°
days at least before the day of trial ; and if he objects and the court is sat- Court may ad-
isfied that he has not received the same, they shall adjoum, so as to allow kI's^'is, § no.
the time required to elapse, after the delivery of the notice and copies. ^<^^ § i'^-
Sect. 159. Courts martial shall consist of a president, judge-advo- Courts martial,
cate, not more than four nor less than three members, present at tlie o'^^^L"™ to con-
org.anization of the court, and a marshal ; and shall be holden between "iienheid.
the first diiy of December and the last day of May, in the dajtime. see^^i""^'.*™
There shall be only one general and one division court martial, in one
division, in one year.
General courts martial shall be appointed for the trial of all officers general, by
above the rank of captain, by the orders of the commander-iii-cliief issued "d'and'to'try*
to the divisions which in his opinion can most conveniently furnish "I'om.
members for the same; and he shall aii))oiiit a ])resident, not below the
rank of brigadier-general, and a marshal of said court.
Division courts martial shall be appointed for the trial of officers of division, by
and under the rank of captain, by the orders of eacli commanding offi- ed!and7y't"ry*
c.er of a division, in his own division, issued to the brigades, regiments, «bom.
battalions, and companies which, in his o]]inion, can most conveniently
furnish members for the same ; and he shall appoint a president, of the
rank of colonel or lieutenant-colonel, and a marshal.
Officers shall be detailed to sit upon courts martial, in manner follow- members of,
ing: major-generals, by the commander-in-chief, from the general ^"uomdctaiicd.
roster ; brigadier-generals and officers of any divisionary corps, by the
commanding officers of divisions, from the division roster ; colonels,
lieutenant-colonels, and majors, and officers of any company attached to
a brigade, by the commanding officers of brigades, from the brigade ros-
ter; captains and subalterns, by the commanding officers of regiments,
battalions, and other separate coi'ps. And when it a]ipear^ that an Provision in
officer detailed or to be detailed is or will be, for some sufficient cause, SiKcf is un-"^
imable to serve on a court martial, the officer detailing liiin, liaving sat- ^bie to serve.
isfactory evidence thereof, shall certify such inability to the officer
ordering the court martial, and shall at the same time detail the officer j,-,, (,„g j,„_p.
next in rotation on the roster. No senior officer, or suj)erior in rank to rioriu rank to
the president, shall be detailed. The officers ordered to detail meniliers to'be'cietai'ied'.
shall make returns forthwith to the officer aiipointing the court, wlio <>fflecrs ordered
111 ., ,.11 ^ ^ to detail, to
•snail transmit the same to the judge-advocate. m.ake return.
The ju<lge-advocate of each division shall, when ordered, attend .ludg-i^advoeate
general ami division courts martial within his division ; but when he is '°^""™'?,■„able
prevented by inability or legal impediment, the officer ordering the to attend.
118
MIUTIA-
-COURTS MARTIAL.
[Chap. 13.
If president
does not jittcnd.
If sufficient
number of
niombers do not
:meud, or are
not qmtlilied.
If judge-advo-
cate or marbu:U
is absent.
Person acting
as jndge-.i'lvo-
e iTc to continue
duriug trial.
OflBcers* rank.
See § 37.
Court may ad-
journ, when.
K. S. 12, § il7.
Members to be
sworn.
See § 172.
Oath of presi-
dent and mem-
bers.
Oatli of judge-
advocate.
Challenm!s,
how and when
made, and by
whom tried.
Certain causes
of challoni,'-!-,
wlien waived.
22 Pick. 501.
If accused is
absent, or with-
draws.
Witnesses sum-
moned must
appear.
Penalty.
Oath of wit-
nesses.
coTirt martial shall appoint some person to be jiulgc-aclvocate to the
s;;iiie.
If the officer apjiointeil jjresident does not appear at the opening of
the court, the officer iiighest in rank present shall be president.
When it is found that by reason of absence, challenge, or other cause,
the number of members of a general or di\isi()n court martial, (besides
the president,) qualified to act, is less than three, the court shall adjourn
for a suitable time ; and the president shall forthwith notify the fact to
the commanding officer of the division in which such general or division
court martial is held ; and such commanding officer shall himself detail
from the dixision a number of officers of the same rank as those befoi'e
detailed, sufficient to complete the court.
If no judge-advocate or marshal attends at the opening of the court,
the president shall ajipoint a judge-advocate or marshal, whieli ajipoint-
ment shall be entercil on the record and signed by him. Tlie judge-
advocate acting at the commencement of a trial, shall serve during the
trial, notwithstanding the attendance or appointment of any other per-
son afterwards.
Officere on a court martial shall rank by seniority of commission.
The court may adjourn, when necessary, before a judge-advocate
appears and before they are qualified.
Sect. 160. Before a court martial proceeds to the trial of an officer,
the judge-advocate shall administer to the president and membei-s, sev-
erally, the following oath : —
You, A B, do swear, that witlicmt pai-tiality, favor, fear, prejudice, or hope of
reward, you will well aud truly try the cause now before you, between the comnion-
"v\-ealth and the person [or persons, if more than one is accused, in the same complaint,]
to be tried ; and that you will not divulge the sentence of this court martial, until it
shall be approved or disapproved of, and that you will not discover the vote or opin-
ion of a member, unless required to give evidence thereof, as a witness, in due course
of law : So help you, God.
And the president shaU administer to the judge-advocate the follow-
ing oath : —
You, A B, do swear, that you will faithfully and impartially discharge your duties
as judge-advocate on this occasion, as well to the commonwealth as to the accused;
aud that you will not on any account at any time divulge the vote or opinion of any
member of this court martial, unless required to give evidence thereof, as a witness, in
due course of law : So help you, God.
No member shall be challenged by the government or the accused,
until the president, members, an<l judge-ailvocate, are sworn. Only one
member shall be challenged at a time, and the challenge shall be in
writing, stating the cause of it. The person challenged shall not vote,
but the president and other members shall try whether the challenge is
good.
Illegality or irregularity in the detail of a member of the court, shall
be good cause of challenge by either party ; b.ut shall be considered as
w.aived, unless the objection is taken at the time and in the manner
aforesaid.
If the accused neglects to appear and defend, or refuses to plead, or
withdraws in contempt of the court, the court may proceed to trial
and judgment, as if he had pleaded not guilty.
Persons summoned by the judge-advocate or a justice of the peace,
shall appear and give evidence before a court martial, (but the defend-
ant's witnesses shall have their fees first tendered to them.) and the
penalties for neglect to appear shall be the same, and the judge-advocate
may issue a capias, in like manner as in eriminal prosecutinns.
Before the witnesses testify, they shall be sworn by the judge-advo-
cate in the following form : —
Y'ou, A B, do swear, [or affirm,] that the evidence you shall give, in the cause now
in hearing, shall be the truth, the whole truth, and nothing but the truth : So help
you, God, [or, This you do under the pains and penalties of perjury, in case the wit-
ness aUirms.J
Chap. 13.] militia — courts martial. 1]9
When the adjutant-general is complainant for neglect or defoult in Evidence of de-
makinsi returns, he shall not be required to be jjresent, and his certiti- fiii* >" returus.
cate shall be sufficient prima facie e\idence that the return vas or was
not made, and that a cc)])y of a return is true.
Judge-advocates shall be the certifjing officers, to authenticate copies Copies of docu-
of papei-s and documents used before courts martial, courts of inquii y, ^'tuenttcated'."
or boards of officers, except papers or documents from the adjutant-
general's office, which shall be certified by liim ; but copies may be
proved as in other courts.
The statement of the complainant and the defence of the accused, Ail proceedings
and motions, arguments, and objections to the jiroceediugs by either b.ylii''™^^!; *°
]iarty, and the answers thereto, shall be submitted to the court in
writing; the evidence and proceedings in and out of the court, and
opinions of the judge-advocate on questions of law arising during
the trial, shall be put in writing by him. After the ]iroseeution and
defence are concluded, he shall state and sum up the evidence, ami give
his oj)inion to the court upon matters of law; which opinion, with the
judgment, he shall put in writiug.
When a question is to be decided, the judge-advocate shall receive votes, how
the vote of each member, beginning with tlie youngest and proceeding {hMs^n^qiured
to the eldest. The president shall not vote; and unless two-tliirds of to convict.
the members agree that the accused is guilty, he shall be acquitted. If
two-thirds of the members find him to be guilty, he shall be sentenced Sentence.
to be reprimanded in orders, or to forfeit a sum not exceeding two
hundred dollars, or to be dismissed from office, — either or all of them ;
and in the last case, he may be further adjuilged to be disqualified from
holding any military office during life or a term of yeare.
Courts martial may preserve order during their session; and whoever, Courts martial
in such court, behaves in a disorderly or insulting manner, or makes a prcserve'ordcr.
tumult or disturbance, may be arrested by order of the court, and con-
fined not exceeding twenty-four hours, and fined not exceeding five
dollars, — either or both. If the fine is not paid, the judge-advocate
shall issue a mittimus, forthwith to commit such person to prison in the
same manner and with the same cflect as u]ion executions from justices
of the peace in cases of prosecutions for non-payment of other military
fines and costs.
The record of the trial an^l judgment, with the papere used therein. Records, how
or copies thereof, certified by the judge-advocate, shall be authenticated alld'SusS
by his certificate and signature, and sealed up and transmitted by him t<?(i-
to the officer who ordered the eoui*t, who shall annex thereto his -Approval or
approval or disapproval of the same, and the reasons thereof in writing, sentence.*
and transmit the same as soon as may be to the office of the adjutant-
general, to be kept and preserved.
The judge-advocate shall also make, certify, and transmit the pay roU Pay roll.
of the court martial to the same office.
The officer ordering the court, and the party tried thereat, shall Copies to be
receive, upon request, from the adjutant-general, a copy of the record ; """^ '^ '
the party tried paying a reasonable sum for liis copy.
The judgment of disqualification may, after a]i])roval, be reversed in judgment of
whole or in part, by the commander-in-chief with the advice of the coun- m!iy"bi'rei"'"°
cil ; but all other parts of the sentence, when approved, shall remain in versed.
full force. _ K.s.i2,§n8.
Sect. 161. Every commissioned officer may be tried by a court mar- what offences
tial for the following oSences : - f^nV^^^^^
For unmilitary or unofficer-like conduct when on duty; k. s. 12, §119.
For neglect of any duty required in this chapter;
For disobedience of orders, or an act contrary to the provisions of this
chapter ;
For oppression or injury of any under his command ;
120 MILITIA BOARDS OF OFFICERS. [ChAP. 13.
What offences For a combination or attempt to break, resist, or evarle, the laws, or
may be tried by i i. i i • , i • • , i
court martial, lawtul orders given to a person, or advising any person so to do;
For insult to a superior officer in the exercise of his office;
For presuming to exercise his command while under arrest, in which
• case, if guilty, he shall be removed from office ;
For neglect or refusal, when commanding officer, to order out the
troops under his command, when required by law or ordered by hit;
superior officer;
For excusing, as commanding officer of a company, any person imder
his command, for deficiency or unnecessary absence, or after (he expu-a-
tion of the time allowed by law ;
For neglect or refusal to make a draft or detachment, when legally
ordered to do so ;
For neglect or refusal to cause prosecutions to be commenced for
fines, when it is necessary ;
For parading the troops under his command on days of election, con-
trary to the provisions of section one hundred and nine ;
For receiving any fee or gratuity, as surgeon or surgeon's mate, for a
certificate of inability to do military duty ;
For neglect, when detailed to train and discipline a company, [or] to
make complaint for neglect or violation of duty, as provided by law, or
for any other neglect lor which a commanding officer of the company
would be liable ;
For neglect or refusal to march, to make a draft, or for disobedience
to an order, in case of rebellion or insurrection, as provi<led in sections
one hundred and twenty-nine to one hundred and thirty-two, inclusive,
in which case the offender shall be cashiered ;
For refusal or neglect to obey a precept or order to call out the
militia, or an order issued in obedience thereto, in ease of tumult, riot,
or other cause, as provided in sections one hundred and thirty-four to
one hundred and thirty-six, inclusive, or for advising any officer [o/"]
[or] soldier to do the like ; in which cases, the offender shall be cash-
iered, besides being subject to fine and imprisonment, as provided in
section one humlred and thirty-five.
Fines imposed Sect. 162. Any fine not exceeding two hundred dollars may be
tifiiniowproa- inflicted on any officer, by sentence of a gener.al or division court mar-
ecuted. tial, as a part of, or the whole of, such sentence ; and such fines shall be
ju°ige-a7ivoe:ite, prosecuted by the judge -.advocate, or person a])pointed to act as such at
jj" g P.li'^j, jQ, the court martial, in .an action of tort, to the use of the commonwealth;
110.' "' ' and if .any judgment for costs is rendered against any judge-advocate in
See'll'iro irs. ^""'^ case, the officer to whom the execution upon such juilgment is
delivered, shall demanil jiayment of the execution of the treasurer of the
county in which such judgment is rendered, and the said treasurer shall
pay the s,ame, .and it shall be allowed to said county, iu the settlement
of said treasurer's account with the commonwealth.
BOARDS OF OFFICERS.
Boards of of- Sect. 163. The commander-in-chief, when in his opinion it is neces-
miiitary qu'c's^ ^'I'Ti '^^7 Call boards of officers for settling military questions, or for
tions. _ ^ other purposes relative to good order and discipline.
See § ITi.
GENEEAL AND DIVISION COURTS OF INQUIRY.
Courts of inqui- Sect. 164. General and division courts of inquiry shall consist of
dere!" Ac.*^ three officers and the judge-advocate of the division in which they are
U.S. 12, §121. held; and they may be ordered and organized in the like manner as
"^ '" courts martial, and, under the same regulations, may examine into the
nature of a transaction, imputation, or accusation, made against any
officer by an inferior.
Chap. 13.] militia — courts of inquirt. 121
Vacancies shall be filled as in courts martial. Vacancies.
The judge-advocate shall administer to each of the officers composing
a court of inquu-y, the follouiiig oath : —
You, A B, do swear that you will well and truly examine and inquire into the Oath of prosi-
matter now before you, without fear, favor, partiality, prejudice, or hope of reward : 'l'"' aud mcm-
So help you, God. '"^■"•
After which, the president shall administer to the judge-advocate the
following oath : —
You, A B, do swear that you will impartially record the proceedings of the court, Oath ofjudge-
and the evidence to be given in the case now in hearing : So help you, God. advocate.
Witnesses shall be summoned in the same manner, take the same witnesses,
oath, .and be examined and cross-examined by the parties in the same
way, as on trials before courts martial ; but the court shall not give their
opinions on the merits of the case, unless specially required so to do.
Judge-advocatos shall attend courts of inquiry in their division, in the judo-c-advocate
same manner as they attend courts martial ; and special judge-advocates of 'iinu^y""^^
for the court shall be appointed, in the same manner in like eases. The
proceedings therein shall be recorded, and, with the pa])ers and docu-
ments used therein, authenticated and transmitted, by the judge-advo-
cate, to the officer who ordered the court, in like manner as in courts
martial.
Sect. 165. No officer appointing a court martial, court of inquiry, or no guard, un-
board of officers, shall order a guard for the same, unless in his opinion J^i^^
it is necessary for their protection. See § ira.
KULES AND ARTICLES FOR GOVERNIXG THE MILITIA IX ACTTJAX SERVICE.
Sect. 1G6. The following rules and articles are cstabUshed and who shall be
declared to be in force, for governing the troops and militia of this com- ^J^™ '" '"^ **"''
mouwealth in actual service, in field, camp, or garrison. Sutlers and U- s. 12, § 137.
retainers to an army, drivers, conductors, and all persons receiving pay
or hire for services in or with the troops or militia in actual service in
the field, camp, or garrison, shall be taken to be soldiers, and governed
by these rules and articles.
Sect. 167. The offenders described in this section shall sufler death, offences pun-
or such punishment as m.ay be inflicted upon them by sentence of a ^'otherwise*''
court martial, according to the nature of the oflence : —
Art. i. An officer or soldier who begins, excites, causes, or joins in sedition
any meeting or sedition in a compan}', regiment, party, post, detach-
ment, guard, or body of soldiers, in the service of the commonwealth.
Art. n. An officer or soldier who, being present at or knowing of Not suppross-
such meeting or sedition, does not use his utmost endeavors to sujj[)ress {"of. ^'jy|[,'°°;,_
the same, or knowing of such intended meeting or sedition, does not forniatiouofit.
give information thereof to his commanding officer.
Art. iii. An officer or soldier who deserts. Desertion
Art. iv. An officer or soldier who advises another officer or soldier Advising deser-
to desert. ♦'""•
Art. V. An officer or soldier who misbehaves himself before an Misbehaving
enemy, runs away, or shamefully abandons a fort, post, or guard, or Ijj''"'^'^'^ "''^"
spe.aks or does any thing to induce others to do the like at such time.
Art. vi. An officer or soldier who abandons his jjost or colors, to Abandoning
plunder. po^*' *<=•
Art. vii. An officer or soldier who makes known the watchword to Making; known
a person not entitled, according to the rules and discipline of war, to ^''„[^}f4'ord°
receive it ; or who gives a parol or watchword different fi'om what he
has received.
Art. viii. An officer or soldier who forces a safeojuard. ]f"'^I;'i''° ^'^"''
Art. IX. An officer or soldier who knowingly harbors or protects an Harboring or
enemv, or relieves them with money, victuals, arms, or ammunition. re R\mganea.
" 11 16
122
MILITIA — ARTICLES OF WAR.
[Chap. 13.
Corresponding
with an enemy.
Compelling
commander to
surrender.
Sentence of
deatli.
R. S. 12, § 138.
Offences pun-
ished by cash-
ierinjjf, &c.
Usinof traitor-
ous, &c., words.
Neglecting to
march, &c.
Disobedience of
orders, &c.
Provocation to
flght a duel.
Giving or ac-
cepting chal-
lenge.
Upbraiding, &c.
Suffering per-
son to pass
guard to fight
duel, or not ar-
resting such
person.
Drunkenness
on duty.
Esciping from
arrest.
Behaving scan-
dalously.
Embezzling or
committing
fraud.
Selling or wast-
ing stores, .tc.
Not delivering
offender to
civil authority.
E. S. 12, § i:w.
Offences pun-
ished at dis-
cretion of court
martial.
Preceding of-
fences by sol-
diers.
Disrespect to
commanding of-
ficer.
DiBobedionce.
Violence to an
offiew.
Art. X. An officer or soldier who, directly or indirectly, holds cor-
respondence with, or gives intelligence to, the enemy.
Art. xi. Any officers or soldiers who compel the commander of any
garrison, post, fortress, or guard, to surrender or abandon it.
Art. xii. No person shall be sentenced to death except by a general
court martial, and in cases expressly mentioned in the foregoing articles.
Sect. 168. The offiinders described in this section shall be cashiered,
in addition to any other punishment which maybe lawfully inflicted : —
Art. xiii. An officer who uses traitorous or contemptuous words
against the authority and government of the United States, or the
authority, government, or legislature, of the commonwealth.
A7-t. xiv. An officer who refuses or neglects to march to the place of
rendezvous, to make a dr.aft, or to obey a lawful order, in case of war,
invasion, or insurrection, as provided in sections one hundred and
twenty-nine to one hundred and thirty-two, inclusive.
Art. XV. An officer who refuses or neglects to obey a precept or order
to call out the militia, or an order issued in obedience to such order,
contrary to the provisions of sections one hundred and thirty-four to
one hundred and thirty-six, inclusive, or shall advise or persuade any
other officer or soldier to do the like.
Art. xvi. An officer who uses any reproach or provocation to another,
in speech, gesture, or writing, to induce him to fight a duel.
Art. xvii. An officer who gives or sends a challenge to an officer or
soldier to fight a duel, or accepts such challenge when sent to himself,
or who is second in a duel, or promoter or carrier of a challenge.
Art. xviii. An officer who upbraids another for not sending, or for
refusing a challenge.
Art. xix. An officer commanding a guard, who knowingly and will-
ingly suffers a person to pass the same in order to fight a duel, or an
officer knowing or believing, or h.aving reason to believe, a challenge to
be given or accepted, carried, or promoted, by an officer or soldier under
his command, who does not immediately arrest and bring him for trial.
Art. XX. An officer found drunk on his guard or other duty.
Art. xxi. An officer under arrest, who leaves his confinement before
he is set at liberty by his commanding or other superior officer, or the
officer who confined him.
A7-t. xxii. An officer convicted of behaving in a scandalous or infa-
mous manner.
A?-t. xxiii. An officer, store-keeper, or commissary, embezzling or
committing a fraud concerning any property of the commonwealth, or
of an officer or soldier, besides being criminally liable for the same.
Art. xxiv. An officer selling, or designedly or through neglect wast-
ing the ammunition, military stores, implements, or other property, of
the commonwealth, in his care or possession.
Art. XXV. An officer who refuses to dehver over any other officer or
soldier to the civil authority, or who shelters or conceals any witnesses,
contrary to the provisions of section one hundred and seventy-one.
Sect. 169. The offenders described in this section shall suffer such
punishment, according to the nature of the offence, as may be inflicted
upon them by sentence of a court martial : —
Art. xxvi. A non-coinmissioned officer or private guilty of the offences
described in the last section, for which an officer would be cashiered.
Art. xxvii. An officer or soldier who behaves with disrespect or con-
tempt towards the commander-in-chief, the commanding officer of the
troops, or his own commanding officer.
Art. xxviii. An officer or soldier who disobeys the lawful command
of his superior officer.
Art. xxix. An officer or soldier who strikes his superior officer, or
draws or lifts up any weapon against him, or offers any violence against
him in the execution of his office.
Chap. 13.] militia — articles of war. 123
^r^ XXX. An officer or soldier who refuses to obey, or resists, or Resisting an of-
draws or lifts a weapon against, or offers violence to,' an inferior or supe- fcmpJs'to queii
rior officer of any rank attempting to part or quell a quarrel in his own » quarrel.
or any other eomjiany, regiment, or body of men, or who does not sub-
mit, when arrested by such officer, in such case, by the authority hereby
given.
Art. xxxi. An officer commanding in quarters, garrisons, or on a Not keeping
march, who does not keep good order, and, to the utmost of his power, ".[^abuseB^pro-
redress all abuses and disorders committed by those under his command, tectiug citizens.
or who, upon complaint made to him of any beating, ill treatment, riot,
or disquieting of any citizens or subjects of the United States, omits to
use means to punish the oftender or offenders, and cause re]>aratlon to
be made to the partj' injured, so far as the offiinders' pay will go.
Art. xxxii. Non-commissioned officers and privates found one mile Being one mile
from the camp, fort, or post, without leave in writing from the com- '^'"" '^'™''' '^°'
manding officer.
^?Y. xxxiii. An officer or soldier who is out of his camp, post, or Being absent
quarters, without leave fi'om his sujierior officer. without leave.
Art. xxxiv. A non-commissioned officer or private who docs not Xot retiring to
retire to his quarters or tent, at the beating of the retreat. quarters.
Art. XXXV. An officer or soldier who docs not repair at the time Not repairing to
fixed, to the place of parade or exercise, or other rendezvous apjiointed ies8'''&e""^' "°
by the commanding officer, unless prevented by sickness or evident
necessity, or who goes from guard or such place of rendezvous, without
leave from his commanding officer, before be is regulaiiy dismissed or
relieved.
Art. xxxvi. A sentinel who is found sleeping on his post, or who sentinel sleep-
leaves it before he is regularly relieved. '"=' •''^■
Art. xxxvii. An officer or soldier who occasions folse alanns in occasioning
camp, garrison, or quarters, by discharging firearms, drawing of swords, '"'^'^ alarms,
beating of drums, or by any other means.
Art. xxxviii. An officer or soldier who, without urgent necessity or Leaving pia-
leave of his superior officer, leaves his platoon, division, or guard. toon, &c.
Art. xxxix. An officer or soldier who does violence, or ofters any violence to per-
insult or abuse, to a person who brings provisions or other necessaries p°ovisi"nf!°°
to the camp, garrison, or quarters.
Art. xl. A person who uses menacing words, signs, or gestures, in Disturbing
presence of a court martial then sitting, or causes any disorder or riot '^""■■''' """"'ml.
to disturb their proceedings.
Art. xli. An officer or non-commissioned officer commanding a guard Refusing to re-
or provost marshal, who refuses to receive a ])risoner committed to his <:"™ I'^soi^r.
charge by an officer of the forces of this commonwealth, when a written
statement of the charge, signed by such officer, is delivered to him.
Art. xlii. An officer or soldier releasing a prisoner without iiroper Releasing pris-
authority, or suffering him to escape.
Art. xliii. Every officer or provost marshal to whom prisoners are Not reporting
committed, who does not within twenty-four hours after, or as soon as P"^""*"'*-
he is released from his guard, notify to his and to their commanding
officers, their names and crimes, and the names of the officers who com-
mitted them.
Art. xliv. Offenders guilty of crimes not cajiital, and of disorders Crimes not cap-
and neglects which officers and soldiers may be guilty of to the ])rejudice "iiicd" ''°"*P''"
of good order and military discipline, though not mentioned in the fore-
going articles.
Art. xlv. Officers who unnecessarily absent themselves from di\'ine officers .ibsent
service, or behave indecently or irreverently at any place of worshij), J.™"' 'l"'"" ''"'
shall, upon judgment of a court martial, be publicly and severely rejjri- R- *• i-', § ho.
manded by the president.
Sect. 170. Officers and soldiers shall be subject to the following fines: Fines.
124
MILITIA — ARTICLES OF WAR.
[Chap. 13.
Soldiers ab-
sent, .tc., dur-
ing diviue ser-
vice.
Profanity by of-
ficers.
Profanity by
soldiers
Fines by court
martial.
Fines stopped
out of pay.
R. S. 12, § HI.
General rules.
Officer wronged
by colonel.
Officer or sol-
dier wronged by
captain.
Public stores
secured.
Oldest officer to
coium.and, with-
out regard to
corps.
See § 37.
Offenders
against citizens
to be delivered
to civil authori-
ties.
Property of de-
ceased soldiers
secured.
Pay and ra-
tions.
E. S. 12, § 142.
Ai-t. xlvi. A nop-commissionecl officer or private, ab.senting liimself
from, or behavint; iinleeently and irreverently at, divine worsliip, not
exceeding one dollar, and for each oifence after the first to be confined
twenty-four liouns in addition thereto.
Art. xlvii. An officer guilty of proltme cursing and swearing, for
each otfcnce, two dollars.
A)-t. xlviii. A non-commissioned officer or private guilty of profone
cnrsing and swearing, for each oftence, not exceeding one dollar.
Art. xlix. A fine, not exceeding two hundred dollars, may be inflicted
by a court martial, as a part or the whole of the sentence ; and so much
of the same as cannot be stopped out of the pay of the offender, shall
be recovered as provided in section one hundred and sixty-two.
Art. 1. All fines may be stopped out of the pay of the offender; and
the field officers of every regiment may ajjpoint some suitable person, in
the regiment, to receive all fines incurred for any breach of these articles,
and may direct the same to be properly applied to the relief of the sick,
wounded, or needy soldiers of such regiment ; and the receiver shall
account to such officers for all sums .so received.
Sect. 171. The follo\\'ing rules shall also be observed in actual ser-
vice : —
Art. li. If an officer thinks himself wronged by his colonel, or the
comman<ling officer of his regiment or battalion, and is, upon due a])pli-
cation made to him, refused redress, he may complain to the commander-
in-chiet| or commander of the forces in service, who shall examine the
case and see that justice is done.
Art. \u. If an inferior officer or soldier thinks himself wronged by
his captain, or the commanding officer of his company, he may com])lain
to the commanding officer of his regiment or battalion, who shall con-
vene a regimental court martial, for tlie purpose of doing justice to the
complainant ; from which either party may appeal to a general court
martial ; but if the a])peal is vexatious, the party appeaUng may be pim-
ished at the discretion of the court martial.
Art. liii. Public stores taken from the enemy shall be secured to the
use of the commonwealth.
A)-t. liv. When different coi-ps of the same or different arms of foot,
or horse and foot, join or do duty together upon marches, guards, or in
quarters, or camp, the oldest officer by commission shall command, with-
out respect to corps, and give the orders necessary to the service.
Art. Iv. When an officer or soldier is accused of a capital crime, or
of h.aving used violence, or committed any offence against the person
or jiroperty of any citizen or subject of the United States, such as is
punishable by the known laws of the United States, or of the state
where it is committed, the commanding officer and the officers of every
army, detachment, regiment, battalion, or comp.any, to which the accused
belongs, upon ajiplication duly made by or in behalf of the party injured,
shall use their utmost enrleavors to deliver over the accused to the civil
magistrate, .and to aid the officers of justice in apprehending and securing
the accused to bring him to trial. And if any officer wilfully neglects
or refuses, upon such ajiplieation, to deliver over the accused, or to aid
the officers of justice, or detains, shelters, or conceals, any witnesses in
a case, he sh.all be punished as provided in section one hundred and
sixty-eight.
Art. hi. When an officer or soldier dies or is killed in the sen'ice
of the commonwealth, his commanding officer shall order some suitable
person to secure all Ids ]u-o])erty and effects, and to take an inventory
of them in the ])rcsence of two commissioned officers, who shall attest
the same ; and to preserve said effects and inventory until they are
demanded by his legal re)>rcsentative.
Art. Ivii. The pay and rations of troops in actual service shall be
such as provided by section one hundi-ed and forty-eight.
Chap. 13.] militia — articles of war. 125
Sect. 172. Courts m.irtial in actual service shall be ordered and held, Courts martial
and shall jjroceed, in the same manner as the militia coui-ts martial pro- vlcef&cl ^'^'^"
vided in sections one hundred and fifty-seven to one liundred and sixty-
five, inclusive, except so far as the same are repugnant to the follo^ving
regulations : —
Art. Iviii. When an officer or soldier commits an offence deserving Arrests,
punishment, if an officer, he shall be put under arrest and confined to
his quarters, and his sword shall be taken from him liy the commanding
officer; and if a non-commi^teied officer or soldier, he shall be impris-
oned until he can be tried l^re court martial or discharged by proper
authority.
Art. lis. No officer or soldier under arrest and imprisoned shall con- imprisonment
tinue in coufinemcnt more than eight days, or until a court martial can ^^''^^^"'■^■
be convenienth' assembled.
Art. Ix. A general court martial may be ordered by the general com- Gencr,ai nnd di-
manding any sep.arate army in the field, garrison, or quarters, as well as Jijanffb"^
by the commander-in-chief; and a division court martial by a major- whom ordered,
general, or by a commanding officer of a division, as organized for field
service.
^•Irt. Ixi. A general court martial in actual service shall consist of of whom gon-
not less than thirteen commissioned officers ; and the president shall not ffl* S""!^' """''
be the commander-m-chiei, nor the commandmg officer oi the army, sist.
detachment, or garrison, where the offender is tried, nor under the rank
of a field officer.
Art. Ixii. Division courts martial shall consist of not less than nine, Birisioo and re-
and regimental courts martial, of not less than five officers, when that m^™ia^ courts
numl)er can be conveniently assembled, nor less than three in any case.
Art. Ixiii. Regimental courts martial shall not have the power to try power of regi-
conuuissioned officers, but they shall be tried by general or division mental-
courts martial, according to their rank ; nor shall they inflict any punish-
ment heavier than a tine equal to one month's pay, or than one month's
imprisonment.
Art. Ixiv. An officer commanding a fort, castle, quarters, or a body Post and de-
of men composed of detachments from different regiments, or of inde- marti^"* *"""*
pendent companies, may assemble courts martial like regimental courts
martial, and with the same powers.
Art. Ixv. When the matters to be examined are peculiar to the troops Courts martial
of a ])articular arm, the courts martial shall be composed, as far as pos- cor^*'""'"
sible, of officers of that arm.
Art. Ixvi. No officer below the rank of captain shall sit at the trial Rank of mcm-
of an officer of the rank of field officer. nwrtfah"""^
^;-;. Ixvii. No court martial shall sit except between the hours of Time of holding
eiglit in the morning and three in the afternoon, except in cases which court martial,
require an immediate example.
Art. Ixviii. Members of courts martial belonging to different corps Eank in court
shall take rank according to seniority. S(xr§ 37.
Art. Ixix. The judge-advocate of the division in which the offence Judge-advo-
was committed, or some other judge-advocate, or, in their absence, some ''''''^'
suitable person, shall be appointed to be judge-advocate of the court,
by the officer ordering the same.
Art. Ixx. The judge-advocate shall administer to the president and
each member of the court, the following o.ath : —
You swear, that you ■will well and truly try and determine, according to your evi- Oath of presi-
dence, the matter now before you, between the Commonwealth of Massachusetts and ''cnt and mem-
the prisoner to be tried ; that you will duly administer justice, according to the rules
and articles for governing the troops of the said commonwealth, without partiality,
favor, or atfection, and if any doubt shall arise, which is not explained by the said arti-
cles, according to your conscience, the best of your understanding, and the custom of
war in like cases ; that you will not dividge the sentence of the court until it shall be
approved by the commanding officer ; and that you will not, upon any account, at any
11*
126
MILITIA ARTICLES OF WAR.
[Chap. 13.
Oathofjudge-
adyocate.
Witnesses ro-
fiising^ to appear
and testify.
Oath of wit-
nesses.
Votes in court
martial ; two-
thirds necessa-
ry to capital
sentence.
Proceeding's to
be transmitted
to commanding
officer.
Pay may be sus-
pended.
Pardon and mit-
igation of pun-
ishment.
K. S. 12, § 143.
Construction of
" soldier" and
"battalion."
E. S. 12, §§ 102,
141.
Penalty on civil
officers.
1840, »2, § 10.
*' Selectmen "
to include
" mayor and al-
dermen."
E. S. 12, § 143.
time, disclose or discover the vote or opinion of any particular member of the court
martial, unless required, by a court of justice, to give evidence as a witness, in due
course of law : So help you, God.
The president shall then administer the following oath to the judge-
advocate : —
You, A B, do swear, that you will faithfully and impartially discharge your duties
on this occasion, to the commonwealth as well as to the accused, and that you will
not, upon any account, at any time whatsoever, divulge any vote or opinion of any
member of this court martial, unless required, b^a court of justice, to give evidence
thereof as a witness : So help you, God. '^H
A)-t. Ixxi. Persons called to give evidence before a court martial,
who do not appear, or who refuse to testify, without legal excuse, shall '
be punished at the discretion of such court martial.
Art. Ixxii. Witnesses shall be examined upon oath administered by
the judge-advocate, in the form prescribed by section one hundred and
sixty.
Art. Ixxiii. Meinbors of a court martial shall vote, beginning with
the youngest, and sliall give judgment by a majority of voices ; but no
sentence of death shaU be given, unless two-thirds of the members
concur therein.
Art. Ixxiv. No sentence of a court martial shall be carried into exe-
cution, until the proceedings and evidence, documents, papers, and aU
matters in and concerning tlie same, are transmitted in the manner pro-
vided in section one hundred and sixty, to the commanding officer of
the army, station, camp, or ])ost, where the court martial is held, and he
approves the same, and orders it to be earned into execution.
Art. Ixxv. When a court martial sentences an officer to be sus-
pended, it may also suspend his pay and emoluments.
Art. Ixxvi. Every officer having power to order a general court mar-
tial, may pardon or mitigate any sentence of the court, except sentence
of death and cashiering ; and he may suspend the execution of these,
until tlie commander-in-chief is informed thereof; and he with the ad-
vice and consent of the council, may pardon or mitigate the sentence.
Sect. 173. In this chapter, the word " soldier " includes company
musicians and all persons in the volunteer or enrolled militia, ex-
cept commissioned officers; and the word "battahon" may include
squadron.
Sect. 174. Civil officers named in this chapter, neglecting or refiis-
ing to obey its provisions, shall, except as otherwise si)ecially provided,
forfeit not less than twenty nor more than five hundred dollars.
Sect. 175. The provisions of this chapter concerning the powers
and duties of the selectmen of towns, shall be construed to include the
mayor and aldennen of any city.
Chap. 14.]
STATE OFFICERS.
127
TITLE V.
OF CERTAIN STATE OFFICERS AND MATTERS OF FINANCE.
Chapter 14. — Of certain State Officers.
Chapter 15. — Of the Auditor, Treasurer, Land Agent, and Matters of Finance.
Chapter Iti. — Of the State Board of Agriculture.
CHAPTER 14.
OF CERTAIN STATE OFFICERS.
governor, lieptenant-governor, a^d
councillors.
Section
1. Salary of gfovemor.
2. Compousation of lieutenant-governor and
councillors.
SECRETARY.
3. Secretary, ealnry of, &c.
4. clerks of, and their salaries. Messenger.
5. VThen secretary is disabled, &c., deputies
may act.
6. Secretary to be keeper of state seal. Certi-
fied copies to be evidence.
7. to give certificates for release of im-
pressed seamen.
8. ehall issue passports to citizens of any
color.
9. to furnish blanks to certain officers.
10. returns to, of moneys received by certain
officors, &c.
11. Clerks ofcourts to make returns of criminal
cases to secretary.
12. Trial justices, <tc., to make like returns.
13. Details of returns, under two preceding sec-
tions.
14. Secretary to prepai'e full abstracts of re-
turns.
15. Penalty on officers for neglect,
ATTORNEY-GENERAL AND DISTRICT- ATTOR-
NEYS.
16. Attorney-general, salary of, and clerk hire.
17. to appear for commonwealth in S. J. C,
&c.
18. to file informations in certain cases.
19. to advise and assist district -attorneys in
certain cases.
20. to enforce application of fimds for public
charities, and prosecute corporations, &c.
21. to attend sessions of legislature, and give
opinions if required, &c.
22. to consult and advise with secretary,
treasurer, &c.
2.3. to make annual reports to legislature.
24. to receive money for contingent expenses
in civil actions, &c.
Section
25. In absence of attorney-general, or district-
attorney, court may appoint, &c.
26. Prosecuting officer not to receive fees of
prosecutors, nor be attorney in case, &c.
27. Attorney-general to account for fees.
28. Districts for administration of criminal law*
29. District-attorneys, salaries.
30. vacancies in office of, how filled.
31. general duties of.
32. Assistant district-attorney for Suffolk.
33. District-attorneys may iutcrchange dutiea.
notaries public.
34. Notaries may administer oaths.
35. on death of, their records to be deposited
in office of clerk of the courts.
36. Penalty for neglect in case of resignation,
&c.
37. on executors of notaries for neglect.
38. Records of notaries, penalty for destroy-
ing, &c.
.39. clerks of courts to receive and take charge
of records.
COJIMISSIONERS, &C., TO ADMINISTER OATHS
TO PUBLIC OFFICERS.
40. Commissioners, Ac, to administer oaths
to public officers.
COM51ISSIONERS TO TAKE DEPOSITIONS, &C.,
IN OTHER STATES.
41. Commissioners in other states.
4-2. to be sworn, file signature and impression
of seal, Ac, with secretary.
43. powers and duties of.
44. secretary to furnish forms to.
COMMISSIONERS TO TAKE ACKNOWLEDGMENT
OF DEEDS, &C., IN FOREIGN COUNTRIES.
45. Commissioners in foreign countries.
46. to be sworn, &c.
47. powers and duties of.
128
GOVERNOR, &c., SECRETARY OF COMMONWEALTH. [ChaP. 14.
GUAKDIANS AND TKEASURERg OF INniAXS.
Section
48. Guartliana, &c., of Indians, to have ac-
counts approved — may be removed, &c.
SEKGEANT-AT-AUM3.
49. Sergeant^at-arms, bow appointed, removed,
&c.
50. salary and bond of.
51. 52. general duties of.
53. to preserve state house, &c., from injury.
54. to appoint door-keepers and assistants,
subject, &c.
55. Watchmen, appointment of.
6(5, 57, 58. duties of.
Section
d'.K AVatchmen, salaries of.
(iO. Appoiutmeut of tireraen.
01. Sergeaut-at-anns, &c., to receive no fee,
COMMISSIONERS ON REPAIRS OF THE STATE
HOUSE, &C.
62. Conunissionei-8 on state house to have
charge of appropriations, &c.
MESSENGER TO THE GOVERNOR AND COUNCIL.
63. Messenger and assistant, appointment and
salaries of.
04. duties of.
Salary of gov-
ernor.
E. S. 13, § 2.
1854, SOS, § 1.
See Ch. 15, § .36.
Compensation
of lieutenant-
governor and
councillors.
1858, 78, §§ 1, 2,
3,4.
1859, 7.
GOVERNOR, LIEUTENANT-GOVERNOR, AND COUNCH-LORS.
Section 1. The governor shall receive out of the treasury a salary
of thirty-five hundred dollars a year, and shall be entitled to no fees or
perquisites of office.
Sect. 2. At the close of'each session of the council, the lieutenant-
governor and councillors shall be p.iid as follows : for attendance at the
regular session held during the animal session of the legislature, the
Ueutcutant-govenior, six hundred dollars, and each councillor, three
hundred dollars ; for attendance at each subsequent session, the lieuten-
ant-governor, six dollars a day, and each councillor, three dollars a day;
and for travel once in each session, one dollar for every five miles to
and from their several places of abode.
Secretary, sala-
ry of, &c.
K. S. 13, § 9.
1854, 131, § 1.
1859, 221, § 1.
SeeCh. 15, §30;
Ch. 157, § 12.
clerks of, &c.
Messenger.
K. S. 13, §§ 12,
13.
1853, 275.
1854, 131, § 2.
1855, 140, § 1.
1857, 209, § 1.
1859, 133, 269.
See Ch. 15, § 30.
When deputies
may act.
E. S. 13, § 8.
Amend, const,
art 17.
Secretary to
keep state seal.
Certified copies
to be evidence.
K. S. 13, § 5.
to give certifi-
cates to release
seamen.
R. S. 13, § 10.
to issue
passports to
citizens of any
color.
1857, 224.
to furnish
blanks.
1851,216, § 1.
1852, 289, § 4.
SECRETARY.
Sect. 3. The secrctaiy of the commonwealth shall receive a salary
of two thousand dollars a year. He shall exhibit to the governor and
council a quarterly return, under oath, of all fees of office received by
him, and pay the s.ame into the treasury.
Sect. 4. He may employ in his office two permanent clerks, the first
at a salary of fifteen hundred dollars a year, and the second at a salary
of fourteen hundred dollars a year; and such additional clerical assist-
ance as may be necessary for the despatch of public business, at a salary
not exceeding eleven hundred dollars a year for each jierson employed.
He may also employ a messenger at a salary of eight hundred dollars a
year.
Sect. 5. When the secretary by reason of sickness, .absence, or other
cause, is disabled from executing the duties of his office, his deputies
shall execute the same until such disability is removed, or a secretary is
chosen or appointed as provided by the constitution.
Sect. 6. The secretary shall have the custody of the state seal;
and copies of records and papers in his office, certified by him and
authenticated by the state seal, shall be evidence m like manner as the
originals.
Sect. 7. He shall without charge give any certificates that may be
necessary to procure the release of American seamen impressed on
board of the ships of a foreign nation.
Sect. 8. He shall issue ^o any citizen of this state, of whatever
color, who may apply therefor, a jiassport or certificate under the state
seal setting forth the .age and general description of the applicant, and
that he is a citizen of the Commonwealth of Massachusetts.
Sect. 9. He shall annually in Se]itcmber furnish to the officers men-
tioned in the three following sections blank forms of the returns
required by said sections, with the three following sections printed
thereon.
Sect. 10. Justices of police courts, trial justices, clerks of courts,
Chap. 14.] secretary op the commonwealth. 129
registers of prob.ite and insolvency, and other officers receiving costs, Returns to sec
fees, tines, forfeitures, or other moneys, which they are required to jjay pys"reMivca'by
or account for to tlie treasurer of the commonwealth, treasurers of «'f»'"" offices,
counties, or other ])ublic authority, sliall, on or before the fifteenth day i)sii,2ifi, § i.
of October annually, return to the secretary under oatli a true account Jj;,f:; ^o"' ^ '■
of all sucli moneys received by them by virtue of their office, for the ii>5.s' 41!!
year ending on the last day of the preceding month, stating what dis]!o- Jtw, lu-il Ll
sition has been made thereof. As soon as the returns are received, the
secretary shall transmit them to the auditor, who shall examine and
report upon the same to the legislature.
Sect. 11. Clerks of courts shall annually, on or before the fifteenth clerks of cmirtu
day of October, make a return to the secretary, in relation to all 01 ;"j'n,i'nai""'
criminal cases commenced before tlie grand jury, which have been jaend- e.nscs to scerc-
ing in their several counties during the year ending on the last day of the '"^"
preceding month, and a like return of all criminal cases coming to their
several courts by appeal from police courts and trial justices, and so
pending.
Sect. 12. Trial justices, and the clerks, or where there are no clerks Trial juBtices,
the justices, of police courts, shall annually, at the time and for the uJ;,'J°t™„g^
period mentioned in the preceding section, make a like return of all
criminal cases in which such justices or courts have exercised final
jurisdiction, and of all such cases in which they have exercised jurisdic-
tion not final.
Sect. 13. The returns under the two preceding sections shall specify, Details of re-
as far as a):)i)lieable, the following details : Number of prosecutions J,".™cdiu'"sr™
pending at the beginning of the year — Number on file — Number com- tious.
menced within the year — Pending cases disposed of within the year —
Bills found — No bills — Placed on file — On file at end of year — Pending
at end of year — Plea guilty — Plea nolo contendere — Plea not guilty —
Verdict guilt)' — -Verdictnot guilty — Disagreement of jury — Nunilier of
sentences — To state prison — To jailor liouse of correction — To alms-
house— To state reform school — Fine and imprisonment. — Fine — Nol.
pros'd or discharged on payment of satisfaction — Kol. proti'd or quashed
for informality — Carried to supreme judicial court — Defaulted before
trial — Defiulted after verdict — Not arrested — Costs accrued a\ ithin the
year — Costs of the year paid — Costs of former jears paid. In said re-
turns offences sliall be classified as follows : Against the person felo-
niously— Against the person not feloniously — Against property —
Against the currency, and criminal frauds — Against public justice —
Against the public peace — Against chastity, decency, and morality —
Against public policy — Other offences.
Sect. 14. From said returns, the secretary shall annually prepare secretary to
full and complete abstracts and tabular statements of the criminal busi- st'nlrt'^of re"-
ness of each county and of the commonwealth for the year next preeed- turus.
ing, and a]ipend the same to the annual report of the attorney-general.
Sect. 15. Any officer who neglects to make the returns required of Penalty,
him by sections ten, eleven, and twelve, shall fbifeit two hundred i^2!289l|3!
dollars.
attoknet-geneeal and district-attoenets.
Sect. 16. The attorney-gener.al shall receive a salary of twenty-five Attomey-^en-
hundred dollars a year, and a sum not exceeding one thousand dollars md'i.re'rk'iiirc.
annually for such clerical assistance as the business of his office may iwu, iso, § 12.
rponirp Kesolve.ISSO.oa
reqmie. See ch. 15, § 36.
Sect. 17. lie shall appear for the commonwealth, in the supreme to appear for
judicial court, when held by three or more justices, in all prosecutions 'TOUtMn"™
for crimes ])unishable with death; and in the trial and argument, in ■''• •,'*^:^s-.2 „
said court, of all causes, criminal or civil, in which the commonwealth a'cush 'is. "
IT
130
ATTORNEY -GENERAL AND DISTRICT -ATTORNEYS. [ChAP. 14.
Attoniey-g^en-
eral to file in-
formations in
certain cases.
18i9, ISO, § a.
to advise dis-
trict-attorneys.
I8W, l.S(i, § 4.
1850, 40, § 1-
to enforce ap-
plication of
funds for public
charities, ttc.
1849, ISO, § 8.
5 Cush. Xiij,
to attend ses-
sions of le^^isla-
ture and ^ive
opinions, &c.
1S49, 180, § 0.
to advise sec-
retary, &c.
181U, IS i, § 7.
18o8, 85.
185U, !U.
to make an-
nual reports to
legislature.
1S4U, 180, § 4.
See Cli. 4, § 10.
to draw
money for ex-
penses in civil
actions, &c.
ISO), 28, § 1.
when court
may appoint,
&c.
K. S. i:;, § 40.
1S59, Itk'..
4 Gray, 14r.
Prosecuting of-
ficers nut to re-
ceive fees, &c.
K. S. 13, § 40.
4 Gray, 147.
Attorney-gen-
eral, &c., to ac-
count for fees.
U. S. i:i, § 45.
Districts for ad
ministration of
eriniiiiul law.
K. S. 1.), §§ 34,
.35.
IS4S, 10, § 1.
ISoi, 196.
1855, 275.
Di8t.rict.-attor-
neys, salaries
of.
is a party or interested ; and in such causes in any court or tribunal, when
required by the governor or either branch of the legislature.
Sect. 18. He may when in his judgment the Interest of the state
requires it, file and prosecute informations, or other process, against per-
sons who intrude on the lands, rights, or property, of the comnion\\ealth,
or commit or erect any nuisance thereon.
Sect. 19. He shall consult with and advise the district-attorneys, in
matters relating to the duties of their offices ; and when in his judgment
the interest of the state requires it, shall assist them by attending the
grand jury in the examination of any case in which the party accused
is charged with a capital oft'ence.
Sect. 20. He shall enforce the due application of funds given or
appropriated to public charities within the state, prevent breaches of
trust in the administration thereof, and when necessary, shall prosecute
corporations which fail to make to the legislature the returns required
by law.
Sect. 21. He shall, when required by either branch of the legisla-
ture, attend during their sessions, and give his aid and advice in tlie
arrangement and preparation of legislative documents and business ;
and shall give his opinion ujton questions of law submitted to him by
either branch thereof, or by the governor and council.
Sect. 22. He shall, when required by tlie secretary, treasurer, adju-
tant-general, auditor, or land agent, consult and advise with them re-
spectively, on questions of law relating to their official business.
Sect. 23. He shall annually make a report to the legislature of the
cases argued, tried, or conducted, by him in the supreme judicial and
superior court during the preceding year, with such other information in
relation to the criminal laws, and sucli observations and statements, as
in his opinion the criminal jurisprudence and the proper and economical
administration of the criminal law warrant and require.
Sect. 24. On his representation, the governor with the advice and
consent of the council may draw his warrant on the treasury to an
amount not exceeding three hundred <lollars in one year, for the contin-
gent expenses of civil actions in which the commonwealth is a party or
has an interest, for which sum he shall annually in October account to
the governor and council ; and he shall state the amount so expend-
ed in his annual report to the legislature.
Sect. 25. The supreme judicial court and the superior court may at
any term, in the absence of the attorney-general and district-attorney, ap-
point some suitable person to perform the duties by law required of them.
Sect. 26. No prosecuting officer shall receive any fee or reward from,
or in behalf of, a prosecutor, for services in any prosecution or business
to which it is his official duty to attend ; nor be concerned as counsel or
attorney for either party, in a civil action depending upon the same
state of facts.
Sect. 27. The attorney-general and the district-attorneys shall sever-
ally account with the treasurer of the commonwealth for all fees, bills
of cost, and moneys, received by them by virtue of their offices.
Sect. 28. For the administration of the criminal law the county of
Suffolk shall constitute the Suffolk District ; the county of Middlesex, the
Northern District ; the county of Essex, the Eastern District ; the coun-
ties of Norfolk and I'lymoutl], the South-eastern District; the counties
of Bristol, Barnstable, Nantucket, and the county of Dukes County, the
Southern District ; the county of Worcester, the Middle District ; the
counties of Berkshire and Hampden, the Western District ; and the
counties of Franklin and Hampshire, the North-western District ; for
each of which there shall be a district-attorney.
Sect. 20. Annual salaries shall be paid out of the treasury to the
district-attorneys for the several districts as follows : For the Suffolk
Chap. 14.] notaries public, commissioners. 131
District, three thousand dollars; for the Northern, Eastern, Southern, iss.-), 328.
Middle, South-eastern, and Western Districts, twelve hundred dollars j!^,[;; l\l' ^ '•
eacli ; and for the North-western District, eiglit hundred dollars ; See Ch. u, § as.
which shall be in full for all services rendered by them as district-
attorneys.
Sect. 30. When a vacancy occurs in the office of district-attorney, vacancies in ot
the governor with the advice and consent of the council may appoint a <"<■» of district-
suitable person to fill such vacancy, who shall hold the office until the ibso, i;:j,' § s.
next annual election, or until another is chosen in his stead.
Sect. 31. The district-attorneys within their respective districts General diiHee
shall appear for the eomuionwealth in the sujireine judicial court and {"oru'ey™'"''
superior court in all cases, criminal or civil, in which the commonwealth K. s. la, § :j8.
is a party or interested ; shall aid the attorney-general in the duties re- s'cu'sh. 4,-'.
quired of him, and perform all the duties which he is authorized to per-
form, when he is not required to do the same ])ersonally ; but the attor-
ney-general when present shall have the direction and management of
such prosecutions and suits.
Sect. 32. The governor with the advice and consent of the council Assistam attor-
shall appoint an assistant district-attorney for the Surtblk district, who S"'-'^''''^""''
under tlie direction of the attorney in said district, shall assist him in See cii. 15, § 36.
the performance of his official duties, and who shall receive, out of the
treasury, an annual salary of eighteen hundred dollars.
Sect. 83. The district-attorneys may, with reference to their mutual District attor-
accomnioilation, interchange official duties, so as to insure a punctual JS,""^ '■"*'"
discharge thereof k.'s.°«, § 39.
NOTARIES PUBLIC.
Sect. 34. Notaries public shall have the same authority to administer Notaries may
oaths as justices of the peace. _ _ ' oaZ"'"'''''
Sect. 35. On the death, resignation, or removal from office, of a if^^-'fi.
notary ]niblie, his records, together with his official j}ai)ers, shall be de- to b™ deposited
posited in the office of the clerk of the courts within the county in j; ^J''^'.j''l j?"'"'
which he resided, or in the county of Suffolk, in the office of the clerk is^i.'s.'+i;!.
of the superior court for civil business. '''^'■'' ''■"'■
Sect. 3(3. A notary public who on his resitrnation or removal from iionaity.
office, neglects for three months so to deposit his records and official • • ' » •
papers, shall forfeit a sum not exceeding five hundred dollars.
Sect. 37. If the executor or administrator of a deceased notary on executors
)niblic neglects for three months afler his acceptance of such appoint- u. s°'i"'§'ia.
ment, so to deposit in the clerk's office the records and offici.nl pa])ers of
the deceased which shall come into his hands, he shall forfeit a sum not
exceeding five hundred dollars.
Sect. 38. Whoever knowingly destroys, defiices, or conceals, the fordestroy-
records or official papers of a notary public, shall forfeit a sum not K^s^^a'^Kso"*"'
exceeding one thousand dollars and be liable in damages to the party
injured.
Sect. 39. The sevcnal clerks of the superior court shall receive and cierita to taije
safely keeji the records and official papers of notaries which are depos- Iri'volopfes^io.
ited in their offices ; shall make and certify copies thereof, for which 5^'_- s. is, §§ 51,
they shall be jiaid the same fees that the notary would have been 1^59, 1%.
entitled to, and copies thus certified shall have the same effect as if
certified by him.
commissioners, &c., to administer oaths to public officers.
Sect. 40. The governor, with the advice and consent of the council, commissioners
shall appoint a suitable number of commissioners to administer to pub- oath!rto"i)ublio
lie officers the oaths required by the constitution ; and all public officers, officers,
except those for whom a different provision is made by the constitution ^'■^' '■''^^'''
132
COMMISSIONERS OF DEEDS.
[Chap. 14.
Commissioners
ill otiier states.
K. 8. Ki, § .53.
ISol, 17, s i.
to be sworn,
file sigiiiiture,
impression of
seal, &c., with
secretary.
K. .S. IS,' § ao.
isoi, ir, 5 2.
powers aad
duties of.
K. S. 13, §§ 64,
53.
1S54, 17, § 3.
Secretary to
funiisii tbriiis.
IWl, 17, § 4.
or laws, may take and subscribe such oaths, before the governor, lieu-
tenant-go\enior, two members of the council, or two such commis-
siouers.
COMMISSIONERS TO TAKE DEPOSITIONS, &C., IN OTHER STATES.
Sept. 41. The governor witli the advice and consent of the council
may a]ipoint in each of the states and territories of tlie United States, one
or more commissioners, who witli those now appointed, shall hold their
offices three years from the date of their respective apjjointments, unless
sooner removed by the governor.
Sect. 4"2. Every such commissioner shall within three months from
his appointment take and subscribe an oath or affirmation before a jus-
tice of the peace or other magistrate of the city or county wliere he
resides, foithfully to discharge the duties of his office, shall cause to be
prepared an official seal in which shall be designated his name, the
words " Commissioner for Massachusetts," and the name of the state or
territory and city or county where he resides ; an impression of which
seal, together with his oath of office and signature, shall bo forthwith
transmitted to, and tiled in, the office of the secretary of this common-
wealth.
Sect. 43. He may, in the state or territory for which lie is ap]iointed,
administer oaths, take depositions, affidavits, acknowledgments of deeds
and other instruments, to be used or recorded in this state, and the
proof of such deeds, when the grantor refuses tcj acknowledge the same,
in like manner as justices of the peace may take the proof thereof All
oaths, depositions, affidavits, and proofs, so administered or taken and
certified by him under his official seal, shall be as effectual as if adminis-
tered or taken and certitied by a justice of the peace in this state.
Sect. 44. The secretary shall forward to each commissioner instruc-
tions and fonns prepared by him in couibrmity to law, with a copy of
the three preceding sections.
Commissioners
ill Ioni.,^u coun-
tries, ,vV.
1S50, aii, § 1.
to be sworn,
&c.
IBOO, 253, § 4.
powers and
duties of.
ISSd, 233, 5S 1,
2,3.
COMMISSIONERS TO TAKE ACKNOWLEDGMENT OF DEEDS, &C., IN FOREIGN
COUNTRIES.
Sect. 45. The governor may apjioint in every foreign country one
or more commissioners, who with those now appointed shall hold their
offices during the pleasure of the governor.
Sect. 46. Every commissioner, before performing any duty of his
office, shall take and subscribe an oath or affirmation before a judge or
clerk of one of the courts of record of the state, kingdom, or country, in
which he resides, foithfully to discharge the duties of his office under
and by virtue of the laws of the commonwealth of Massachusetts; whicli,
with a description of his seal of office, and his signature, shall be filed
in the office of the secretary of this commonwealth.
Sect. 47. Such commissioner may, according to the laws of this state,
take the acknowledgment and proof of the execution of any deed, con-
veyance, or lease, of lands, lying in this state, or of any contract, or
letter of attorney, under seal or not, to be used or recorded in this state;
administer oaths, and take depositions to be used in the courts of this
state either under a commission from a court, by consent of parties, or
on legal notice given to the opposite ]iarty. An acknowledgment or
proof so taken and certified by him under his official seal, and annexed
to or indorsed on the instrument, and any such oath or deposition ad-
ministered or taken and certified by him, shall have the same force and
effect as if done by any officer authorized to perform such acts in this
state.
Chap. 14.] guardians of Indians. — sergeant-at-ar.ms. ' 133
GUARDIAN'S AXD TREASURERS OF IXDIAXS.
Sect. 48. Guardians and treasurers of Indians appointed under the OuardianB, &c.,
hnvs (iftiiis state, shall beti)re sending their accounts to the auditor have "s-)!"]','™'*'
tlKin a])])roved by the judge of the probate court for the county in isir., 210.
■which they respectively reside. JIfsl jggl
Sucli guardians and treasurers may be removed bv the governor and ?,^4°^i^''
council fur just cause, and others appointed in their places. isas'rs.'
1829, r.2.
1852, 86.
SERGEANT-AT-ARMS.
Sect. 40. The legislature shall annually in January choose a sergeant- Sergeant-at-
at-arms, who shall hold his office until another is chosen in his stead, ""?'*' ','"" ■'■''
1 1 • c • 1 1 iY» . T-v . pointcu, re-
and may remove lum lor misconduct or other sutticient cause. During moved, &c.
the recess of the legislature the governor and council may suspend him ^_^' '•''S^^'^'
for like cause, and when a vacancy occurs during a recess, the governor
and council may a]i]ioint a suitable person to perfonn the duties of the
office until a new election.
Sect. bO. He shall receive a s;ilary of two thousand dollars a year, saiarj; and
and shall give bond to the treasurer of the commonwealth, in the sum i°°s. w, §.58.
of two thousand dollars, for the fiiithful performance of his duties, and i8o4, lu, § 1.
to account tor all moncv intrusted to him lor the use 01 the common- iss'.i, ua, %.
■^^-£.;(ltl)_ ■ See Ch. 15, § 3B.
Sect. 51. lie shall serve such processes and execute such orders, as general duties
may be enjoined upon him by the legislature, or either branch thereof; u.' s. 1.3, §§ 59,
he shall attend the members or clerks of either house, when they are <», 02.
charged with messages to the other ; shall see that the chambers and
lobbies occupied l)y the legislature, are during the session kept in good
onler, and that the fires are seasonably kindled, diligently tended, and
carefully extinguished ; shall maintain order among the s]icctators ad-
mitted into the rooms in which the respective branches hold their ses-
sions, and take projier measures to prevent the interrujition of either
branch, or the committees thereof; and shall have the control of, and
exercise a strict superintendence over, his subordinate officers, giving
them all needful directions and taking care that they promptly jierfonn
their duties.
Sect. 52. He shall have the general charge and oversight of the 8a:nie subject,
state house and its appurtenances, shall suiierintend alterations and re- itku m,\'2-
pairs thereof, shall daily visit and inspect the apartments therein, (except
the secretary's office, council chamber, and apartments therewith coii-
ne(t('<l, which shall be under the care of the messenger of the governor
and council,) and take proper ])recautions against damage thereto, or to
the books, papers, or other property therein; and he shall take care that
the chambers and lobbies, occupied by the legislature, are kept clean
and in good order, during the recesses of the general court.
Sect. 58. He shall take all proper care to prevent any trespass or to preserve
injury being committed contrary to the provisions of section fourteen rJom injury.*"'
of chapter live ; and if such trespass or injury occur, and the offender is i*- S. i3, § 63.
known, he shall forthwith give notice to the attorney-general or district
attorney for the Suifolk district, in order that such oflender may be
pri )secuted therefor.
Sect. 54. He shall, immediately after his election, appoint, subject to .appoint
to the approval of the presiding officers of the two branches, respectively, jJud'alJsist'autB,
suitable and proper persons to l)e door-keepers to each house, who shall, subject, ic^
during the session, render him all necessary assistance ; and he shall also igbs, isa. '
ajiptiint, subject to like approval, such assistants to the door-keepers as
the two houses may respectively direct.
Sect. 55. He shall annually appoint, suliject to the approval of the to appoint
secretai-y and treasurer of the commonwealth, four good and iliscreet ^^*''''™'^"-
12
134
COMMISSIONERS ON STATE HOUSE.
[Chap. 14.
R. S. 13, § 61.
ISW, 80.
IS5S, 159, § 1.
Watchmen, cUl-
li'js of.
ISoS, 159, §§1,2.
same subject.
K. S. 13, § 03.
18jS, 159, § 3.
same eubject.
1858, 159, §§ 1, 2,
4.
salaries of.
1R5«, 176.
See Cli. 15, § 30,
I'ireman, ap-
liointuieiilof.
If<5-t, 159, § 5.
Si^e Ch. 15, § 30.
Sergcant-at-
nriQ.s, &c., to
receive no fee.
U. S. 13, § 05.
persons ns wtitchmeii of the .state house, whom he m.iy at any time re-
move, and for whose fidelity and good conduct, in said capacity, he shall
be responsible.
Sect. 56. The watchmen shall remain in the state house every nii^ht
from nine o'clock in the evening until sunrise in the morning, and main-
tain proper watch and guard for the security thereof; and shall visit,
each night, all the rooms in which fires have been kindled during the
preceding day, and attend to their safety.
Sect. 57. They shall take proper care to prevent any trespass or in-
jury being committed in or upon any part of the state house, or of
the appurtenances thereof belonging to the state ; and if any is com-
mitted, and the ofttMider is known, they shall forthwith give notice
thereof to the attorney-general, in order that such ofleiider may be pros-
ecuted therefor.
Sect. 58. They sh.all open the outside doors of the lower floor and
the gates every morning, and close the same every evening, except Sun-
days ami public holidays ; shall keep the lower floor, entries, and all the
offices except that of the secretary, clean and in good order, kindle and
keep up suitable fires therein, and light, clean, and keep in good order,
the outside lamps. They shall act as messengers to the legislature dur-
ing the sessions thereof, and shall perform all other duties with regard
to the offices in the state house, except that of the secretary, as have
heretofore been performed by watchmen and messengers to the general
court. Two of them shall be on duty in the state house during the day-
time while the outside doors are open, and maintain watch and guard
for the security thereof The keys of the doors, gates, and apartments,
shall be so dejiosited that they may have ready access thereto.
Sect. 59. Each watchman shall receive a salary of eight hundred
dollars a year in full compensation of all services required of him by the
sergeant-at-arms as watchman tlyoughout the year, and messenger dur-
ing the annual session of the legislature.
Sect. 60. The sergeant-at-arms may appoint one person as fireman,
who shall make and attend the fires in the basement of the state house,
and perform such other duties as may be required by the sergeant-at-
arms; and who sh.all receive in full compensation for his services a sal-
ary of six hundred dollars a year.
Sect. 61. No fee or reward shall be taken by the sergeant-at-arms,
or any person under him, for opening the public rooms in the state
house, for the view and inspection of visitors.
Commissioners
on state house
to have charge
of appropria-
tiims, .S:c.
l!l57, 05,§§2,3.
COMMISSIONERS ON REPAIRS OF THE STATE HOUSE, &C.
Sect. 62. The sergeant-at-arms, secretary and treasurer of the com-
monwealth, shall constitute a commission, without com])ensation, having
in charge the appropriations for the rejiairs, im])roveinents, and fiu-ni-
ture, of the state house, and contingent expenses of the council, general
court, and offices in the state house. No ex])enses shall be incurred for
said ])ur])osos unless ]n-eviously authorized by said commission, and no
expenses shall be authorized by them unless the same come within the
amount .appropriated by the legislature ; except that in case of damage to
the state house, caused during the recess of the legislature by fire or
other unforeseen casualty, the commissioners may make all necessary
rejsairs for the protection and preservation of the building.
Me8senq;er to
governor and
council.
MESSENGER TO THE GOVERNOR AND COUNCIL.
Sect. 6.3. The governor with the advice and consent of the council j
may appoint a messenger, who sh.all hf)ld his office during the pleasure
of the governor, and receive a salary of eight hundi-ed dollars a year.
Chap. 15.]
AUDITOR.
135
The me.ssensTer may employ an assistant, whom he may remove at any i**~. 2.ir.
Sec rii. 15, § 30.
time, and who sliall receive for his services three hunured and sixty-tive '^*' '"''
dollars a year
Sect. (54. Tlie messenger and assistant shall perform such duties Messtngei's
as may be required of them by the governor or the governor and *•"•"*"•
council.
CHAPTER 15.
OF THE AUDITOR, TREASURER, LAJND AGENT, AND MATTERS OF FINANCE.
Al'DITOR.
Section
1. Auditor to give bond.
2. salary of, may t-inploy clerks, &c.
3. shall exainiiio necouuts, aud may deduct
ovcrehargCB, &c.
4. Bliall keep accounts of receipts, &c.
5,6. report of.
7. shall examine treasurer's books, &c., aud
perform certain other duties.
8. books, &c., of, to be examined during re-
cess of legislature.
TREASURER.
9. Treasurer to give bond.
10. bond of, to be sued, in case, Ac.
11. may be removed by governor on request
of sureties, in case, &c.
12. salary of, clerks of, and their Balaries.
13. may assign mortgages.
14. may sell real estate hold under a mort-
gage foreclosed.
15. shall stamp bonds, &c., of the common-
wealth.
16. may assign, A-c, mortgages, Ac, made to
his predecessors, with approval of governor.
17. to transmit aunually to attorney -general
account of all bonds, &c.
18. to invest money received from sale of
public lauds.
19. to report to the legislature.
20. on death, Ac, of, secretary and others to
take charge of his office, &c.
21. Inventory of moneys, &c., to be taken by
committee, &c.
22. Duplicate receipts to be given by successor
of such treasurer.
LANn AOENT.
23. Land agent, salary and bond of.
24, 25. duties of.
26. sales, &c., of, to be approved by governor
and council.
27. to make report to legislature.
matters of finance.
Section
2S. Public officers to make and submit esti-
mates to speaker of the house.
29. Officers disbursiug money to report to the
auditor.
30. Money to be paid from treasury only upon
warrant of governor, Ac.
31. Balances of approju'iatious may be pjud in
succeeding year, but not afterwards.
32. Paymeuts may be withln-ld from persons
with whom state has unadjusted accounts ;
or wlio withholds money, &c.
33. to be made from ordinary revenue, &c.
Cash at beginning of year, how applied.
34. Notes to be signed by treasurer, approved
by governor, &c.
35. Paymeuts of iuterest on temporary loans,
&c.
36. of salaries, &c.
37. Accounts for expenditures under orders of
the legislature to be ap])roved by presiding
officers, &c. Limilatiou of amount of such
orders, &c.
38. Meaning of "incidental expenses" in ap-
propriation laws.
39. Less appropriation to supersede former
larger.
40. Appropriations for a specified year, bow
construed.
41,42. Directions to public functionaries in in-
curring liabilities, ^:c.
43. Improvemeuts, A'c, in public buildings,
not to be made without nppropriation.
44. Bills exceeding fllty dtiUars to be sworn to.
45. Committees of legislature not to incur lia-
bility in behalf of state, unless, &c.
40. Appropriations for witness fees, may be
applied to taking depositions.
47. Compensation of commissioners, Ac, to be
determined by governor and council.
4S. Travelling expenses of public officers.
49. Bills of charges against state to contain
items.
50. Secretary, Ac, to lay before legislature ao
couuts of expenses ol' their offiues> Ac
AUDITOR.
Section 1. The auditor of nceouiits shall give bond to the treas-
urer of the eominomveahh, with sutticient sureties, to be approved by
the governor with tlie advice and consent of the council, for the faithful
discharge of the duties of his office.
Sect. 2. He shall receive a salary of two thousand dollars a year.
He may employ in his office one permanent clerk at a salary of twelve
Auditor to give
boud.
1&49, 56, § 1.
salary of.
clerks, &c.
136 TREASURER. [ChAP. 15.
1S52, 318. hundred dollnrs a year, and such additional clerical assistance as may be
isosi liol ' ' necessary for the despatch of the public business, at a salary not exceed-
ing eleven hundred dollars a jear for each person employed.
Auditor shaU Sect. 3. He shall examine and scrutinize and may deduct over-
MuSsJ'aud charges in all accounts and demands against the state, including those
niiiy deduct for scrvices or objccts for which definite appropriations are made, and
m^erc mrges, ^^^ which ap])ropriations are made not exceeding a certain sum, but
iSs' if' f f excepting those due on account of the principal or interest of a public
iaaa', i58, § is. debt, or of the pay rolls of the council, senate, or house of representa-
tives. He shall make and record in a book kept for that ]iurpose a cer-
tificate specifying the amount due on each demand, the law authorizing
its payment, and the head of ex]ienditure to which it is to be charged ;
and shall transmit the certificate to the governor, who may draw his
warrant therefor. As soon as may be after the drawing of a warrant,
the secretary shall transmit to the auditor a written statement of the
amount and purport thereof.
sii.iii keep ac- Sect. 4. He shall keep a distinct account of public receipts and ex-
feipt'^&cf penditures under appropriate heads. If the sum allowed by law for any
isw, oil, §3. purpose has been exjtended or drawn for, he shall in writing communi-
cate such fact to the secretary, who shall lay the same liefore the gov-
ernor and council as soon as may be. He shall keep a like statement of
the school fund and other public property, and of all debts and obliga-
tions due to and from the commonwealth ; and for such ]>urposes shall
have free access to the books and papers in the offices of the secretary,
treasurer, and land agent,
report of. Sect. 5. On or before the fifteenth day of January in each year the
mi', I5MH, 5, auditor shall submit to the legislature a report exhibiting a full .and
8)7iS- accurate st.atement of the financial condition of the commonwealth, and
' ' 'of the pecuniary transactions thereof, during the year ending on the last
day of the preceding month,
same subject. Sect. 6. He shall include in his rejiort an estimate for the following
isss' 158^*1. yPM" of the ordinary income of the commonwealth, and other means
which he may point out for the defr.aying of expenditures, and shall
annex thereto such rejiresentations or suggestions as he may deem
necessary,
shall examine Sect. 7. He shall annually in .January examine the books, accounts,
tooksTc!*, and ^""^ vouchcrs, of the treasurer, and shall comply with any regulations in
perform certain relation to the duties of his office, not inconsistent with the provisions
iW^so^fM. "• '^^ ^^'® chaj>ter, which may be transmitted to him in writing by the gov-
ernor and council.
Hooks, &c., of, Sect. 8. The books and accounts of the auditor shall be carefully
dmin^'rccess'of examined, at least once during the recess of the legislature, by a com-
legisi.-iture. mittee of the council, or such pei-son as the srovernor with tlie advice
and consent of the council may a])point ; and shall annually in January
be carefully examined by the committee of accounts.
1S4'J, 50, § 3.
TREASURER.
Treasurer to Sect. 9. The treasurer of the commonwealth sh.all give a bond, with
Ir.^I. is"! H. three sureties at least, to be ap])roved by the governor with the advice
and consent of the council, in the sum of one hundred thousand dollars,
payable to the commonwealth, with condition in substance as follows :
that he and all persons employed in his office shall faithfully discharge
their duties and trusts ; th.at he shall use all necessary and reasonable
diligence and care in the safe keeping .and lawful disposal of all sums of
money, books, bonds, notes, pajiei-s, and other things appurtenant to the
office, which shall come to his hands, or to the h.ands of the persons
employed l>y him ; th.at he sliall, \ipon reasonable notice, render a true
account in the premises, when thereto required by law or by the senate
Chap. 15.] treasurer. 1.37
or house of representatives ; shall deliver over to his successor in office,
or other person authorized to receive the same, all money, books, bonds,
notes, and otlior things belonging to said office ; and that all balances
and defalcations wliich shall appear against him, shall be forthwith paid
into the treasury of the commonwealth.
Se< T. 10. The bond shall be deposited in the secretary's office ; and Treasurer,
ujjon the order of the governor with the advice of the council, or the suedin*iasc!&c.
order of the senate and house of representatives, the attorney-general, R- s. i3, § i5.
or any other person by them respectively authorized for that purpose,
shall commence an action thereon, and prosecute the same to final judg-
ment, execution, and satisfaction.
Sect. 11. Upon the representation, under oath, of a surety in such may be re-
bond, or other person, that the treasurer is insane, or manifestly insol- "nor'on'rf-'"^
vent, or has absconded or concealed himself, or is absent from the state, quest of sure-
or from the duties of his office, to the hazard of the public treasury, if k^ s.'°3f§^u*''
ujjon examination such representation ap])ears to be true, the governor. Amend, const,
with the advice and consent of the council, shall remove him from office
and declare tlie office vacant.
Sect. 12. The treasurer shall receive a salary of two thousand dol- salary of,
lars a year. He may erajiloy in his office two pennanent clerks, the flf^^r'saiarie^
first at a salary of fifteen hundred doll.ars a year, and the second at a h. s. i3, § ji.'
salary of twelve hundred dollars a year; and such additional clerical I^m^Ho' pi!'"
assistance as may be necessary for the despatch of the public business, I'^^'Xh'^jl I ,,.
at a salary not exceeding eleven hundred dollars a year for each jJerson " ''
employed.
Sect. 13. Where the treasurer is authorized to discharge a mortgage may assign
held by the commonwealth, he may instead thereof assign the same, and 5wr, wf.*^^'
his assignment shall have the same eflect as like assignments liy other
mortgagees; but shall not impose any liability, express or imjilied, upon
the commonwealth.
Sect. 14. When the title to real estate becomes vested in the com- may sell real
monwealth by the foreclosure of a mortgage, the treasurer may, with S'I'm'oi't<''a"e
the apiiroval of the governor and council, convey the same, upon the fon-.iosed." "
payment of the amount of the mortgage debt, with the interest and "'"'' **'
exjtenses accrued thereon.
Sect. 15. The treasurer shall provide himself with a stamp upon shall stamp
which shall be the words "The property of the commonwealth," and of"'mumoa-
shall cause all bonds and securities in his possession belonging to the w-'aitii.
commonwealth to be stamped therewith.
Sect. 16. No bond or security belonging to the commonwealth shall may assign,
be transferred except with the written approval of the governor. Where ic.Jmariefo^hfs
the treasurer holds, as the propertv of the commonwealth, any note, preiii-cossors
11 i ^1 •. 1 i 1 • 1 • li; with approval
bona, mortgage, or other security, made to any predecessor in ins oriice, of governor,
the same may be transferred, assigned, or discharged, in hke manner as i>^iJ, os, §2.
if it had been made directly to the commonwealth.
Sect. 17. He shall annually on the first Mon<lay of May, transmit to to transmit
,1 ,, 1 ,, ,. i,. f. ^1 A annuallv, To at-
the attorney-general or other prosecuting officer of the government, an torney-gonerai,
account of bonds, notes, and securities, in the treasury, in which the »<eount_or all
State IS interested, on which the principal or interest remains due and k. s. is, §25.
unpaid, or of which the conditions have not been performed, classing
them under distinct heads, as far as may be convenienly done ; and the
attorney-general, or other officer, upon receiving the same, shall enforce
the collection of the money so due, and the performance of conditions
so unperformed, and require such payments and settlements in the
premises as he thinks the interests of the state demand, with due regard
to the situation of the debtors. .
Sect. 18. He shall liave the custody of all notes, bonds, and mort- money received
gages, given to the state for the purchase of lands in the state of Maine, 5 "m- "'i''^ "Jl
11 n .11 • ^ 1 TT 1 11 1 public lauds.
and shall receive all money accrumg irom the same. He shall keep a k. s. 10, §§ 6, 7.
12* 18
138
LAND AGENT.
[Chap. 15.
Treasurer,
to report to
the leu^islature.
1«5S, 1, § 4.
on death, &c.,
of, secretiirj'
and others to
take charj^e of
his office, &c.
K. S. 13, § 17.
Inventory of
money, itc., to
be taken by
committee, &c.
K. S. 13, § IS.
Duplicate re-
ceipts to be t^iv-
en by successor
of sucli treasur-
K.' S. 13, § 19.
separate account of the money, notes, and obligations, so received by
liiin ; and shall, witli the approbatiou of the governor and council, invest
said money in the stocks of the New England states and in the obliga-
tions of the counties, cities, and town.s, thereof; regard being hail to
the security, productiveness, and availability, of the fund when required
for use.
Sect. 19. The treasurer shall annually in January report to the
legislature a statement of the operations of his department lor the year
ending on the last day of the ju-eceding month; including a specific
statement of all warrants remaining unpaid, and the names of the per-
sons in whose I'avor they are drawn.
Sect. 20. Upon the death or resignation of the treasurer, or other
vacancy in that office, the secretary, with two suitable persons to be
appointed by warrant under the hand and seal of the governor, shall
repair to the places where the money, papers, and other things belong-
ing to the treasury, are kept, and, having previously given notice to
such late treasurer, or his heirs, executors, or administrators, and to his
sureties or one of them, or to such of the persons as may be found
within the state to attend thereat, shall seal up and secure, in their
presence if they attend, all such money, pajiers, and other things sup-
posed to be the property of the commonwealth ; and they shall give
such representatives or sureties, if required by them, a true list of all
boxes and packages so sealed up and secured, and shall note on such
hst the place wherein the same are deposited.
Sect. 21. After sealing up and securing the effects, the secretary,
with the two ]iersons .appointed as aforesaid, shall as soon as may be,
and after notice to the jiarties mentioned in the preceding section, cause
the boxes and pack.ages to be examined, and a true inventory to be
taken of the money, and of all bonds, notes, securities, books, and other
things .appertaining to said office, which shall be required by the late
treasurer, or his representatives or sureties, or either of them ; a copy
of which inventory shall be deposited in the secretary's office : and
cojues that may be required shall also be given to any of said parties.
The secretary and said two persons shall safely keep all money and
other effects inventoried as aforesaid, until another treasurer is chosen
or appointed ; to whom when qualified they shall deliver over the same,
taking duplicate recei]its from such new treasurer ; one of which receipts
shall be deposited with the secretary, and the otlicr with the late treas-
urer, or his legal rejiresentatives or sureties, or one of them.
Sect. 22. Upon every appointment or election of a new treasurer,
he shall give duplicate recei])ts, one of which shall be dejiosited with
the secretary; and such recei]its shall be sufficient evidence for liis jired-
ecessor in office, of the property of tlie state rem.aining and delivered
over by him, and shall be his sufficient discharge therefor.
Land a^ent, sal-
ary and bond
of.
K. S. 10.
1861, 190.
1858, 85.
1859, 91.
duties of.
Resolves,
1859, 53, 103.
LAND AGENT.
Sect. 23. The governor, with the advice of the council, shall nniiu-
ally, and whenever a vacancy occurs, appoint a competent ]>erson to be
lantl agent, who shall receive a salary of one thousand dollars a year,
give bond to the commonwealth tor the faithful performance of the
duties of the office, in a sum and with sureties to be a]i])roved by the
governor and council, and hold office lor the term of one year, unless
sooner removed.
Sect. 24. He shall have charge of all lands, flats, shores, and rights
in tide waters, belonging to the commonwealth, excejit tlie Back Bay
lands and other lands and rights otherwise provided tor; and sliall
exercise the jiowers and perform the duties specified in chapters fifty-
two and oiu' hundretl and three of the resolves of the year eighteen
hundred and fifty-nine.
Chap. 15.] biattees op finance. 130
Sp:i.'t. 25. He shall have the eiistorly of all records, deeds, instru- Land agent, du-
meiits, plans, maps, charts, surveys, ami other documents, relating to Kesolvcs,
said property or a]ipertaining to the lands in Maine, and safely keep the ^^'^' '"3.
s.ame in the land ottice at the state house; he may make and certify
copies thereof, and shall keep said office open at stated hours, as public
convenience may require.
Se<"t. '26. All sales, contracts, leases, deeds, and instruments, made Rales, &c. bv,
by him, shall be a])]iroveil by the governor and council and recorded in by!',overnor!ix.
the records of the land office, and without such aiii)roval and record, Kesoives.
the same sliall be of no effect.
Sect. 27. He shall annually report to the legislature in detail all sales, to make re-
leases, contracts, and other transactions, of said office for the ]irevious year, ?„„.*" ^"^ '
and such other facts relating to said office and property as may be See cu. 4.
necessary or useful.
MATTERS OF FINANCE.
Sect. 28. Every public officer or board having charge of any depart- PuMie offleera
ment of the public service requiring an expenditure of money from the 'ui'.'milVst^
state treasury, other than the payment of salaries, shall on or before the niLtesto speak-
fifteenth day of January in each year, submit in writing to the sjjeaker of k-js, ios, § i.
the house of representatives, a detailed estimate of the sums which will
be necessary for the maintenance of the de]iartnicnt for the current year.
Sect. 29. Every public officer or board having charge of the dis- officers disbur-
bursement of money, appropriated from the ordinary re\ enue or fi-om report to audit-
the income of any funds belonijinfj to or under the charge of the common- or.
wealth, shall annually in the first week of January, rejiort in detail to '^'-'■s •
the auditor, in such form as he shall prescribe, all expenditures made by
them, anrl the objects to which such exjienditures have been a])]ilicd.
Sect. 30. No money shall be paid from the treasury, but upon the Money to be
warrant of the governor drawn in accordance with an ajijirojiriation in JJ'iiv'oi'iivVpon"
some act or resolve passed within the same political year, except for warrant or the
paj'ments requireil on account of the ]irinci]ial or interest of a ])ublic imV, "';',"§ 2."
debt, or for the salaries of the judges of the supreme judicial court, and is5s> i, §§ i. 2.
of the governor, as established by standing laws. Said principal and
interest shall be paid when due, and said salaries in the same manner
as if a specific appropriation therefor were included in a separate law
passed each year. No warrant shall be drawn for the jiayment of any
account or demand except for the pay rolls of the council, senate, and
house of representatives, unless the same is certified by the auditor.
Sect. 31. The preceding sections shall not prevent the payment from Balances of ap-
the treasury in any year, to a person to whom the same is due, of any l!["v'"i!'','','i',nn
approiji-iation or unexitended balance of an aiiproiiriation made in the f^"''" "iii^jyear,
r Ti- 1 • i- 1 1 1 11 » 1 11 1 but not alter-
precodmg year. If such an appropriation or balance shall not be caliecl wards.
for by the person to whom it is due, or shall not be ap])lied to the objects ^*^>^' '> § 3.
for which it was designed, within the political year in which it is made,
or the succeeding year, it shall revert to the general treasury, and shall
not afterwards be paid out, except upon a new aii]iropriatiun.
Sect. 32. No approjiriation law shall be construed to require any Parments to be
payments to a person with whom the state has an unadjusted account. j",'.s',',',;'s'iiOTiII?'
But the governor, upon receiving satisfactory information that any unadjusicd ac-
money is illegally withholden from the state by such jierson, shall instruct 5,-'.Y-',''n •t'a.
the treasurer to withhold all payments of money to him while such "^S"- '->'*' § i3.
default continues.
Sect. 33. PaAanents authorized by laws appropriating money shall to be made
1 1 ,. ^i* T. .^ ii • • '" • 1 from ordinary
be mailc from the ordinary revenue, it no other ])rovision is expressly revenue, &C.
made therefor. Cash from the ordinary revenue on hand at the besjin- *!'*''' "t begin-
£• 1 1111 .11 ei T ning ol year.
ning of each year, shall be earned to the account of the ordinary revenue is-ss, ii, § s.
of that year. |f «' ^^' 5S >»-
Sect. 34. All notes for money borrowed in anticipation of the reve-
140
MATTERS OP FINANCE.
[Chap. 15.
Notes, how
6ig;ncd, &.c.
Kt'solvus,
IfOS, 13.
I'ayments of in-
terest, tSiC.
l&OcS, lo.s, § ir.
ofsalaries,&c.
18411, 1»B, § .2.
. l.sj^, 11, §§3, 4.
ISOS, 158, § IJ.
IbSU, 2?2, § 4.
Accounts for
expenditures
under orders of
le«jiBlature,
how approved,
Limitation of
amount.
1S5S, 15,S, § 11.
Kesolves,
183?, I'J.
" Incidental ex-
penses."
18S8, 11, § 5.
1858, 168, § 13.
185!>, 272, § 5.
Less appropria-
tion to super-
sede larger.
1858, 11, § (J.
1858, 158, § 13.
1859, 272, § H.
Appropriations
for a speeilied
year.
iKr)S, vr,A, § 1.-).
I^in'.-fioiiH to
puhliL', Ametiou-
aries in incur-
ring liabilities,
&c.
1858, 11, § r.
1858, 158, §§ 13,
U.
Same subject.
1858, 15-1, § H.
Iraprovenicnts,
Ac, in puljlic
buildings, nt)t
tobemade\vit!i-
outan appropri-
ation.
185'J, 177, § 1.
Bills exceedin','
filty dollars to
be sworn to.
1859, 221, § 3.
nue, sliall be signed by the treasurer, approved by the governor, and
countersigned by tlio auditor.
Sect. 35. The interest on temporary loans to the state from banks,
cor})orations, or individuals, shall be paid semi-annually, on the first tlays
of April and October in each year.
Sect. 36. Salaries payable from the treasury shall be paid quarter-
yearly on the first days of April, July, October, and Januaiy, and shall
be in full for all services rendered to the state by the persons to whom
they are paid. No salary shall be paid to any ]ierson for a longer ]ieriod
than that during which he has been actually employed in the duties of
the office. When a salary is diminished, no greater rate shall be jiaid
by reason of any previous appropriation therefor. No person shall at
the same time receive more than one salary from the state treasury.
Sect. 37. Accounts for exjtenditures incurred or services rendered
under an order of either or both branches of the legislature, shall be
approved by the presiding officer of the branch by whicli the same is
passed, and thereupon the auditor shall audit and certify the same, and
the governor may tlraw his warrant theretbi'. But no such order shall
authorize the expenditure of more than one hundred dt)llais, unless a
specific appropriation of a larger sum has been jireviously made.
Sect. 38. The term " inciLlental expenses," when used in an appro-
priation, shall include expenses of postage, printing, and stationery.
Sect. 39. An apjiroiiriation for a service or object for which a larger
or ditterent appropriation has been made in some previous act or resolve,
shall supersede the other.
Sect. 40. Laws making appropriations for a specified year shall not
be construed to prevent the application in the lollowing year of any
unexpended balance, to the same objects.
Sect. 41. Public functionaries charged with the execution of any
service for which an apjiropriation is made, shall use every eft'ort to
accomplish the same for a less sum than the amount of the !i]i]iro]iriation,
when it can be done conformably to the interests of the state. No
public functionary shall make purchases or incur lialiilities in the name
of the commonwenlth for a larger amount than tliat which has Ijeeii
appropriated bylaw for the service or object; and the state sliall be
subject to no res])onsibility for the acts of its servants and officers beyond
the several amounts duly appropriated by law. But this section shall
not prevent public officers or boards fi-om continuing the several de-
partments of service under their charge during the month of January,
until tlie ])leasure of the legislature is made known, at the rate of expen-
diture autliorize.l by the appro]iriations for the preceding year.
Sect. 42. No public officer or board shall incur any new or unusual
expense, make any iiennanent contract, increase any salary, or ciujiloy
any new clerk, assistant or other subordinate, unless an aj)pro]iriatiou
sufficient to cover the necessary expense thereof has been previously
made by the legislature.
Sect. 43. No permanent improvements, .alterations, or additions,
shall be made in any of the buildings belonging to the conimoin\ ealth,
until specific descriptions of such intended changes, and estimates of
the expenses thereof; have been submitted to the legislature, and special
appro])riations made therefor; but this shall not |irohiliit ex])enditures
necessary for kee]iing said buildings and the grounds appurtenant thereto
in good order and condition.
Sect. 44. Before any charges are paid in bills or schedules for articles
purchased, services rendered, or ex])enses incurred, for the common-
wealth, exce]it for salaries fixed by law or payments otherwise provided
for, the auditfir may, and wliere the amount exceeds fifty dollars sliall,
require affidavit to be made that such articles Jiave been ]iurchase(l, ser-
vices rendered, and expenses incurred. All original bills, and original
Chap. 16.]
BO.IKD OF AGRICULTURE.
141
bills included in such schedules, shall, witliin one month after the money
has been paid, be delivered to the auditor to be retained by him.
Sect. 4.5. No committee of the legislature shall incur any expend!- Committoos not
ture or liability in behalf of the state, after the close of the regular ses- u"'"!.",^'". ' "*'
sion, unless tiiere is a subsisting appropriation therefor; and the amount k**. Jj<*> § ^-■
of the ex]tenditure or liability shall be limited by the apjtropriation.
Sect. 46. An3' apiiropriation for fees of witnesses before committees Appropri.ition
of t!ie legislature, may be applied so tar as necessary to pay the expense nmy iic apiiii-d
of taking depositions ordered or authorized by such coniniittees. Bills t'.' '"'^'"S '■''I'o-
for such fees or exiieiises of depositions shall be approved and audited ibsy, aii, § i.
as provided in section thirty-se\en.
Sect. 47. In cases not otherwise provided for, the compensation for Componeation
tlie sen'ices ot committees ot the legislature appointed to act during ^rs, &(-., to hu
the rece.ss, and that of legal counsel and commissioners a])pointed by ll'Jv'["yior au'd'
the executive, shall be determined by the governor an<l council, who onmcii.
shall approve such claims before they are sent to the auditor of accounts. ''^''' "'■
Sect. 48. Commissioners and other public officers having jurisdiction Travelling cx-
throughout the commonwealth, to wlujm travelling ex])enses are allowed, ii',"oi'iu.erB.
shall receive for each mile actually travelled, not more than three and ''"'•'' ~'' 5 "•
one-half cents a mile each way, nor more than the amount actually
expended.
Sect. 49. No bill of charges against the state shall be allowed and Riiis of charges
paid, unless it specines the items. .tciuB.
Sect. 50. The secretary, treasurer, auditor, land agent, and adjutant- i,-->-', :«.
general, shall lay before the legislature, at the commencement of the to licy boioro
annual session, an account of the salaries and allowances received Ijy I.'uf,',ufof e."?"
them and their clerks, and all other expenses of their offices, for the pinst-s, &c.
preceding year, with a statement of the names ;md periods of service aus. * ' '
of each clerk employed.
CHAPTER 16,
OF THE STATE BOARD OF AGRICULTURE.
Section-
1. Board, how constituted.
2. Tenure of office of members — vacancies,
how filled.
3. Hoard to meet at state house. Members to
have no compensatiou, except for expenses.
4. Secretary and clerk, salaries of, &c.
5. Hoard to investigate subjects relating to
agriculture, take donations, &c.
Section
6. Board to provide forms and regulate re-
turns of agricultural societies, &c.
7. to report to legislature.
8. Secretary to publish for distribution ab-
stracts of returns of agricultural societies.
9. ma/ appomt agents. Agents to report
to.
Section 1. The governor, lieutenant-governor, and secretary of the Board, how con-
commonwealth, one person a]ipointed from and by eacli agricultural i^':."'h2, 5 1.
society which receives an annual bounty from the state, and three other
persons appointed by the governor with the advice and consent of the
council, shall constitute the state board of agriculture.
Sect. 2. One-third of the appointed members of the board shall Tenure of office
retire from office on the first Wednesday of Februaiy in each year, ?a,l"n"ierhmv
according to their appointments. The vacancies thus occurring shall be filled.
filled by the governor and council, or the agiicultural societies, as the ^'^-' '■'^i 55 •> -•
offices were before filled, and the persons thus appointed shall hold their
offices for three years from the expiration of the former terms. Other
vacancies may be filled in the same manner for the remainder of the
142
COUNTIES AND COUNTY OFFICERS.
[Chap. 17.
Hoard to meet
at Btate house.
to have no
coinpcnsatioa
except, &e.
1S5S, Hi, § 4.
secretary, .tc.
)s.V_', II',', §4.
Ucsolves, l,S;i4,
7-i. 183ft, 40.
See Oh. 13, § 38.
l^oard to inves-
ti;4"iite subjects
relatinj^ to n;^-
ricultiire, take
donations, &c.
IKua, 142, § 3.
to provide
forms, rcLj^ulate
returns, itc.
1S33, 127, § 2.
to report to
lej^islature.
ISO-.', 142, § 4.
See Cb. 4.
Secretary to
jjublish ab-
BtractR, &c.
lS-1?, lift, § 4.
KS52, 142, § 4.
may appoint
agents, Ac.
agents to re-
port to.
1859, 203, § 1.
vacant temis. The present members of the board shall continue to
hold their offices duriiii;' tlie terms for whioli they are ajiiioiiited.
Sect. 3. The board shall meet at the state house at least once in
each year, and as much oftener as may be deemed expedient. No
member thereof shall receive compensation from the state, except for
personal expenses Avhen engaged in the duties of the board.
Sect. 4. They may appoint and prescribe the duties of a secretary
of the board, who sliall receive a salary of two thousand dollars a year;
and who at such times as the board approve may employ a clerk at a
salary not exceeding six hundred dollars a year.
Sect. 5. They shall investigate such subjects relating to im])rovement
in agriculture in this state as they think proper, and may take, hold in
trust, and exercise control over, donations or bequests made to them for
promoting agricultural education, or the'general interests of husbandry.
Sect. 6. They may prescribe forms for and regulate the returns
required of the dilferent agricultural societies, and furnish to the secre-
tary of each, such blanks as they deem necessary to secure uniform and
reliable statistics.
Sect. 7. They shall annually on or before the fourth Wednesday of
January, by their chairman or secretary, submit to the legislature a
detailed report of their doings, with such recommendations and sugges-
tions as the interests of agriculture may require.
Sect. 8. The secretary of the board shall in each year cause to be
made and published for distribution, as full an abstract of the returns of
the agricultural societies as he deems useful.
Sect. 9. He may appoint one or more suitable agents, to visit the
towns in this state, under the direction of the board, for the purjiose of
inquiring into the methods and wants of practical husbandry, ascertain-
ing the adaptation of agricultural ]iroducts to soil, climate, and markets,
encouraging the establishment of farmers' clubs, agricultural libraries,
and reading-rooms, and of disseminating useful information in agricul-
ture by means of lectures or otherwise. Such agents sliall annually
in October make detailed reports to the secretary of the board.
TITLE VI,
CHAPTER 17.
OF COUNTIES AND CERTAIN COUNTY OFFICERS.
counties.
Section
1. Boundarios, powers, &c., of counties.
2. Former coQvcyances to counties confirmed.
3. In Suffolk, county property to belong to
Boston.
4. How county lands may be sold.
6. Counties to provide public buildings ex-
cept, &.C..
6. In Suffolk, public buildingB to be provided
by Boston.
7. County maps.
8. Same subject.
Section
9. Counties of Suffolk and Middlesex to have
common jurisdiction on Charles Kiver.
10. Courts in Suffolk county to have concur-
rent jurisdiction with courts of other coun-
ties.
COUNTY commissioners.
11. County commissioners to bo sworn and to
choose ch.iirman.
12. Proceodin*js, if any of board are interested.
13. If opposing- parties appear, throe disinter-
ested commiseioners must act.
Chap. 17.]
COUNTIES AND COUNTY OFFICERS.
143
SEfTlOS
H. CommissionerB may punish for contempt.
15. processes of, Blieriffs and other oflBcers to
execute.
10. gcueriil powers of.
17. to examiue aud allow treasurers* ac-
counts, &.C.
18. to make estimates annually,
m. Penalties.
20. Conimisfiioners and treasurer to publiBh
county receipts and expenditures.
21. Commissioners to apportion county taxes.
2-'. Limit of couuty debt.
2-1. Contracts above $.300, to be made in writing^
after proposals issued, &c.
24. When reco^niizHUces shall be required of
parties who apply for damag-es, Ac.
25. Costs, itc, of applications for damages, to
be included iu commis.sioners' estimate.
26. Proceedings not confined to the reg-ular
meetings of commissioners.
27. to be returned to the regular or.special
meeting, &c.
2S, Commissioners to furnish blanks, &c., to
cities and towns.
2'.). compensation of.
30. Costs when petition is disallowed.
31. Commissioners, times and places for meet-
ings of.
32. Selectmen of Nantucket to have powers of
comraissiouers ; town may raise money for
county expenses.
33. Aldermen of Boston to have powers of com-
missionersj, except, &c.
34. In Cli<ls( a. North Chelsea, and TVinthrop,
commissioners of Middlesex to act.
35. To whom powers and duties of commis-
sioners appertain.
COL^-TY TKEASUKEnS.
30. County treasurer to be sworn and give
bond.
37. compensation of.
3S. vacimcy iu office of, how filled.
31). to pay over moneys according to order
of commissioners.
40. to account with commissioners.
41. Further assessments not to be made until
treasurer's accounts are allowed.
42. Treasurer may sue on bonds, Ac, given to
predecessors, and prosecute for injuries.
43. proceedings when public officer fails to
pay over money to.
4-1. orSufT.ilk.
45. '.l*N;nitiirket.
40. Incompatibility.
BOARD OF EXAMINERS.
47. Board of examiners in each county, except,
&c., of whom to consist.
48. duty of in respect to commissiouers' ac-
counts.
49. compensation of.
BOARD OF ACCOUNTS IX SUFFOLK.
50. In SulTolk, board of accounts to examine
and settle accounts, &c. Compensation.
SHERIFFS.
51. Sheriffs, to be sworn and give bond.
5','. vaoniicics in office of, how filled.
53. may appoint deputies.
54. bonds of, to be annually examined by
superior court, &c. ; if insufficient, new to
be given.
55. sureties of, may be discharged, when, &c.
66. penalty on, for neglect to give bond.
Section
57. Sheriffs, bond of, may bo sued. &c.
58. Actions for malfeasance, &c., of sherifTs or
deputies to survive.
59. Treasurer to furnish copies of bonds.
60. Sheriffs not to be arrested. E.xccutions to
run against property only.
01. liabity of, when execution is returned un-
satisfied.
62. upon removal of, alias execution may
issue against their bodies, S:c.
63. Defaults of deputies, &c., after death, Ac,
of sheriff, to be adjudged a breach.
04. Sheriff and deputy not to act as attorney.
Penalty.
65. shall serve all writs, Ac. ; may ser^'e
where their towns, &c., arc parties, &c. ;
may attend juries for assessing damages,
&c.
Oft. may serve demands, &c., by copy.
67. may command aid.
68. may serve writs after sheriff's removal
from office.
69. to attend courts, Ac.
70. compensation allowed to, in each county.
71. to render account to county treasurers
of all money received.
72. to make returns of moneys received, &c.,
and number of days* attendance upon
courts. Penalty.
73. Secretary to furnish blanks.
CORONERS.
74. Coroners to be sworn, and give bond.
75. Superior court to examine into sufficiency
of coroner's bonds; if insufficient, new to
be given.
70. Surety of coroner, may petition to be dis-
charged.
77. Penalty for neglecting to give bonds. Suits
on coroner's bonds.
73. Coroner to execute process where Bhei-iff is
a party, &c.
79. shall perform duties of sheriff during
vacancy iu sherifTs office.
SO. may require aid ; not to act as counsel, &c*
COMMISSIONERS OF INSOLVENCY.
81. Commissioners of insolvency to be sworn.
Vacancies in office of, how filled.
REGISTERS OF DEEDS.
82. Districts in Berkshire, middle, northern,
southern.
83. in Bristol, southern, northern.
84. in Jliddlesex, northern, southern.
85. Registry of deeds in other counties.
8(). Register to be sworn, aud give bond.
87. may be appointed iu certain cases.
88. may be removed.
80. must reside where office is kept.
90. Deeds to bo recorded in county or district
where tlie estate lies.
91. Special provision respecting Barnstable.
92. Register to keep book for uotiug receipt of
deeds.
93. Deeds to be noted tliereiu when received.
1*4. Manner of recording instruments, &c.
95. Certificate to be made on deed, when re-
cordetl.
06. Form of indexes to he kept by registers.
97. Entries to be made within twenty-four
hours, &c.
9S. Provisions respecting entry of name of
grantor of estates conveyed by sheriffs, &c.
09. Deeds of executors, &c., and partitions of
land, how indexed.
144
COUNTIES.
[Chap. IT.
Section
100. Registers to make annunl returns to secre-
tary of number of instruments recorded,
amount of lees received, &c.
101. Form of such returus.
103. Abstract of returns to be laid before legfis-
lature.
Section
103. Copies of indexes to be made annually, in
which surnaraes shall be assorted into dis-
tinct alphabetical lists, &c.
104. Copies of indexes or new indexes may be
made, and may be printed for sale, &c.
Boundaries,
&c., of counties.
Mass. Records,
llH3,vol. L', p. :is.
HH)2, vol. 4, pait
2, p. 5a. I'lym.
Records, 1IW5.
Statutes, 10'j:S,
2. 169o, 8. 1731,
n. iriii, 4.
lr03, 43. 1S03,
14. 1811, 01.
1812, 8?. U. .S.
14, §? 1,4, .5.
See Ch. 1, § 1.
Former convey-
ances to coun-
ties, confirmed.
E. S. 14, § 0.
In Suffolk coun-
ty property to
belong to Bos-
ton.
R. S. 14, § 7.
1852, 53.
1857, IS.
How county
lands may be
sold.
K. S. 14, § 8.
Counties to pro-
vide public buil-
dings, e.vcept,
&c.
K. S. 14, § 9.
In Suffolk, to
be provided by
Boston.
E. S. 7, § 20.
R.S.14,§§ 10,34.
1854, 448, § 3iJ.
County maps.
184(1, 241, §2.
1853, 325, § 1.
Same subject,
isl'-., 24l,§3.
1853, 323, § 2.
Counties of Suf-
folk aud .Mi:l-
dlesex to Iiave
common juris-
COTTNTIES.
Section 1. The boundaries, rights, duties, powers, privileges, and
immunities, of the several counties, shall remain as now estalilished.
Each county shall continue a body politic and corporate for the follow-
ing purposes : to sue and be sued, to purchase and hold for the use of the
county personal estate and lands lying within its own limits, and to
make necessary contracts and do necessary acts in relation to the prop-
erty and concerns of the county.
Sect. 2. Real and personal estate heretofore conveyed by any form
of conveyance to the inhabitants of a county, to the county treasurer, or
to a conunittee, or other persons, for the use and benefit of a county,
shall be deemed to be the property of such county ; and such convey-
ances shall have the same force and efiect as if made to such counties
by their respective corporate names.
Sect. 3. In the county of Suffolk, the real and personal estate which
on or before the twentj'-third day of June in the year one thousand
eight hundred and thirty-one belonged, or was deemed and taken to
belong, to said county, .shall belong to and be vested in the city of Bos-
ton ; and the city of Chelsea, and towns of North Chelsea aud Wiii-
tlirop, shall have no right, title, or interest, therein.
Sect. 4. The county commissioners, or other public officers having
the charge and management of the county lands, may by their order of
record appoint agents to sell any real estate of their county ; and deeds
made on behalf of the inhabitants of the county bj^ such agents, under
their proper hands and seals, and duly acknowledged by them, shall be
sufficient to convey the right, title, interest, and estate, which the county
then has to the lands so conveyed.
Sect. 5. Each county except Suffolk shall provide suitable court
houses, jails, houses of correction, fire-proof offices, and other necessary
public buildings for the use of the county ; except that the county of
Dukes County need not provide a house of con-ection.
Sect. 6. In the county of Suffolk, the court houses, jails, house of
correction, fire-proof offices, and other necessary pulilie buildings, for the
use of the eounty, shall be provided by the city of Boston, and said city
shall pay all county charges.
Sect. 7. Changes in the boundaries of cities and towns, the courses
of roads, railroads, and canals, and other topograjiliical alterations in
each county, shall be correctly and ftiirly delineated on the county
maps in the possession of the county commissioners, wiio shall retain
said maps, and from time to time cause such delineations to be made
thereon.
Sect. 8. The secretary of the commonweahh shall, as often as
necessary, transmit the manuscript county maps in his office to the
respective county commissioners, who shall cause to be transferred
thereto, by a competent engineer or surveyor under their direction, all
alterations and corrections mentioned in the preceding section, and shall
within two months after receiving the same return such maps to the
office of the secretary, who shall immediately cause the alterations to be
delineated on the plates of the state ma]i.
Sect. !». The jurisdiction of the counties of Suff"olk and Middlesex
shall be in common in and upon the waters of Charles River; that is to
say, all that space which lies within the banks of the river so far as the
CUAP. 17.] COUNTY COMMISSIONERS. 145
same runs between said counties. All offences committed within the diction ou
banks of the river, as above described, may be heard, tried, and j)un- k.' s^'h/ §§ "'3.
ished, in that county in which legal process against the offender is tirst
issued, in like manner as if such offence had been committed in such
county ; and civil process ti-om either county may run into and be
executed within the common jurisdiction.
Sei't. 10. The courts in the county of Suffolk, coneuirently with the rourtsin Suf-
courts of the several other counties in which parts of the territorv here- w,'!?""'-',",
matter described are situated, sliall have jurisdiction ot all crimes, jurisdiction
offences, and misdemeanors, committed on the islands or waters in lios- oth'Jr'^munties.
ton harl>or which lie westerly of a line drawn from Point Altlerton to is*^, 135.
the easternmost point of the Outer Brewster Island, and from thence to
Short Beach, at the line dividing the towns of Xortli Chelsea and
Winthrop, as if said islands and waters were within the limits of the
county of Suffolk.
COUNTY commission:ers.
Sect. 11. County commissioners before entering upon their duties Conntycom-
shall be sworn, and at their first meeting after the annual election in s"'.o^ra"&e''."''"'
each year, shall choose a chairman of their board by ballot. }<■■ s. I'i, §§ 24,
Sect. 12. If either of the county commissioners is interested in a Ti-'ji, ~, §4.
question before the boartl, or if any part of a road upon which they are ';iocecding^, if
to act lies within the city or town in which either of them resides, or If estod.
either of them is unable to attend, or if there is a vacancy in the board, JJjj? ' ,'5 ' ^ ^''"
the other member or members shall give notice to one or both of the ;; Met. ,fji.^
special commissioners, as the ease may require, who shall forthwith pro- !,■! Gray, 1:?.
ceed to act as a member of the board. If a board cannot be organized
in conformity with these provisions, then such residence in the city or
town in which the road lies, shall be no disqualification.
Sect. 13.' Xo business in which opposing ])arties appear, shall be ifopposingpar-
finally deterniiued, except by consent, unless there are three disinter- JjI'ree'JSmnufl-
ested commissioners present and acting thereon ; but the provisions of ^^'oners to aw.
this and the preceding section, except so much thereof as relates to pro- isi7,'igi. ''
ceedings in ease of a vacancy, shall not extend to the county of Dukes •* *^"^^- '■•
County.
Sect. 14. The commissioners when assembled for the performance commissioners
of their duties, may administer oaths to witnesses, and punish disorderly "".'S^Miii't!'' ^°^
conduct causing an interruj)tion to the business of their meeting, or n.s. w,§2.
amounting to an open and direct contempt of their authority or ]>«•- ^^^' '
sons, by fine not exceeding five dollars, or bv confinement in the custody
of the sheritt" or a deputy-sheriff, coroner, or constable, for a time not
exceeding twelve hours.
Sect. id. Sheriffs, deputy-sheriffs, coroners, and constables, shall sheriffs, Ac, to
serve and execute all legal warrants and processes to them directed by l^^XIs^ ''™
the commissioners. k. s.s4, §3.
Sect. 16. The commissioners shall have authoritj' : Commission-
First, to proviile for the erecting and repairing of court houses, jails, [XucrTof!
and other necessary pubUc buildings, within and for the use of the «• s. 14, § 31.
county.
Second, to represent their county, and to have the care of the county
propert}-, and the management of the business and concerns of the
count}-, in all cases which are not otherwise specially provided for.
Third, to do such other acts as may be necessary to carry into effect
the powers given them by law.
Sect. 17. They shall examine and allow the annual accounts of the to examine
county treasurers, and allow and settle all accounts of the receipts and *o',|',rt/Tc.''°
expenditures of the county. k. S. 14, §§'31,
Sect. 18. They shall annually prepare and make up to the last day '^'io make esti-
of each year, the estimates of taxes for all county charges and debts for ""tes annually.
13 19
146
COUNTY COMMISSIONERS.
[Chap. IT.
R. S. 14, §§ 31,
32, 35.
1836, 137.
Penalties.
1847, 199.
CoramissionorB
and treasurer to
publish eounty
receipts jind ex-
penditures.
11. S. 14, § 35.
1853, 310, § 1.
Commissioners
to apportiou
county taxes.
K. S. 14, §§ 31,
33.
Countv debts.
1,^3, .310, § 2.
lSi)4, 2:i-(.
lS5tf, 2^31.
Contracts above
$:lOi» to be ni-ide
in writiUL^ alter
proposals is-
sued, Are.
1831, 2UiJ.
In what cases
reco<rnizauces
shall be requir-
ed of parties
wlio apply for
damac^es, &c.
is:iii, !;r,s, § 1.
1847, 2o», § 2.
1857, 213, § 4.
See Cll. 43, § 43.
Wlien dama!^C8
assessed, eo.^ts,
&c., to be add-
ed.
1830, 278, § 2.
Procecdinfjs at
otiier tiTues
tliau re;,^ular
meetinj^^s.
1k:w, rr., § 2.
lS4ii, 271.
1847, 2a'J, § 1.
the year then next ensuing ; including the building and repairing of
court houses, jails, houses of correction, and other county buildings,
with their a|)purte!iances. The estimates so made up and approved by
them, shall be recorded by their clerk in a Ijook kept for that purpose ;
and a fair coiiy thereof, with a statement of the amount of borrowed
money due from the county, and the amount of taxes due and unpaid,
at the time of making said estimates, signed by the presiding commis-
sioner and attested by their clerk, sliall, with the treasurer's accounts, be
sealed up and transmitted by the clerk to the office of the secretary of
the commonwealth on or before the first day of February next after
making up the same, to be laid before the legislature for examination
and allowance.
Sect. 19. Any county commissioner, clerk, or other officer, who
neglects to perform a duty required of him by the two preceding sec-
tions, shall forfeit fifty dollars.
Sect. 20. The county treasurer and commissioners of each county
except Suflblk shall at the close of each year publish in one or more
newspapers, not exceeding three, printed in the same or an adjoining
county, an account of the receipts and ex]ienditures of their county,
arranged under distinct heads, and a specific statement of the debts of
the county, the purposes for which they were contracted, and the time
when they become due.
Sect. 21. The commissioners shall apportion nil county taxes ac-
cording to the then last state v.aluation, and shall by their clerk certify
to the assessors of the several cities and towns their respective portions
thereof.
Sect. 22. The commissioners may renew the whole or any part of
the county debts, negotiate loans in anticipation of and to be paid from
the annual tax when collected, and contract new debts not exceeding in
any one year or for any one object, thirty dollars for each oiie thousand
inhabitants of the county.
Sect. 23. All contracts to be made by the commissioners for jiublic
works, shall, if exceeding three hundred dollars in amount, be made in
writing, after notice for jiroj^osals therefor has been issued and published
at least tliree times in some newspaper published in the county, city, or
town interested therein.
Sect. 24. When a person or corporation applies to the commission-
ers to estimate or assess damages sustained by reason of property taken
or intended to be taken for the purposes of a railroad or other corpora-
tion, or to ])erfonu any other official act in relation to matters in which
the county has no interest, the commissioners, before proceeding to act,
shall require the p.arty to enter into a recognizance to the county, with
sureties to their satisfaction, for the payment of all costs and expenses
which shall arise by reason of such application and the proceedings
thereon ; and the s.ame remedy shall be had to enforce the p.apnent
thereof, as is provided in the case of recognizances entered into under
the provisions of chapter forty-three.
Sect. 2.5. The commissioners, when application is made by a party
whose property has been or is intended to be taken by a railroad or
other corporation, shall, if tliey assess damage, add thereto tlie amount >
of costs and expenses incurred by reason of the application and the pro- !
ceedhigs of the commissioners tliereon.
Sect. 26. The commissioners or the chairman of the board may, at ^
other times than at regular meetings, receive petitions rel.iting to rail-
roads or to matters in which the county has no interest, and take recog-
nizances tliereon, and u])on such petitions, and similar petitions entered'^
at a regular meeting and jiending before them, may apjioiut times ford
hearing the parties, and acting thereon, and direct proper notices to be
given to persons interested.
Chap. 17.] county commissioners. 147
Sect. 27. The commissioners and chiiirman shall make return of PotitionK, f^c,
such petitions and recognizances, with their j>roceedings, at any regular \" n':.na "™r''
meeting, or special meeting held for that purpose ; their clerk shall enter special meei^
the same of record, and such further proceedings shall be had thereon SnIi, r"; § 3.
as the case shall require. The costs of such special meetings shall be }^'J' f^!^- j
paid by such of the parties as the commissioners decide. '"' '
Sect. '28. The commissioners shall annually, before November, rommissionciii
furnish to the several clerks of the cities and towns, blank fonns and {,"„uks''&c
envelopes for returns of votes for commissioners, county treasurer, and isi^, lae.
register of deeds, with such printed directions on the envelopes as they "^"' "'"'' ^ ''
shall deem necessary for the guidance and direction of such officers in
making the returns according to law.
Sect. 29. The commissioners and special commissioners of each compcnsntion
county shall receive from the county treasury, in equal semi-annual "4ii 103 §s 1 j
payments, in January and July, in full payment for all their services 3. "'
and travel in their respective counties, and to be divided among them
in proportion to the number of days and amount of travel actually
performed by them respectively, annual salaries as follows: —
For the county of Barnstable, eight hundred dollars :
For the county of Berkshire, twelve hundred dollars :
For the county of Bristol, eleven hundred dollars :
For the county of Dukes County, two hundred dollars:
For the county of Essex, twenty-five hundred dollars:
For the county of Franklin, nine hundred dollars:
For the county of Ilanqiden, fourteen hundred dollars:
For the county of Hampshire, nine hundred dollars:
For the county of Middlesex, three thousand dollars:
For the county of Norfolk, eighteen hundred dollars:
For the county of Plymouth, fifteen hundred dollars :
P\)r the county of Worcester, twenty-two hundred dollars.
Sect. 80. When a petition to the commissioners is disallowed, and Costs wiion po-
costs are chargeable to the petitioner, there shall be taxed for etu'li com- kwed!"'"^''''
missioner at the rate of three dollars a day for time, and five cents a im'-'. i'«3, §4.
mile for travel to and from the place of meeting, to be paid into the
county treasury.
Sect. 31. The commissioners shall hold meetings in their respective 'rimes aud
counties at the following times and places : — j;!^;'';'' '"■" """*
In the county of Essex, at I])swich, on the second Tuesday of April ; Es°scx.
at Salem, on the second Tuesday of July; at Newburj-]iort, on the "bf.'a^;'.* "■
second Tuesday of October; and at Lawrence, on the last Tuesday of
August ; and on the fourth Tuesday of December, at Ipswich, Salem,
or Newbury])ort, as they shall order at their next preceding tenn.
In the county of Middlesex, at Cambridge, on the first Tuesday of Middlesex,
January; at Concord, on the first Tuesday "of June; and at Lowell, on I^.^k'*'^""
the first Tuesday of September. issrjao.
In the county of Worcester, at Worcester, on the fourth Tuesday of Worcester.
March, the third Tuesday of June, the second Tuesday of September, «• '^^ ^-i' 5 <■■•
and the fourth Tuesday of Deceml)er.
In the county of IIam|ishire, at Northampton, on the first Tuesdays Hampshire,
of March, September, and December, and on the Tuesday next aft'er J^-„?;.|f,'.^''-
the second Monday of June.
In the county of Franklin, at Greenfield, on the first Tuesdays of Franklin.
March and September, and the second Tuesdays of June and De- i'-Sm.S6-
cember.
In the county of Hampden, at Springfield, on the second Tuesday of Hampden.
April, the firet Tuesday of October, and the fourth Tuesdays of June "• ^- ^^ ^ "•
and December.
In the county of Berkshire, at Lenox, on the first Tuesdays of Jan- ^l^^^l!''
uary, April, July, and September. is4(i;77.'
148
COUNTY TREASURERS.
[Chap. 17.
Norfolk.
U. S. ■■4, § 6.
1*37, 200.
riymouth.
1£. S. Si, § 6.
Bristol.
K. S. 84, § 6.
Barnst.ible.
K. S. cH, § 6.
Dukes County.
1!. S. S4, § 0.
Powers of com-
Hiissionors, aud
county c.Kpcn-
8P8 ill Nau-
tueket.
R. S. 14, § .30.
183S, 71, § 1.
in Suffolk.
K. .S. U, § 3!1.
ISoJ, -Hti, § 33.
lu Chelsea,
North Chelsea,
aud Winthrop,
commissioners
of Middlesex to
act.
It. S. S4, §§ 4, 7.
1831,3311.
1852, 103.
1837, 14, 18.
1833, 103.
To whom pow-
ers and duties
of commission-
ers appertidn.
K. .S. 14, § 37.
1847, 19'J.
In the county of Norfolk, at Deilham, on the third Tuesday of April,
the fourth Tuesdays of June and September, and the last Wednesday
of December.
In the county of Pljnnouth, at Plymouth, on the first Tuesday of
January, the third Tuesday of March, and the lirst Tuesday of August.
In the county of Bristol, at Taunton, on the fourth Tuesdays of
March and Se]itember.
In the county of Barnstable, at Barnstable, on the second Tuesdays
of April and October.
In the county of Dukes County, at Edgartown, on the Wednesday
next after the third Monday of May, and the Wednesday next after the
second Monday of Xovember.
Sect. 32. In the county of Nantucket, the selectmen of the town of
Nantucket shall have like powers and perfbim like duties, as are exer-
ciseil and performed by the commissionei-s of other counties ; and said
town may raise such sums of money as may be necessary for defi'aying
the expenses of the county of Nantucket.
Sect. 33. In the county of Suflblk, the aldemien of the city of Bos-
ton sh.all have like powers and perform like duties within said city, as
arc exercised and ])erformed by the county commissioners of other
counties, except such as relate to trials by jury, and the recovery of
damages on such trials, in laying out, altering, or discontinuing, high-
ways or town ways.
Sect. 34. In the county of Suffolk, the county commissioners for
the county of Middlesex shall have jurisdiction within the city of Chel-
sea and the towns of North Chelsea and Winthrop, and shall exercise
and perform therein all the powers and duties relating to highways and
to all other matters which in their own county are committed to their
control and direction, except as is otherwise provided by law ; and
when ])ertbrming duties which relate to said ]ilaees, they shall be paid
therefor by said places, or either of them, in such jjrojiortions as the
commissioners may direct, at the rate of three dollars a day, and five
cents a mile, travel, for each commissioner attending in the case.
Sect. 35. All the provisions of law concerning the powers, duties,
and liabilities, of county commissioners and their clerks, shall, exeejit
where otherwise specially provided, be construed to include and apply
to all other public oflicers who by law exercise the powers of such com-
missioners or clerks in the respective counties.
County treasu-
rer to be sworn
and give bond.
K. S. 14, § 45.
compensation
ef.
K. S. 14, § 51.
ISSa, 253.
COUXTY TEEASUREKS.
Sect. 36. The treasurer shall be sworn by the county commissioners
or any one of them, and shall give bond to the county, with suificient
sureties and in such penal sum as the commissioners direct, for the faith-
ful discharge of the duties of his office.
Sect. 37. The treasurer shall be furnished by the county with an
office in the court house or other county building ; and receive in quar-
terly pajinents from the treasury an annual salary, in full for all ser^•ices
by him performed, as follows ; —
For the county of Barnstable, five hundred dollars :
For the county of Berkshire, eight hundred dollars :
For the county of Bristol, eleven hundred dollars:
For the county of Dukes County, one hundred dollars :
For the county of Essex, fifteen hundred dollars :
For the county of Franklin, six hundred dollars:
For the county of IIanip<len, eight hundred dollars :
For the county of Ilanipshire, six hundred dollars:
For the county of Middlesex, two thousand dollars :
For the comity of Norfolk, eleven hundred doUars :
Chap. 17.] boards of examixeks and accounts. 149
For the county of Plymouth, six hundred dollars :
For the county of Worcester, fifteen liundred dollars :
Sect. 38. If the otiiee of treasurer becomes vacant by the death, Trrasurcr, vn-
removal from the county, or incapacity, of the treasurer, or otherwise, ™'ho"\rik-d';
the commissioners shall appoint some suitable person resident in the i'-s. h, §«.'
county to fill the vacancy. The person so aiijiointed, upon being sworn
and giving bond, shall be treasurer until another is elected and qualified
in his stead.
Sect. 39. Tiie treasurer, except where provision is otherwise made topnyovor
by law, shall jiay all money received by him for the use of the county, Sionersdi'-'
as tlie commissioners shall direct. rect.
Sect. 40. At the close of each year he shall render his account to ^to",i"'ount'
the county commissioners and account with them for all monev received wi'i' ™"i»»'s-
and paid by him in behalf of the county, and when the account is ap- k..s.h,'§§3j,5i.
proved and allowed, it shall be delivered by him to the clerk of the "^"' '■"'■
commissioners. If the treasurer neglects to ]»erforni the duty required
of him by this section, he shall forfeit fifty dollars.
Sect. 41. No further assessment shall be made on the several places no fiirthcr us-
in the county until the treasurer thereof has rendered his accounts, mn(i""untii*"ilj«
and they are laid before the legislature as provided by law, and allowed. fCTOunts aretd-
0 it rrii ^ .,,*,. 1 1 lowed.
Sect. 42. Ihe treasurer may prosecute to final judgment and exe- u. s. i4,§ 53.
cution, suits upon bonds, notes, and other securities, given to the county oouuty''bouii8
or to him or his predecessors in office, whether commenced by himself or ii;.
his predecessor. He may prosecute for injuries done to the public lands, "•S-''*'5^*-
buildings, or other ])roperty of his county.
Sect. 43. If a public officer required bylaw to account with and to grivo no-
pay over money to the county treasurer, fails to do so for ten days after p,"bnc 'officer'^''
the time prescribed by law therefor, the treasurer shall give notice iMistopnyover
thereof to the district-attorney, who shall forthwith institute the neces- ibsa.'ai, § 4.
sary proceedings for the recovery of the amount due.
Sect. 44. In the county of Saffolk, the treasurer of the city of Bos- of Suffolk,
ton shall be the county treasurer. ilif, -hs-.V^.
Sect. 45. In the county of Nantucket, the treasurer of the town of of Xantuckct.
Nantucket shall be county treasurer. ^' *• '*' * ***•
Sect. 46. No person holding the office of attorney-general, district- incompatibiu.
attorney, justice of the superior court, clerk of the courts, or sheriff, if/g. ]4,§w.
shall be county treasurer. it^a. ii».
BOARD OF EXAMINERS.
Sect. 47. In each county, except Suffolk and Nantucket, the iudge Board of pxam
1 • ^ i' . I 1 . * .11 t 1 ... 1 . 1 iS T iners, ol whom
and register 01 the proltate court, and the clerk ot the courts, shall be a tocousist.
board of examiners for the county, and if two of said offices are held }^f\Jj*'A'^f".,
by the same person in any county, the sheriff of such county shall be a 4,5.'"
member of the board. ?f ^^- "' 55 '■»•
Sect. 48. The board shall examine the accounts of the county com- to examine
missioners for services rendered in the discharge of their duties ; and if Mmmlssiouers.
it aijiiears that the accounts ought to be allowed, they shall make a cer- }*-.s- '■•.; § ■'■<■
tincate thereof upon the same.
Sect. 49. The members of the board shall each be paid at the rate compensation
of tiu-ee dollars a day for every day employed in the discharge of their k;s. 14, §40.
duties, and ten cents a mile for travel to and from the ])lace of their
meeting ; and their accounts shall be audited and settled by the county
treasurer.
BOARD OF ACCOITNTS IX SUFFOLK.
Sect. .50. In the county of Suffolk, the judge of the probate court in Suffolk,
and the justices of the jiolice court of the city of Boston shall be a countstocxam-
board of accounts, three of whom shall constitute a quorum; who shall ineac<;ouut8,&c.
13*
150
SHERIFFS.
[Chap. 17.
Koard of ac-
counts iu Suf-
folk.
U.S.H,§§ 41,
4'>.
1K43, 7, § 1.
1S«, 61, §§ 1, 2.
compenBatiou
meet quarter yeai-ly, and as much oftener as may be necessary, to ex-
amine and allow bills of costs, accounts, and charges arising in said
police court and in the maintenance and keeping of the prisoners in the
jail of the county of Sufi'olk, and of other ex])enses and charges in
keeping said jail and other places of continement and punishment iu
said city. They shall certify such accounts, charges, and expenses, as
are allowed by them, by an indorsement thereon addressed to the juib-
lic officer by whom the same are payable. They shall each receive
three dollars a day while employed in the discharge of said duties.
Sheriffs to be
sworu aud give
lionil.
Iv'. S. 14, § 58.
I. ■>.-.•!, m.
1^9, ItflS.
vacancies la
office of, how
liiled.
U. S. 14, §§ 56,
(», 03.
IBoli, 173, § S.
mav .appoint
(i'paties.
It. S. 14, § 59.
bonds of, to be
annually exani-
iiK'd by supe-
rior court, &c.
K. S. 14, § 03.
1S59, 190.
sureties of,
may be dis-
charged, when,
.tc.
K. S. 14, § 61.
l!i59, 196.
penalty on,
for negl.'ct to
give bond.
li. S. 14, § 03.
1S39, 191i.
bond of, may
be sued, .V-c.
K. S. 14, §§M,
(W.
17 Mass. 507.
SHERIFFS.
Sect. 51. Every sheriff, before perfonning any official act by himself
or deputy, shall be sworn, and sliall give to the treasurer of tlie common-
wealth such bond with sureties as the su])erior court shall direct and
apjirove, with condition that he shall faithfull)- perform his own duties
and be responsible for all his de])Uties.
Sect. 5li. If a vacancy occurs in the office of sheriff in any county,
the governor with the advice and consent of tlie council may a|)]ioint
and commission some person to fill the same, who shall liold his office
until anotlier is elected and qualified. Every sheriff so ajipointed and
qualified shall give immediate notice thereof to the several coroners of
his county.
Sect. 53. Each sheriff may appoint deputies, who before jiroceeding
to execute any process shall be sworn.
Sect. 54. The superior court shall once in each year examine into
the sufficiency of the official bonds given by the sheriffs ; and if it a])-
pears that any such bond is insufficient, the court shall cause a record
thereof to be made by their clerk, give notice to the sheriff, and require
him to give a new bond to the satisfaction of the court, within such time
as they order.
Sect. 55. When a surety upon the official bond of a sheriff, or the
heirs, executors, or administrators, of such surety, shall, in the county of
the sheriff', petition the su]ierior court to be discharged ii-oni the bond,
the court shall cause the sheriff to be served with an attested co]iy of
the jietition, and shall require him to give new security, to the satisfac-
tion of the court, at such tiiae as they order. Upon new security being
given, such surety, his heirs, executors, and adniiuistrators, shall be dis-
charged from further responsiliility on the bond.
Sect. 56. If a sheriff" neglects or refuses to give bond as required in
this chapter, lie shall forfeit one hundred and fifty dollars for each
month's neglect, and the attorney-general shall prosecute for the same ;
and the siqierior court shall forthwith certify the fact of such neglect or
refusal to the governor and council, and to the attorney-general. Unless
such sheriff" satisfies the governor and council that there was reasonable
cause for such neglect, and gives security to their satisfaction within
t-iienty days after the date of such certificate, the governor with the
advice and consent of the council shall remove him from office.
Sect. 57. When the condition of the official bond of a sheriff" is
broken, any person who has recovered judgment against the sheriff", his
executors, or administrators, for a cause or injury which constitutes a
breach of the condition of the bond, or has obtained an allowance of
his claim against the estate of the sheriff" if settled as insolvent in the
probate court, may at his own expense institute ami prosecute a suit
thereon in the name of the treasurer. The writ shall be indorsed by
the person for whose benefit the suit is instituted, or his attorney, and
like ])roceedings shall be had thereon as in a suit by a creditor on an
administration liond. The amount of such judgment or allowance, or
such part thereof as remains unsatisfied, with the interest due thereon,
shall be the sum for which execution shall be awarded.
Chap. 17.] sheriffs. , 151
Sect. 58. Actions for the malfeasance or nonfeasance of a sheriif or Actions a j.-unst
Iiis de]iuties, m;iy be sued against the executors or administrators of suJ.'!";'.; '^'^■' '"
such sherift'. in Uke manner as if the cause of action survived at common '\i^- 'li^ fJ';
law. See Oil. 1^7.
Sect. 59. The treasurer of the commonwealth shall deliver an at- Treasurer to
tested co]iy of the official bond of any sheritt' to any person applying of^'ierirs'"'^
and paying therefor ; and such copy shall be received as competent evi- boniis. _
denee in a case relating to the bond ; but if the execution of the bond ' ' '
is disputed, the court may order the treasurer to bring the original into
court, for the jiurposes of the trial.
Sect. 60. A sherift' shall not be arrested upon mesne process or exe- sheriffs not to
cution in a civil action. When judgment is rendered against him, Execut'iaus to
either in his ottieial or private capacity, ibr a sum of money, the execu- run "j^aiust
tion shall be issued against his goods, chattels, and lauds, but not lt°H.\'i,\i'-",S'i-
against his body. _ i Gray, si, no.
Sect. 61. If an execution issued against the goods, chattels, or Uabiutyof,
lands, of a person who is sheriif, shall be returned not satisfied, the J^'J.cn,'rMed"un-"
creditor may file before the governor and council an attested copy of satisfied.
such execution and return, and give notice of such proceedings to the ' "" '
sherift". If the sherift" does not within thirty days aiter such notice pay
to the creditor the whole amount of his debt with reasonable costs of
the copies and notiticutions aforesaid, the governor with the advice of
the council shall remove him from office.
Sect. 62. When a sherift" is removed under the preceding section, "po.n removal
the clerk of the court from which any execution against him has issued, tion may i^Bue
upon the return thereof unsatisfied, and .after the ap])ointment of another blj^j'^f j.'j,"'''
sheriff", shall make out alias executions in common form, as well against ii. s. 14, § ro.
the body, as the goods, chattels, and hinds, of the judgment debtor.
Sect. 63. Any default or misfeasance in office of a deputy-sherifi" Defaults of dep-
or jailer, after the death or resignation of the sherift" by whom he was do',,'li,', tc.', of '^'^
appointed, sliall be adjudged a breach of the condition of the official |'"'^''''- „
bond given by such sheriif. 7 isiass. W. '
Sect. 64. A sherift" or deputy-sheriif who appears in a court or be- l^.^f^ aurtdep-
fore a justice of the peace as attorney or counsel for any party in a suit, uty not to act
or draws, makes, or tills up a writ, declaration, ])loa, or process for such pena*it™^"
part V, or witli intent to procure himself to be emijloyed in the collection h.s.h,§§ 79,80,
' ,. ■ , , . ' 1 • i_. 1 i- 1 • <i Pick. 4S3.
oi a demaml, or in any manner to make gam or ])rotit tlieretrom, advises, see§8o,andCh.
counsels, or encourages any person, directly or iudiiectly, to commence i**- § •«•
a suit or process, shall forfeit fifty dollars.
Sect. 65. Sherifts and their deputies shall serve and execute, within shall serve
their counties, all writs and precejjts lawfully issued to them ; may serve serve'whor"*''
writs or other processes in cases wherein a county, citv, town, parish, their towns, .
... . ^ ,,-,... • * i 1 *. •*! «S:e., are oarties,
religious society, or any school tlistrict, is a party or interestea,notwitn- &c.
standing said officers are members of such corporations; and may sum- ju^eg^ J."""''
mon anil attend juries for assessing damages sustained by locating turn- k. s. h, §§ as,
pike roads and railroads, when not members of such corporations. tvu-k. 40.5.
Sect. 66. Tliey may serve by copy by them attested, all demands, may serve de-
notices, and citations, and their returns of'service thereof shall be prima^ 7opf!'' ^'''' ''^
facie evidence ; but this provision shall not exclude the service thereof
by other jiarties.
Sect. 67. They may require suitable aid in the execution of their may com-
office in a criminal case, or for the preservation of the peace, or for the S!"s'' i'4,''§ 72.
apprehending or securing of a person for a breach of the peace ; and 1, Gray^ss.
may require like aid in cases of escape or rescue of persons arrested seech.'is, § r^,
upon civil process. _ and Ch. 103, §10.
Sect. 68. They may execute precepts in their hands at the time of may serve
their removal from office ; and in ease of a vacancy in the office of sher- X'ri'iT's remo-
ifi; every cle]mty in office under him, having a writ or precept in his jJ;''g'''J™ ?™o'*'
hands at the time such vacancy happens, shall have the same authority,
152
CORONERS.
[Chap. 17.
Sheriffs to at-
tend courts, »&c.
IS5U, 25?, § ;i.
(^omponaation
.-.Howeil to, iu
riti^h couuty.
1S5U, Uo7, § 1.
to render ac-
count and pay
over money re-
ceived.
K. S. H, § 90.
1859, 237, § 2.
to make re-
turn of money
received, tte.,
and attendance
on courts.
Penalty.
1»43, 75, §§ 4, 5.
1850,31.
1857, 40.
IS-W, -Hi, § 1.
1S59, 257.
Secretary to
furnish blanks.
IS43, 75, § 4.
1850, 31, § 2.
and shall be under the same oblig.ation, to serve, execute, and return,
such writ or preee])t, as if the sheriff had continued in office.
Sect. 69. Sheriffs shall attend all courts in their respective counties,
and meetings of the county commissioners when so ordered by the
board.
Sect. 70. The sheriffs shall receive annual salaries payable quarterly
from the treasury of their respective counties, as follows : Of Biirnsta-
ble, four hundred dollars; of Berkshire, eight hundred dollars; of Bris-
tol, one thousand dollars; of Dukes County, two hundred dollars; of
Esse.x, fifteen hundred dollars; of Franklin, seven hundred dollars; of
Hampden, eight hundred dollars ; of Ham))shire, seven hundred dollars;
of Midilk'sex, two thousand dollars; of Nantucket, two hundred and
fifty dollars; of Norfolk, one thousand dollars; of Plymouth, six hun-
dred dollars; of Suffolk, twenty-live huntked dollars; of Worcester,
eighteen hundred dollars.
Sect. 71. The sheriffs shall keep a true account of all fees and
moneys received by virtue of their offices, and annually on or befoi'e
the fifteenth day of December render to the treasurers of their counties
under oath a true account thereof; and at the same time pay over to
said treasurers all such moneys.
Sect. 72. They shall annually on or before the fifteenth day of Oc-
tober, return to the secretary of the commonwealth, under oath, a true
account of all moneys received by them from all sources by virtue of
their office, for the year ending the last day of the ])receding month ;
designating the amount received from the county treasurer, ami from
all other sources ; and specifying the amount received by them for fees
in civil and criminal processes; with a statement of the number of days
they have attended upon a court of record and the county commission-
ers; and u])on more than one at the same time. If a sheriff neglects
to make such return he shall forfeit two hundred dollars.
Sect. 73. The secretary shall annually furnish the sheriffs of the
several counties with blank forms for the returns required by the jjre-
ceding section, and shall lay said returns before the legislature.
Coroners to be
sworn, &c.
R. S. 14, § 93.
bonds of, to
be examined by
superior court
R. S. 14, § 94.
1859, ISH.
Surety may be
discharged.
1!. S. 14, §95.
1,M59, l'.):i.
See § 55.
Pe?ialty fornej^-
lectiny to j^ve
bonds.
Suits on coro-
ners' bonds.
K. S. 14, § 90.
when to serve
process.
Jt.S.14,§§97,98.
19 rick. 339.
21 Pick. 535.
CORONERS.
Sect. 74. Coroners, before entering nyion the duties of their office,
shall be sworn and give bond in the manner required of sheriffs.
Sect. 75. The superior court .shall once in each year examine into
the sufficiency of the official bonds given by the res))ective coroners;
and if it a]>pears that the bond of any coroner is insuflicient, shall cause
a record thereof to be made by the clerk, give notice to such coroner,
and require him to give a new bond, to the satisfaction of the court,
within such time as they order.
Sect. 76. When a surety iijwn the official bond of a coroner, or the
heirs, executors, or administrators, of such surety, jietition the siqierior
court in the county of the coroner to be discharged from such bond, like
proceedings shall be had thereon as are jirovided in case of a similar
petition by a surety on a sheriff's official bond.
Sect. 77. If a coroner neglects or refuses to give the bond required,
or if the condition of his bond is broken to the injury of any person,
he shall be liable to removal from office, and be subject to like penalties
as sheriffs are in like cases ; and any person interested shall have reme-
dies upiin the official bond of the coroner in like manner as is provided
in the case of official bonds given by sheriffs.
Sect. 78. Every coroner shall within Jiis county, when the .sheriff is
a party, serve and execute all writs and precepts, and perform all other
duties of the sheriff; and may serve and execute all such writs and ])re-
cepts where any county, town, parish, religious society, or school tlis-
Chap. 17.] commissioners of insolvency. — registers of deeds. 153
triet, is a party or interested, notwithstanding he is at the time a mem- ' Met. 508.
ber of sufh coiTioration. 1 Gray, si.
Sect. 79. When the office of sheriff is vacant, the several coroners Coroner, when
of the county may jierform all the duties required by law to be per- Iu.^o'/s™riff"
formed by the sheriff, until another sheriff is appointed or elected and u. s. h, § iw.
qualified, and they have notice thereof. ai^ic!^'^''""^*
Sect. 80. Sections sixty-four and sixty-seven of this chapter shall ij,- ®- "■ 5§ '->
apply to coroners as well as sherifis.
COMMISSIONERS OF INSOLVENCY.
Sect. 81. Commissioners of insolvency before entering upon the CommiBsioners
discharge of their duties shall be swom. If a vacancy occurs in the be '"j^."rn'f? Ja °
office of commissioner of insolvency in any county, the governor with oancies in office
the advice and consent of the council shall appoint some person to fill "ws'THf "af'
the same, who shall hold his office until another is elected as provided isso, i"3, §8.
in chapter ten.
REGISTERS OF DEEDS.
Sect. 82. The county of Berkshire is divided into three districts for Districts in
the registry of deeds, as follows : — Berkshire.
The towns of Lenox, Pittsfield, Richmond, Stoekbridgc, Lee, Tjt- MitUiie.
ingham, Becket, Washincton, Peru, Hinsdale, and Otis, constitute the .^''>'7,'""'°-
middle district, and the office thereof shall be ke])t in the town of Len- it. s. n, §§ 110,
ox; the towns which lie noi-th of the middle district constitute the lilj-'l^j"^'
northeiTi district, and the office thereof shall be kept in the town of iws *•
Adams; and the towns which lie south of the middle district consti- *""
tute the southern district, and the office thereof shall be kept in the
town of Great Barrington.
Sect. 83. The county of Bristol is divided into two districts for the in Bristol,
registry of deeds, as follows : —
The city of New Bedford, and the towns of Westport, Dartmouth, southern,
and Fairhaven, constitute the southern district, and the office thereof f^]l"j™'
shall be kept in New Bedford ; the other towns in said county consti-
tute the northern district, and the office thereof shall be kept in the
town of Taunton.
Sect. 84. The county of Middlesex is divided into two districts for in Middlesex,
the registry of deeds, as follows: —
Tlie city of Lowell, and the towns of Dunstable, Tyngsborough, xorthem.
Dracut, Tewksbury, Billeriea, Chelm.sford, Cariisle, Wilmington, Little- j'".;!""^'""-
ton, and Westford, constitute the northern district, and tlie office thereof isjuj iib.
shall be kept in the court house in Lowell; the other cities and towns
in said county constitute the southern district, and the office thereof
shall be kept in the city of Cambridge.
Sect. 85. Each of the other counties shall continue to have an office in other coun-
for the registry of deeds for such county in a shire town thereof. l'^"^ j^_ ^ ,03
Sect. 86. Every register of deeds shall be sworn before one or more negister to be
of the county conmiissioners, or in the county of Suffolk before one ^"n,™ '"'' ^' °
or more of the aldennen of Boston, and under their direction respec- R- s. h, § 102.
tively shall give bond to the county for the faithful discharge of his
duty.
Sect. 87. In case of the death, resignation, or removal, of a register may be ap-
of deeds, in the county of Suffolk the su]ierior court, and in any other {^""^ses ™'^"
county the county commissioners at a meeting hehl at the place of tlieir n. s. 14, §106.
next regul.ar meeting, sh:;!! forthwith appoint on their records some suit- "^'"'' '*'■
able person residing within the district to Vie register of deeds until the
vacancy is filled Vjv a new election, as provided in chapter ten.
Sect. 88. When a register of deeds, upon presentment of the grand may be re-
jury, is found guilty of misconduct in discharging his official duties, or by ™°^<=''-
'20
154
EEGISTERS OF DEEDS.
[Chap. 17.
K. S. 14, § 105.
1859, 19(i.
Ee^ster must
reside where of-
fice is kept.
K. .S. H, § 103.
18.37, 180.
1855, 79.
Deeds, where
to be recorded.
K. S. 14, § 114.
R. S. 5!i, § 22.
1«7, ISO, §§ 1, 4.
1858, 254.
Special provis-
ion respecting
Barnstable.
K. S. 14, § 115.
Reg;ister to
keep book for
notiuj^ receipt
of deeds.
K. S. 59, § 23.
reason of infirmity of body or mind is incapable of rig-htly discharging
in person tlie duties of his office, the county commissioners, or in the
county of Suflblk the superior court, shall upon reasonable notice remove
him from office, and may order the books, jiapers, and other things be-
longing to the office, to be delivered to their clerk, or to a new register
•when appointed or elected.
Sect. 89. Every register of deeds shall reside in the citj- or town
where tlie office of his registry is required to be, and sliall there keep
all books, records, deeds, and papers, belonging to his office, and shall
have such office open to the public every day except Sundays and i>ub-
lic holidays.
Sect. 90. Instruments required to be recorded in the registry of
deeds, shall be recorded in the registry of the county or district where
the estate lies, and in all things relating to the register or registry of
deeds, each district therefor shall be deemed to be a county.
Sect. 91. In the county of Barnstable, all records, deeds, and other
instruments, made in pursuance of chapter one hundred and eiglit of
the statutes of the year one thousand eight hundred and twenty-seven,
and chapter forty of the statutes of the year one thousand eight hun-
dred and twenty-eight, shall have the same effect as the original records
of such deeds and instruments in the registry of said county would
have had. •
Sect. 92. Every register of deeds shall keep a book, each ]iage of
which .shall be divided into si.x columns, with titles or heads, in the fol-
lowing tbrm : —
Date of
reception.
Grantors.
Grantees.
Town whore the
lands lie.
To whom delivered,
after bein;' recorded.
Fees received.
Deeds to be
noted therein
when received.
R. S. 59, § 24.
Manner of re-
cording- instru-
ments, &c.
1844, 104.
Certificate to be
made on deed
when recorded.
R. S. 59, § 25.
Form of index.
1845, 205, § 1.
Sect. 93. He shall enter in said book all deeds and instruments left
for record, and all copies left as cautions, in the order in wliich they are
received ; noting in the first column the day, hour, and minute, of recep-
tion, and the other particulars in the appropriate columns ; and every
instrument shall be considered as recorded at the time so noted.
Sect. 94. Every register shall record in a fair and legible hand-
writing or in print, and in continuous successive lines, u])on the pages
of the record book, all instruments he is required to reconl ; and shall
note on the record, before attesting the same, all erasures and interlinea-
tions made therein.
Sect. 95. He shall certify upon every instrument reconlcd by him,
the time when it was received, the number of the book, .-uid the page
wliere it is recorded.
Sect. 96. He shall keep two sets of indexes, each divided into five
columns, with titles or heads in one set as follows: —
Date of reception.
Grantors.
Gnontees.
Book.
Leaf or page.
And in the other set as follows : —
Date of reception.
Grantees.
Grantors.
Book.
Leaf or page.
Entries to be Sect. 97. He shall, within twenty-four hours after a deed or other
Srentv-fouf' instrument which he is liy law required to record is left for record, cause
hours', &c. the name of each and every grantor, grantee, or other jiarty, thereto, to
Chap. 17.]
REGISTERS OF DEEDS.
155
be entered at length and alphabetically in its appropriate index, and I8i5, 205, §2.
shall also, within a reasonable time after the same is recorded, aHix to
such entry the number of the book and leaf or page where it is re-
corded.
Sect. 98. "When the real estate of another person is sold or con- ProvisionB re-
veyed by a sheriff, coroner, constable, collector, or by any other authority of^i^a^f „ °''^''
•jiven by law, except in the cases mentioned in the following section, f;r.-intorofe8-
the person who owned the estate and from whom it passes shall, for the by sheriffs. 'ic.
juirposes of the two preceding sections, be considered as the gi'antor, if '^5, uus, s 3.
his name ajjpears in the instrument ; and if it does not so appear, the
grantor shall be entered as unknown, under the letter U.
Sect. 99. When a deed or other conveyance by executors, adminis- Deeds of execu-
trators, guardians, or persons acting under authority of an order of p^rtitton's of'
court, or of a resolve of the legislature, is left for record, the register i.-md, how in-
shall enter in the entry books and indexes of the grantors*, the names of \^^^ ^2, 5 1.
the testators, intestates, wards, and persons, whose estates are conveyed,
when the same appear by such deeds, and also the names of such ex-
ecutors, administrators, guardians, or other jiersons. When a decree for
the partition of land, or commissioner's return thereon, is so left for
record, the register shall enter in the entry books and indexes of the
grantors and grantees the names of all the persons whose estates plainly
appear to be affected thereby.
Sect. 100. Every register of deeds shall annually on or before the Reeistersto
fifteenth day of October, return to the seci-etary of the commonwealth {'urns to'eec'e^
a statement of the whole number of deeds and other instruments re- tarv, of number
coriled by him during the year ending the last day of the preceding r't.,.o'rded™&c.°
montli, the amount of fees received by him for recording deeds and J!^""II''- ,
other instruments; the number of legal pages of records covered by the 1^47^282!
registry of said deeds and instruments; and the expenses of his office J^'|^
over and above what is ]>aid by the county during the same time ; and
if a register omits or neglects to make such return, he shall forfeit fifty
dollars.
Sect. 101. The particulars required by the preceding section shall
be given in the following tabular ibi-m: —
Ko. of deeds
recorded.
No. of other
instruments.
Amount of fees
received for
deeds.
Amount received
for other iustru-
meuts.
Ko. of legal
pages cov-
ered.
,, , _ Form of such
Lxpenscs of office rc,uni6.
above what is paid jj^,; ,^j s ^
by county. ^ ' " * * *
Sect. 102. The secretary shall annuallv prepare and lay before the Abstract to be
■gislature an al ' "
ceding sections.
legislature an abstract of the returns made to him under the two pre- !-'!<i '«;'"« kg-
ifrlature.
)s:ir., 241, § 3.
Sect. 103. There shall be made within the first six months of each copies' of index-
year, or within such further time during the year as the commissioners J^J;^uai?y™v?th
or aldermen tiiink j)roper, at the expense of the several counties, by surnames as-
competent persons employed by the county commissionei-s, or in the brt[caiiv,''&cl
county of Suffolk by the alilennen of Boston, co])ies of the indexes to ims r"^- § 2.
the instruments recorded in their respective counties during the pre- 1^5712??.
ceding year, in which the grantors and grantees shall respectively be
assorted into distinct lists by their rcsjiective surnames, arranged in such
lists in the onler in which the deeds and other conveyances to which
they refer are left for record, and such lists shall be jjlaeed in alphabet-
ical order. The commissioners and aldermen may cause the Chiistian
names of the grantors and gi'antees, as well as their surnames, to be ar-
ranged in alphabetical order ,in sudi lists, when in their o])inion refer-
ences to the reconls will be ficilitated thereby. Such cojiies shall in
other respects be in the tbnn required for the indexes to the records.
Sect. 104. When they deem it expedient they may cause co]iies of Jj"°xororiiew
the indexes, or new indexes, to the records existing in the registries of indexes, may be
156
TOV/NS AND CITIES.
[Chap. 18.
made and print- deeds ill their respective counties, or of any part thereof, to lie made by
iM6'29M'§'3Ti- ^o'"*-' eompetent person at the charge of their respective counties, u])on
such phm, and in such manner, as will in their judgment best facilitate
references to the records ; and may cause the eo]iies of indexes, or new
indexes, to be printed at the cliarge of their res]>ective counties, for sale
at a price not less than the cost of printing, paper, and binding.
TITLE VII.
OF TOWNS AND CITIES.
Chapter 18. — Of the Powers of Towns, and the Election, Qualification, and
Duties, of Town Officers.
Chapter 19. — Of certain Powers and Duties of Cities.
Chapter 20. — Of the Census.
Chapter 21. — Of the Registry and Return of Births, Marriages, and Deaths.
Ch.\pter 22. — Of Workhouses and Almshouses.
Chapter 23. — Of Watch and Ward.
Chapter 24. — Of Fires and Fire Departments.
Ch.\pter 25. — Of Fences and Fence Viewers, Pounds, and Field Drivers.
CHAPTER 18.
OF THE POWERS OF TOWNS, AND THE ELECTION, QUALIFICATION, AND
DUTIES, OF TOWN OFFICERS.
powers xsd duties of towns.
Section
1. Towns, to be bodies corporate as hereto-
fore.
2. Bounds of towns.
3. Perambulations and renewal of boundaries,
every five years.
4. Notice of perambulation to adjoinina^ towns.
Penalty for neglect to give notice.
5. Monuments to be erected, except, &c.
6. Perambulations of towns adjoining other
states.
7. Penalty for neglect of selectmen.
8. Towns may sue and be sued, &c.
9. may hold property, make contracts, &c.
10. may grant money for certain purposes.
11. may make by-laws, and affix penalties.
12. Penalties, how recovered.
13. ToAvns may provide that a duty imposed in
a Iiy-Iaw may be done by an officer, &c.
14. By laws to be approved by superior court.
15. to bind all persons in the town.
Ifi. to be published.
17. Towns to provide book-case, for books, »tc.,
received from state.
IS. Kecoguizauoes by towns, how entered into.
meetings.
Section
19. Qualifications of voters in town affairs.
20. Annual and other meetings may be ad-
journed.
21. Warrants shall issue for all meetings —
may include two or more meetings.
22. Contents of the warrant, S;c..
23. If selectmen refuse, meeting may be called
by a justice of the peace.
24. If major part of selectmen die, resign, »S:c.,
the rest may call meetings.
MODERATORS.
25. At certain meetings, moderator to be cho-
sen.
2r>. During election of moderator, town clerk
to preside, &c.
27. Moderator's powers and dnti'^s.
2>t. No person shall speak without leave of
the moderator, &c.
29. Penalty for disorderly conduct in meet-
ings.
30. on moderator or other presiding officer
for reading, Ac, ballots, belore the poll is
closed.
Chap. 18.]
TOWNS — POWERS AND DUTIES.
157
electiox axd appointment of town
okficers.
Section
31. Tomi officers to be chosen. Town clerk,
&c. Officers to be sworn.
32. Certiiiii officers to be citosen by ballot.
33. If person elected constable does not accept,
new clioice to be made.
34. Penalty for neglecting to choose selectmen,
&c.
35. Meetings may be called by part of a board
of selectmen, in certain cases.
30. County commissioners may appoint assess-
ors ill certain cases.
37. Offii^ers to be appointed by selectmen. —
Sealers of weiglits and measures, &c.
38. Selectmen niny api)oint police officers.
39. Town clerks, to give notice to persons elect-
ed, that they be sworn, <tc.
40. Penalty for not tiking the oath of office.
41. Town offices vacated by removal from town.
42. Selectmen to appoint a temporary treas-
urer and collector.
43. Vacancies in town offices may be filled by
a new choice.
44. Exemption from liability to hold town of-
fices.
CLERK.
45. Town clerk shall record all votes.
40. administer oaths, and make record of
their administration.
47. Town clerk pj'o tetn.^ wlien chosen.
48. In case of death, &c., the selectmen may
appoint a clerk, &c.
SELECTMEN.
49. Penalty for eelectmtn acting, if not under
oath.
50. Selectmen to be assessors and overseers of
the poor, in case, &c.
ASSESSORS OF TAXES.
51. Assessors' oath.
52. Assistant-assessors, to bo sworn.
53. Penalty on assessor neglecting to take
oath.
TREASURER.
54. Town treasurer's duty. To give bond.
55. may sue on bonds, &c., tn his predeces-
sors— to prosecute for all forfeitures, ex-
cept, &c.
56. to prosecute for trespasses on public
property.
Section
57. Town treasurer may be collector of taxes.
5s. power and duty as collector.
59. to render accounts annually — compen-
sation of.
CONSTABLES.
60. Penalty for refusing to serve as constable,
&c.
Gl. Constables who give bonds may serve civil
processes in certain cases.
62. Time of filing bond to be noted. Remedies
to parties injured by breaches of the bond,
&c.
63. Constables may serve writs and processes
where their towns, &c., are parties.
G4. may serve certain demands and notices.
65. may require aid — not to act as counsel,
&c.
66. shall execute warrants of selectmen.
67. to comi>lain of breaches of certidn laws.
68. may convey persons and property taken,
to the jjul, &c., out of their town.
09. may serve warrants, in certain cases, in
any place in commonwealth.
70. may serve process in unincorporated
places, annexed.
COLLECTORS OF TAXES.
71. Constables to be collectors of taxes when,
Ac.
72. to give bond.
73. To\\^l may give collector certain powers of
treasurer in collecting taxes.
SURVEYORS OF HIGHWAYS.
74. Penalty for refusing to serve as surveyor
of highways.
75. Penalty on surveyors for neglect of duty.
70. Surveyors shall be liable to towns for such
deficiencies, in case, &c,
DISTRICTS.
77. Districts to have the powers of towns
given by this chapter.
78. Provisions for the district of Marshpee.
ABUSE OF CORPORATE POWERS.
79. Towns, how restrained from illegal appro-
priations of money, &q.
FINES AND FORFEITURES.
80. Fines and forfeitures.
POWERS AND DUTIES OF TOWNS.
Section 1. Towns shall continue to be bodies corporate with all the
powers heretofore exercised by them, and subject to all the duties to
which they have heretofore been subject.
Sect. 2. Tlie boundary lines of towns shall remain as now established.
Sect. 3. There shall be a perambulation of town lines, and they shall
be run and the marks renewed, once in every five years, by two or more
of the selectmen of each town, or such substitutes as they in writing
appoint for that purpose. After every such renewal the proceedings
shall be recorded in the records of the respective towns.
Sect. 4. Previously to a perambulation, the selectmen of the most
ancient of the contiguous towns shall give ten days' notice, in writing,
to the selectmen of the adjoining town, of the time and place of meet-
ing for such perambulation ; and selectmen who neglect to give such
notice or to attend either personally or by their substitutes, shall sever-
ally forfeit twenty dollars, to be recovered on complaint to the use of
14
Towns to be
bodies corpo-
rate.
K. S. 15, § 8.
13 Mass. 193.
Town lines.
K. S. 15, § 1.
Perambulation
of to^^^l lines.
U. S. 15, § 2.
notice of to
adjoining
towns.
penalty for
neglect.
K. S. 15, § 3.
Ib3i*, 135.
158 TOWNS — POWERS AND DUTIES. [ChAP. 18.
the commonwealth, or by action of tort to the use of the town whose
selectmen perform their duty.
MonnmcntB Sect. 5. The selectmen of the contiguous to'n'ns shall erect at the
T-^e r&*'^''' joint and equal expense of such towns, permanent monuments to designate
K. s. 15, §4. their respective boundary lines at every angle thereof, excejit where
such lines are bounded by the ocean or some permanent stream of water.
The monuments shall be of stone, well set in and at least four feet high
from the surface of the grounil ; and the initial letter of the resjiective
names of such contiguous towns shall be plainly and legibly cut thereon;
but it shall not be necessary to erect a new monument in a place where
a permanent stone monument two feet in height aliove the surface of the
ground already exists.
pprninhuiatinnB " Sect. 6. The Selectmen of towns bordering on another state, where
'm ''?thlT 't'ltes *'^® '^"^^ between the states are settled and established, shall once in
icfti. 15, § 0. ' every five years give notice to the selectmen or other proper municipal
officers of such towns in the other state as adjoin their towns, of their
intention to perambulate the lines between their adjoining towns.
Where such state lines are in dispute, the perambulations shall be made
once in every five years after the lines are settled and established. If
such notice and jiroposal are accepted by the officers to whom they are
made, a perambulation shall be made in the same manner as between
towns in this state. No boundary erected by authority of this state
and an adjoining state, shall be removed by such selectmen or other
municijial officers.
Penaltyforncg- Sect. 7. A selectman who refuses or neglects to perform any duty
!S°o ,^ ^^ , ^ required of liim by the three preceding sections, shall forfeit twenty dol-
6,7. lars to the use ot tlie commonwealth.
Towns may sue Sect. 8. Towns may in their corporate capacity sue and be sued by
ainibesuixi,&c. the name of the town, ami may appoint all necessary agents and attor-
1 jiot. 4?3. neys in that behalf.
may hold pro- Sect. 9. They may hold real estate for the public use of the inhabit-
peity. n'''ke ^^ig^ a^fi ^lay convey the same, either by a vote of the inhabitants or
E.'V.'is,'! ii!' by a deed of their committee or agent ; may hold personal estate for the
r*Mtw8'*4?r public use of the inhabitants, and" alienate and dispose of the same by
2'pick. 35i,':'!52. vote or otherwise ; may hold real and personal estate in trust lor the
support of schools and "for the promotion of education within the limits
of the town ; may make contracts necessary and convenient for the
exercise of their corporate powers; and may make orders for the dis-
may grant posal or use of their corporate projierty as they may judge necessary or
u°W\s 12 expedient for tlie interest of the inhabitants.
10; 23, § »; 24, Sect. 10. They may, at legal meetings, grant and vote such sums as
ur4?^H'f5Mi' they jii'l"'e necessary ibr the following purposes: —
i8as,'3s. ' For the su]i]iort of town schools ;
5fiiaBs.'272. For the relief, support, maintenance, and employment, of the poor;
ePicic. ioL For laying out, discontinuing, making, altering, and re]iairiiig, liigh-
10 Piok!4S5; ways and town ways, and for labor and materials to be used thei-eon;
23 I'iek V\ -^ °'' pi"OPi"'i"S t'l'e writing and publishing of their town histories ;
3 Mot. i(i:i. For burial grounds ;
s^aJsh. 530. For encouraging the destruction of noxious animals ;
ioCub1i.2oi. For all other necessary cliarges arising therein ;
* ma^/make by- Sect. 11. They may make" such necessary orders and by-laws, not
laws, and aflix i.epv,o;nant to the iaAvs of the state, for directing and managing the jn-u-
?t!"s. 'ft!§ 13. dential affiurs, ]n-eserving the peace and good order, and maintaining the
ri'k',k"'4c,2. internal jsolice thereof, as they may judge most conducive to the \\ell:ire
1 .Met.' 13(1." of the town; and may affix penalties tor breaches of such orders and
2 Cusi'i! sw'. by-laws not exceeding twenty dollars for one otienee.
Pcniiities, how Sect. 12. All jieiialties tor breaches of the orders and by-laws of a
u"s"i5"s'i3 ^°^^'" ™''^y '^^' i'<^'''o^'ei'''*^ o" complaint before a police court or a justice
See Ch.'i22,' ' of the peace, and shall inure to the town, or to such uses as the town
* "■ may direct.
Chap. 18.] towns — meetings. 159
Sect. 13. When a town in a In-law imposes a duty and affixes a Duties imposed
penalty lor rerusal or neclect to penorm the same, they may tlicrem ]iro- peribrmed.
vide that in case of such refusal or neglect the duty may he performed ikm. '.is^-
bv officers therein named, at the expense of the ])arty lial)le to ])erfonn
the same, and such expense may be recovered of him by the town in
an action of contract in the name of the treasurer, but the amount
recovered shall not exceed the ]>enalty fixed in the by-law.
Sect. 14. Before any by-law takes eifect, it shall be approved by By-inws to be
the superior court, or in vacation by a justice thereof, and shall with pJl'foTcourt.^"
such a]ipro\al be entered and recorded in the office of the clerk of K- s. i5, § 13.
the courts in the county where the town is situated, or in the countj' isw^^ja, §§1,2.
of Sutiblk in the office of the clerk of the superior court for civil jj^^.y^f^,
business. 2 Cu'sii. hn.
Sect. 15. Such by-laws shall be binding upon all persons coming to bind all
within the limits of the town, as well as ujion the inhabitants thereof town."^'"
Sect. 16. All bv-Iaws made bv a town shall be iniblished in one or .''v,?-,'^',| '*•
more newspapers jinnted in the county where the town is situated. ■.■ Cush. sni.
Sect. 17. Each town shall provide at its own expense some suitable ijX 'd! ^"'*"
cabinet or book-ease for the safe preservation of such books, rciiorts, and it. s. 15, § 1.5.
, ^1 . !• ii 1..1 1 i- ..1 . Towns to pre-
laws, as they receive irom the commonwealth, and tor every month s viiio book-rase,
neglect shall forteit ten dollars to the use of the commonwealth. f';- ,_ „ , „
■ Tin ■ . T • * 1 I'^-i'^* l'"», §§ 1, 2.
Sect. IfS. vV hen a town is required to enter into a recognizance, the Uii'L-niizauces
selectmen may by an order or vote authorize any person to enter into i{^s"T5,%s8
the recognizance in the name and behalf of the town, and it shall be mi. Ait of
binding like any other contract made by such town. No surety shall """"^ ™"° '
be requii-ed in such recognizance.
MEETINGS.
Sect. 19. Every male citizen of twenty-one years of age and upwards, QuaiificationB
(exeejit paupers, persons under guardiansliiji, and persons excludeil by "own'i'iSvii'rs.
articles twenty and twenty-three of the amendments to the constitution,) ^^"'™''; ™.''«*-
who has resided within the state one year, and within the town in which k. s. 15" ITr.'
he claims a right to vote six months, next iirccediniT a meeting for the !',r'i''';S*;,no
transaction ot town afturs, and wlio has paid ijy himself, or his parent, mi.
master, or guardian, a state or county tax, which within two years next ' ^'^''''' ^'^^'
preceding such meeting has been assessed upon him in any town ; and
every citizen who is by law excmjited from taxation, and in all other
respects qualified as aforesaid, shall have a right to vote at such town
meetings, upf)n all questions concerning town aflliirs ; and no other
person shall Ije entitled to vote at such meeting. .
Sect. '20. The annual meeting of each town shall be held in Feb- other meetings,
ruary, March, or A|)ril; and other meetings at such times as the select- jourued'"""'
men may order. Meetings maybe adjourned fi-om time to time, and I{.s.i5,§§i8,25.
to any ])lace within the town. wli'rrmits to
Sect. 21. Eiverv town meeting shall be held in pur.suance of a war- issmioraii
rant under the hands of the selectmen, directed to the constables or may include
some other persons appointed by the selectmen for that purpose, who J^.",t'?„™°''''
shall forthwith notify such meeting in the manner ]irescribed by the by- h. s. 16, §§ 19,
laws or a vote of the town. The selectmen may by the same wairant jojiass. 10.5.
call two or more distinct town meetings for distinct ]iuiiioses. 1:1 Piek. 3or,.
Sect. '22. The warrant shall express the time and place of the meet- 11VU5I1.264.
ing, and the subjects to be there acted upon ; the selectmen shall insert ,,°"JanJ^^'^
therein all subjects which may, in writing, be requested of them b}- any u. s. 15,' §§21,
ten or more voters of the town, and nothing acted n]ion shall have a legal , cush. tm.
operation, unless the subject matter thereof is contained in the warrant, n Cush. 208,
Sect. 23. If the selectmen unreasonably refuse to call a meeting, any 3 (jVay, 52r..
justice of the peace of the county, upon the application of ten or more y sckctmen^e.
legal voters of the town, may call such meeting by a wan-ant under his may' be caUeli
160
TOWNS -
• TOWN OFFICERS.
[Chap. 18.
by a justice of hand directed to the constables of the town, if any, otherwise to any of
ii.'sa5r§' 23- ^'"-' l"-'''*oiis applying therefor, directing them to summon the inhabitants
qualified to vote in town affiiirs to assemble at the time and place and
for the purposes expressed in the warrant.
If miyor part of Sect. 24. If by rcason of deatli, resignation, or removal from town,
scioctmen die, j^ niaior iiart of the selectmen thereof originally chosen vacate their office,
&c., the rest , i • • /,. n •
may call raeet^ thosc who remain m office may call a town meetmg.
ings
K. S. 15, § 21.
Jlodcrators,
how clioseti,
K. S. 15, § 21',.
dliriu;^' elec-
tion, town clerk
to Jireside, ,tc.
U.S. 16, § 27.
8. 202.
powers aud
duties.
K. .S. 13, §§ 28,
32.
no person to
speak without
leave of, &c.
K. S. 13, § 2'J.
Penalty for dis-
orderly conduct
in meeting8.
K. S. 15, § 30.
16 Mass. 385.
on modera-
tor, &c., for
reading, &c.,
ballots, before
poll is closed.
U. S. 15, § 31.
MODEEATOES.
Sect. 25. At every town meeting, except for the election of national,
state, district, an<l county officers, a moderator shall first be chosen.
Sect. 26. During the election of a moderator, the town clerk if
present shall preside ; if he is absent or there is no town clerk, the
selectmen shall preside ; and the town clerk and selectmen respectively
shall in such case have the powers and perform the duties of a mod-
erator.
Sect. 27. Tlie moderator shall preside in the meeting, may in open
meeting administer the oaths of office to .any town officer chosen thereat,
sliall regulate the business and proceedings of the meeting, decide all
cpiestions of order, and make public declaration of all votes passed.
Wlien a vote so declared liy hini is immerliatcly uiton such declaration
questioned by seven or more of tlie voters jiresent, lie shall make the
vote certain by polling the voters or dividing the meeting, unless the
to«'n has by a previous vote or their by-laws otherwise provided.
Sect. 28. No ])erson sliall speak in the meeting without leave of the
moderator, nor while another ]ierson is speaking by his permission ; and
all persons shall at his request be silent.
Sect. 29. If a person behaves in a disorderly manner, and after
notice from the moderator persists therein, the moderator may order
him to withdraw from tlie meeting ; and, on his refusal, may order the
constables or any other persons to take him from the meeting and con-
fine him in some convenient place until the meeting is adjourned. The
person so refusing to withdraw shall for such oflence forfeit a sum not
exceeding twenty dollars.
Sect. 30. A moderator or other presiding officer who at a town
meeting, before the poll is closed and without the consent of the voter,
reads, examines, or permits to be read or examined, the names written
on such voter's ballot, with a view to ascertain tlie cantlidate voted for
by him, shall forfeit a sum not exceeding fifty dollars.
Town officers to
be tjioseu.
1£. S. 15, § 33.
H..S. HI, § 10.
1S5S, llH.
Town clerk.
Selectmen.
Assessors.
0 Met. 4US.
Overseers of
the poor.
Treasurer.
Surveyors of
liiirhAvays.
Constaljles and
collectors.
Field drivers.
Fence viewers.
Surveyors of
ELECTION AND APPOINTMENT OF TOWN OFFICEES.
Sect. 31. At the annual meeting every town shall choose fi'om the
inhabitants thereof, the following town officers, who shall serve during
the year, and until others are chosen and qualified in their stead : —
A town clerk, who if present shall be forthwith sworn, either by the
moderator or a justice of the peace ;
Three, five, seven, or nine selectmen ;
Three or more assessors, and, if the town deems it expedient, three or
more assistant-assessors ;
Three or more overseers of the poor ;
A town treasurer ;
One or more surveyors of highways ;
Constables, who shall also be collectors of taxes unless other persons
are specially chosen collectors ;
Field drivers ;
Two or more fence viewers ;
One or more surveyors of lumber ; except that surveyors of lumber
Chap. 18.] xo'n-xs — town officers. 161
shall not lie so chosen in to'n-ns Inchnled in the district established by himbor.
chapter forty-nine, section one hundred twenty-[six] [one'] : '*^'"'' '"*■
Measurers of wood and bark, unless the town authorizes the selectmen Jioasurers or
to appoint them ; and _ ^™'"i' *<=■
All other usual town officers. other ofBcors.
All the town officers designated by name in this section shall be Officers to be
eworu.
sworn.
Skct. o'2. The election of town clerks, selectmen, assessors, treasurer, certain officers
constables, and the moderator of the meetings held for the choice of f,°[^J;j'''''"'™ ^j'
town officers, shall be by written ballots; and the election of all other k.s. is, §:«.
town officers in such mode as the meeting determines, except in cases T^iji^'Jit
otherwise provided by law.
Sect. 33. Every person chosen constable shall, if present, forthwith ifpersoneiect-
declare his acceptance or reftisal of the office. If he docs not accept, <;'i tonstatiie
, , , ^ , , . . , \ ^ does not accept.
the town sliall proceed to a new election until some one accepts the R. s. is, 507.
office and takes the oath.
Sect. 34. A town which neglects to make choice of selectmen or Penalty fornot
assessors shall forfeit to the use of the commonwealth a sura not exceed- mar&lf ^'^^'°^'
ing five hundred nor less than one hundred dollars, as the county com- k. s'. i5,'§ 35.
missioners shall order.
Sect. 35. If a to^Ti, at the annual meeting, fails to elect a full board Town meet-
of selectmen, or if any of the persons chosen refuse to act or omit to be hMcrtaki c-Iscs!
qualified according to law, the selectmen or selectman chosen and quali- ijvij, s.
ficd may sign warrants for town meetings until a full board is elected.
Sect. 36. If a town neglects to choose selectmen or assessors, or if county com-
the iK'i-sons chosen do not accept the trust, or having accejited it shall ^poiuf'a^esi''
not perform the duties, the county commissioners may apjioint three or ors in cortiiiii
more suitable persons within the county, to be assessors of taxes for u.''s^']5^55 36^
such town ; who shall have the powers, pertbrm the duties, and receive »'•
the cora])ensation, of assessors chosen by a town.
Sect. 37. The selectmen of each town shall annually in March or Town officers
Aiiril, appoint the following town officers, unless the inhabitants at their SSmen ''^
annual meeting choose them : — u. .s. is, § .38.
One scaler of weights and measures, and as many more as the inhab- lV. ' ' ^''' ^^ '^'
itants at their annual meeting determine, and thev may also appoint a dealer of
,,..., 1.1 1 .. ' .. ^' wei<fhts and
g.auger ot liquid measures; and tlie selectmen may at any tune remove measures, &c.
such sealers or gangers, and appoint others in their places ;
One measurer of wood and bark, and as many more aa the inhabitants Measurers of
at their annual meeting determine ; '■"""'^ •''"'' ''"'''^•
And in every town which has town scales for the weighing of hay, Superintendent
one or more jicrsons to have the superintendence thereof. "'' '>=«'*«='''•-■'*•
Sect. 38. They may at any time ap]ioint police officers, with all or Selectmen may
any of the powers of constables except the power of serving and exe- "n^'eo"! ''"''"'^
cuting civil iiroccss, who shall hold their offices during the pleasure of issi, wa.
, 4 Gray 34
the selectmen by whom they are a])pointed.
Sect. 39. After the election or ajipointment of to^Ti officers who are Town clerks, to
required to take an oath of office, the town clerk shall forthwith make j^^Ts'Sected,
out a list, containing the names of all such persons not sworn by the [''i'' ""jy ""''y
moderator, and a designation of the offices to which they are chosen, ij. s. 1.5, § ^w.'
and deliver the s.ame with his warrant to a constable, requiring him 1; f^y' ■';!;■
•I'll 1<»1 Tl' ^^^Yr ^■*^*
withm three days to summon eacli 01 such persons to appear and take
the oath of office before the town clerk within seven days after such
notice ; and the constable shall within seven days make return of the
waiTant to the town clerk.
Sect. 40. If a jierson so chosen and summoned, who is not exempt by Penalty for not
law from holding the office to which he is elected, shall not within seven ','|'\,'JB'ce'"' """^
days take the oath of office before the town clerk, or before a justice of K- s. 15, §40.
the peace, and file with the town clerk a certificate thereof under the ' "^' ^ '
hand of such justice, he shall, unless the office to which he is chosen is
14* 21
162
TOWNS — CLERK, SELECTMEN.
[Chap. 18.
Offices vacated
by removal
from town.
E. S. 10, §41.
1 Pick. 129.
Selectmen to
appoint tem-
porary treas-
urer and col-
lector, when,
&c.
1838, «.
1 Met. 521.
4 Gray, 253.
Vacancies in
to^vn offices,
how filled.
K. S. 15, § -12.
1855, S.
Exemption
from liability to
hold town oi-
fices.
K. S. 15, §§ 43,
W.
ii. S. 18, § 17.
that of const.ible or some other for which a different penalty i.s provid-
ed, forfeit live dollars.
Sect. 41. A person removing from tlie town in which he holds a town
office, thereby vacates such office.
Sect. 42. When the office of treasurer or collector of taxes is vacant
by reason of de.ath, remo\al, or other cause, or when the treasurer or
collector is prevented from ]ierforiiiiiio- tlie duties of his office, the select-
men of the town may by writiiio- umler their hands appoint a treasurer
or collector pro tempore, who shall lie sworn and give bonds in like
nianuer as treasurers and collectors chosen by towns, and hold his office
until another is chosen.
Sect. 43. When a vacancy occurs in a town office by reason of the
non-acceptance, death, removal, insanity, or other disability, of a person
chosen thereto, or by reason of a failure to elect, the town may fill such
vacancy by a new choice at any legal meeting.
Sect. 44. No person shall be obliged to serve in the same town
office two years successively ; and no person in commission for any
office of this state or of the United States, or who is a minister of the
gospel, or a member of the council, senate, or house of rejiresentatives,
or an engineman or member of a fire dej)artment, or who has been a
constable or collector of taxes of a town within seven years next jsre-
ceding, shall be obUged to accept the office of constable.
Clerk to record
all votes.
E. S. 15, 5 4-1.
13 Pick. 305.
to adniiuiater
oaths and make
record therof.
E. S. 15, § 45.
Town clerk pro
tern., when clio-
K. S. 15, § 49.
When select-
men may ap-
point town
clerk, &c.
K. S. 15, §§ 50,
61.
CLEEK.
Sect. 4.5. The town clerk shall record all votes passed at the meet-
ing at which he is elected, and at the other meetings held during his
continuance in office.
Sect. 4G. He shall administer the oaths of office to all town officers
who appear before him for that purjiose, and shall make a record
thereof, and of oaths of office taken before justices of the peace, of
which certificates are filed.
Sect. 47. When at a town meeting there is a vacancy in the offi;ce
of town clerk, or he is not present, the selectmen shall call n])on the
qualified voters present to elect a clerk /)ro tempore, in like manner as
town clerks are chosen. The selectmen shall sort and count the votes
and declare the election of such clerk, who shall be sworn to discharge
the duties of said office at such meeting; and be subject to like penal-
ties for not discharging them as town clerks are for neglect of the like
duties.
Sect. 48. When other duties than those mentioned in the preceding
section are required to be performed by the town clerk, and by reason
of death, removal, or other cause, there is a vacancy in such office, or
such clerk is ]irevented from performing such duties, the selectmen may
in writing under their hands appoint a clerk for the performance thereof,
who shall be sworn, and immediately after entering upon the duties of
his office make a record of such election or appointment.
Penalty for se-
lectmen acting
if not under
oath.
U. S. 15, § .'>4.
Selectmen to be
assessors, &c.,
in case, &c.
K. .S. 15, ^ 52,
S.J.
SELECTMEN.
Sect. 49. Every person elected selectman, who enters upon the per-
formance of his duties before taking tlie oath of office, shall forfeit for
each offence a sum not exceeding one liundred dollars.
Sect. 50. The selectmen shall be assessors of taxes and overseers of
the poor in towns where other persons are not specially chosen to those
offices, and when acting as assessors they shall take the oath required of
assessors.
Chap. 18.] towns — assessors, treasurer. 1G3
ASSESSORS OF TAXES.
Sect. 51. The assessors' oath of office shall be in substance as fol-
lows:—
You, being chosen assessors, [or an assessor,] for the town of for the Assessors'
year ensuing, do swear that you wUl impartially, according to your best skill and judg- ??"!•
nient, assess and apportion all such taxes as you are during that time directed to assess, *' ' * ^"
and that you will faithfully discharge all other duties of said office.
Sect. 52. Assistant-assessors, when chosen, shall be sworn, and shall Assistant-as-
iii their respective wards or districts assist the assessors in taking a list s""""", to be
of the ratable polls, in estiraating the value of the real and personal u. s. is, §5(i.
estate in said wards or districts, and in making out lists of persons
qualified to vote at elections.
Sect. 5.3. If a person chosen assessor, having notice of his election, poniiity on ns
neo^lects to take the oath of office, he shall forfeit a sum not exceeding .se8sorn(j,'iivt
„„" J ,, ° inyr to take oiith.
nity dollars. k. s. lo, § s:.
TEEASURER.
Sect. 54. The town treasurer shall give bond in such sum as the Town trcasur-
seleetmen require, with sureties to their satisfaction, for the fiithful dis- J^'s^'i^Vas
charge of the duties of his office ; shall receive and take charge of all i' Cush.'-iai). '
suras of money belonging to his town, and pay over and account for '' ^"^''' ""'
the same according to the order of such town or the officers thereof
duly authorized in that behalf.
Sect. 55. He may in his own name and official capacity prosecute to briny suit,
suits upon bonds, notes, or other securities, given to him or his jirede- *^y prosecute
cessors in office, and where no other provision is s])ccially made, shall for (orfciturus,
prosecute for all fines and forfeitures which inure to his town or the ij'^'sI'ibfMoo,
poor thereof '<■'•
Seit. 56. He shall prosecute for trespasses committed on any pulilic for trespasses
building or enclosure belonging to his town; and when a public liuild- J'|;m'»''I''^ I'lop-
intr is owned iiartlv by the town and iiartly bv the county, such iirose- it. s. h, §.54.
cutioii may be made either by the town or county treasurer, whichever ■ • • '■'■s "-
shall first institute the same.
Sei^t. 57. A town may at any meeting appoint its treasurer col- may be col-
lector of taxes ; and he may appoint deputies, who shall give such bonds 1™ s'.'^ij'^ s'lto'^''
for the faithful discharge of their duty, as the selectmen think jirojier. sjiet. loa.
Such collector and deputies shall have the same powers as are vested in
collectors of taxes.
Sect. 58. A treasurer so apjiointed collector, may issue his warrant poweranddu-
to the sheriff of the county, or his deputy, or to any constable of the ^ s'"5"ruf"
town, directing them to distrain the jiroperty or take the bodj- of any
person who is delinquent in the payment of taxes, and to piroceed in
like manner as collectors are required to do in like cases.
Sect. 59. The treasurer shall annually render a true account of all to account an.
his receipts and payments, and other official doings, to the town, and ^''sI'Ys §§'a
shall receive such compensation for his services as the town may deter- us.
mine.
constables.
Sect. 60. A person chosen to the office of constable, able to perform Penalty for re-
the duties thereof and not exempt, who refuses to take the oath and to ^" TOnstabTe?*^
serve in such office, shall forfeit twenty dollars. If he is present in town *c. ^
meeting and declares his refusal or neglects for seven days after being es.''' '*'^^'' '
summoned to take the oath of office or to pay such fine, he shall be
prosecuted therefor by the treasurer.
Sect. 61. Any constable who gives to the inhabitants of the town h,?°bmidR''n?ly
for which he is chosen, a bond with sureties in a sum not less than five serve civil pro-
hundred dollars to the satisfaction of the selectmen, with conditii:)n for cases.
164
TOWNS — CONSTABLES, COLLECTOKS.
[Chap. 18.
11^?, »S, § 2.
Ifial, W, §§ 1,2.
13 Met. 3U2.
2 Gray, 209.
Time of filing
bond to be not-
eii. KemedieB
ou boud, tfec.
lS-15, ro, §§ 1, 2,
3.
ISol, 9i, §§ 2, 3.
Coust.-xbles may
serve certain
writs, &c.
K. S. 15, § 72.
may serve cer-
tain (ii'-niands
and notices.
may require
aid — not to .act
:is eOimsel, ttc.
1£. .S. 14, 5j 72,
; ■.), )<u.
K. S. 15, § 77.
11 Pick.4.S.3.
to execute
warrants of se-
lectmen.
If. .S. 13, § 70.
to conii>lain of
bi'eaches of cer-
t.iin laws.
l:. S. 13, § 70.
may convey
liersous, &c.,
t J jail, &c., out
of their town.
K. S. 15, § 75.
may serve
warrants in eer-
t<un cases, in
any place in
state.
■1S47, 9S, § 1.
may serve
process ill uiiin-
eorpor.atcd
places, iSic.
11. S. 15, § 74.
the foithfiil performance of his duties in the service of all civil processes
comniitti'il to liiin, and causes the same, with the a]iproval of the select-
men indorsed thereon, to be tiled in the office of the town clerk, may,
within his town, serve any writ or other process in a personal action in
which the damages are not laid at a greater sum than one hundred dollars,
and any process in replevin in which the subject matter does not exceed
in value one hundred dollars, and any writ or other process under the
provisions of chapter one hundred and thirty-seven; and no constable
shall serve any process in a civil action until he gives such bond.
Sect. 6'2. The town clerk shall note upon every bond given by a
constable the time when the same was filed. Any jierson injured by a
breach of the condition of such bond, may at his own expense institute
a suit thereon in the name of the town, and like jiroceedings shall be
had as in a suit by a creditor on an administration bond. The writ
shall be indorsed by the persons for whose benefit the suit is brought,
and if neither of them is an inhabitant of this state, it shall also be in-
dorsed by some other responsible indorser residing in this state. If
judgment is for the defendants, execution shall issue for costs against
the indorsers, as if they were plaintiffs of record.
Sect. b3. Constables may serve such writs and processes as are de-
scribed in section sixty-one, and warrants and other processes in crimi-
nal cases, although their town, parish, religious society, or school district,
is a party or interested.
Sect. 64. They may serve by copy by them attested, all demands,
notices, and citations, and their returns of service thereof shall be pri-
ma/'acie evidence ; but this provision shall not exclude the service there-
of bjf other parties.
Sect. 65. They may, like sheriffs, require aid in the execution of their
duties. They shall not a]ipear in court or before a justice of the peace as
attorney or counsel for any party. The provisions of sections sixty-four
and sixty-seven of chapter seventeen shall apjily to constaliles.
Sei't. 66. They shall serve .all warrants and other ]irocesses, lawfully
directed t(.) them by the selectmen of their town, for notifying town
meetings or for other jmrposes.
Sect. 67. They shall take due notice of and prosecute all violations
of the laws respecting the observance of the Lord's day, to jirevent pro-
fane swearing, and against gaming.
Sect. 68. A constable in the execution of a warrant or writ directed
to him, may convey beyond the limits of his town, prisoners and prop-
erty in his custody under such process, either to the justice who issued
it, or to the common jail or house of correction of his county.
Sect. 69. If a person against whom a warrant is issued tijr an alleged
offence committed within any town, before or after the issuing of the
warrant, esca])es from or is out of the town, any constable of such town
to whom the warrant is directed, may pursue and apprehend him in auy
place in the commonweaUli.
Sect. 71). When an unincorporated place is annexed to a town for
the jiurjiose of taxation, the constables of such town shall have and ex-
ercise in such uuincoi'porated place the same powers as if it were a j)ait
of their town.
Collectors of
taxes, when
constables to be.
1{. S. 15, §§ (i»,
Ts. c, Gr.av, 387,
502. 7 Gray, 1.32.
to give bond.
K. S. IS, § SO.
'.) Met. 4119.
i; Tush. 229.
2 Gray, 298.
12 Cush. 112.
COLLECTORS OF TAXES.
Sect. 71. Towns may choose suitable persons to be collectors of
taxes therein. If the persons chosen refuse to serve, or if no person is
elected or appointed, the constables of the town shall be the collectors
of taxes.
Sect. 72. Every collector shall give bond to the town, in such sum
as the selectmen require, and with sureties to their satisfaction, for the
faithful discharge of the duties of his office.
Chap. 18.] towns — districts, &c. IG-j
Sect. 73. Any town, at a meeting notified for that purpose, may Town may give
authorize their collector to use all means of collecting the taxes which pmrersoftrc^-
a town treasurer when aiipoiuted collector may use. unr, incoiiect-
J Taxes.
SURVEYOES OF HIGHWAYS.
Sect. 74. If a person chosen surveyor of highways refuses to serve, Penalty for re-
he sliall forfeit a sum not exceeding ten dollars ; but no person shall be |^s™ufv'°-o'"f
obligeil to serve oftener than once in three years. iiighways.
Sect. 75. A sur\-eyor of highways A^ho neglects the duties of his peiwity'mi'*™!--
office, shall forfeit ten dollars for each neglect; and he may be prose- f^.Tur^ for ueg-
cuted by indictment for any deficiency in the highways within his limits ufs°i5,"§5's2,
occasioned by his fault or neii'lect. ^}-, . ,„,
c, -,i "^T/- ■ 1 r' .• 1 /■ • • 1 10 Met. 108.
Sect. i». If a town is sentenced to pay a nne for a dehciency m the Surveyors lia-
highways or town ways therein, any sur\ eyor through «hose tiiult or Ii!.'tiJj™'ci™'^i'u'^
neglect such deficiency existed, shall be liable for the amount of such fine ^sf. ■s.e-
and all costs, to be recovered by the town in an action of tort. I852,'3i2. '
DISTRICTS.
Sect. 77. All places now incorporated by the name of districts. Districts to
except Marshpee in the county of Barnstable, shall have all the jjowers {'aVnK."""^ "^
and privileges, and be subject to all the duties, to which towns are enti- i<- s. lii, § a.
tied or subject by tlie provisions of the diajiter.
Sect. 78. The district of Marshpee, excepting such parts thereof as Provisions for
are for the purpose of taxation or otherwise annexed to the towns of ','^''1'^.'™'°'
T-, 1 ' . . ... .tlurslipee.
Falmouth and Sandwich, shall continue to be a district, with all the ^.<n, m^.
powers, privileges, duties, and liabilities, mentioned in the act estab- "■■*•'■'■>*'•
lishing said district, and acts specially relating thereto.
ABUSE OF CORPORATE POWERS.
Sect. 79. When a town votes to raise by taxation or pledge of its Towns, how re-
credit, or to jiay from its treasury, any money, for a puiiiose other than nh-'aUxpin-o^
those for which it has the legal right and power, the supreme judicial iirirnions of
court may ujion the suit or petition of not less than ten taxable inhab- jMr.'fir.
itants thereof, briefly setting forth the cause of comiilaint, hear and de- ;,''','*''',■ ^";"-.
termme the same in equity. Any justice of said court may in tenn
time or vacation issue injunctions and make such orders and decrees as
may be necessary or jn-ojier to restrain or prevent any violation or abuse
of such legal right and power, until the final determination of the cause
by said court.
FIXES AND FORFEITIJRES.
Sect. 80. Fines and forfeitures imposed by this chapter, except in Fines and for-
cases otherwise provided for, may be lecovered by complaint or indict- k' s'To,'';§ s .in
ment to the use of the commonwealth, or by action of tort to the use 31,40,54, srjool
of the town where the offence is committed. itaa.ias.
166
CITIES.
[Chap. 19.
CHAPTER 19.
OF CERTAIN POWERS AND DUTIES OF CITIES.
Sectios
1. Powers, &c., of cities to continue.
2. Laws relating to towns to apijly to cities,
&c.
3. Constables may be removed for miscon-
duct.
4. When wards arp divided, officers to act in
same numerical wards till others are chosen.
5. Officers elected after division to hold till
next annual meetiufj^, &c.
6. Vacancies in board of mayor and aldermen
by nou-electiou — how filled.
7. If mayor isuot elected, who to perform the
duties.
8. Vacancies in city or ward offices — how
filled.
Section
y. Ward officers, duties of, and proceeding's in
case of absence of.
10. Removal from ward not to disqualify city
officers.
11. Five preceding sections to be in force only
where adopted.
12. Mayor and aldermen, &c., may hold other
offices.
13. City councils may reg^ulate erection of bal-
ustrades, &c.
14. Regulations of carriages.
15. City officers may prosecute, &c.
Ifi. Divisions of wards in cities.
17. *' Mayor and aldermen," in Boston, how
construed.
Powers, &c., of SECTION 1. The several cities shall continue to have and exercise
ti'.me.*** """' ■'ill the powers and privileges, and be subject to all duties and liabilities,
K. s. 15, § 80. mentioned in the acts establishing such cities and in the several acts
relating thereto.
Laws relating' Skct. 2. Chapter eighteen and all other laws relating to towns, shall
to towns to ap- apply to cities so far as they are not inconsistent with the general or
K. S. 2, § o,d. ' special provisions relating thereto; and cities shall be subject to tlie lia-
'''■ bilities, and city councils shall have the powers, of towns ; the mayor
and aldermen shall have tlie powers and be subject to the liabilities of
selectmen, and the city elerk.s, treasurers, and other city officers, those
of corresponding town officers, if no other provisions are made in rela-
tion thereto.
Mayor may re- Sect. 3. The mayor of a city may, with consent of the board of al-
I'lSv^'oT*""'''''' fl^i'"i6n, remove from office a constable for gi-oss misconduct.
When wards Sect. 4. At the first election held after a new division of wards in
a city, the ward officers chosen under the preceding division shall offici-
ate in the numerical ward for which they were chosen, and shall con-
tinue to act there until others are chosen and ([ualified in their stead.
Sect. 5. Officers chosen at a meeting called by the mayor and alder-
men of a city, after such new division into wards, shall hold their offices
until the next annual meeting, and until others are chosen and qualified
in their stead.
Sect. G. If, at or after the time for the mayor and aldermen of a
city to enter upon the discharge of their duties, it apj)ears that the
iiy mill election, niayor or the full number of aldermen are not elected, such of said offi-
cers as are elected shall issue warrants for the election of a major or
such aldermen as may be necessary. If neither of said officers is
elected, the president of the common council shall issue such war-
rants.
Sect. 7. If by reason of non-election there is no mayor of a city,
the chairman of the board of aldennen shall discharge tlie duties of the
office until a mayor is chosen and swoiti.
Sect. 8. When it a]ipears to tlie mayor and aldermen, that there is
ward
for
elections to fill such vacancy at such time and place as they deem ad-
visable.
Sect. 9. Ward officers authorized to act at elections, shall attend
and perforin their respective duties at the times and places ap])ointed
for elections of officers, whether of the United States, state, city, or
an- divided, of-
ficers of, how
to act.
1.S51, 167, § 1.
Officers elected
after rlivision to
liold till, &c.
l.Kjl, 107, §2.
Vacancies in
liD.ird of mayor
hI al.loniv
IS+5, 217, §§1,2.
See § 11.
If mayor is not
elected, who to
perform duties.
ISM, 217, §4.
See § 11.
Vacancies in
city or ward of- a Vacancy either in their board, tlie common council, or any city or ward
i'i5]5%']'5i"§V ' office, to be filled by j)opular election, they shall issue their warrant foi
See§ 11.
AVrird officers,
d ri-M of.
1S15, 217, § 3.
.S.Ǥ 11.
Chap. 20.]
CENSUS.
167
l&ol, 70, §§ 1, 3.
wards, ami shall make and sign the regular returns of the same. If a ■ward Wani officers
officer is absent from a meeting, the office may be filled, joro to>!^)orf, ^™'""^'"'"'''
by the voters present, by nomination and hand vote if they so determine.
Sect. 10. City officers wlio were residents of tlie ward at the time Removal from
of their election, shall discharge the duties of their offices notwith- quaLiry°city offl-
standing their removal afterwards into any other ward of the city. ?S-'oi~
Sect. 11. The five preceding sections shall be in force in those cities See|n'.'
only which have adopted chapter two hundred and seventeen of the stat- Kve precedinsr
utes of eighteen hundred and forty-five, or which shall adopt said sections, fn^^ce.^ """^
Sect. 12. The mayor and any alderman or member of the common i**5> 2i~, § i.
council of a city which has adopted chapter seventy of the statutes of mayhoM otuer
eiifliteen hundred and fifty-one, or which .shall adopt this section, may offices, &e
at tiie same time hold any other office under the city government to
which he may be chosen, except one of emolument.
Sect. 1:5. The city council of each city may make such rules City councils
and regulations for the erection and maintenance of balustrades, or "rectroSo'f tal-
other projections upon the roofs or sides of buildings therein, as the ustradcs.&c.
safety of the public requires, with penalties for the violation thereof, '"'
not exceeding twenty dollars for each otience ; l)ut no such rule or regu-
lation shall take ettect until the same has been publisheil at least sixty
days in some newspaper printed in the city or in the county in which
the city is situated.
Sect. 14. The mayor and aldermen of a city may make rules and Regiiiations of
orders for the regulation of all carriages and vehicles used either JSj-Jol^r^i i, a.
wholly or in part therein, whether with or without animal j)0wer, with I'^^^^^f^
] penalties for violations thereof, not exceeding twenty dollars for one
ort'euce ; and may receive annually one dollar and no more for each
license, granted by them to a person to set up and use any carriage or
vehicle within such city. Such rules shall not take eflect until they
have been juiblished at least one week in some newspaper published in
the city or in the county in which the city is situated. This section shall
not impair the right of a city to make by-laws relating to the subject.
Sect. 15. The city marshal or other imncipal police officer, or the City officers
*' , ,^ Hi. iVi' J* •* 1-1 mav prosecute,
City treasurer, may prosecute tor all fines and loneitures which may ^c.- ^
iuiire to the city or the poor thereof, and may also ])rosecute for tres- j^,f -g^' ^ ''^■
passes committed on any pubUc building or enclosure within the limits ito-il 419.
of the city.
Sect. 16. Xo new division of wards in any citv comprisinir more rivisionof
, .... 1 1, 1 1 • 1 u. ii * wards in cities.
than one representative district, shall be made previously to the next l^3^,309, §2.
apportionment of senators and representatives.
Sect. 17. In laws relating to cities, the words mayor and aldermen " Mayor and ai-
shall in their application to the city of Boston, unless provision is other- Boston,' imw
wise made, be construed to mean board of aldennen. Ss"/ «"» "s 33
CHAPTEK 20.
OF THE CENSUS.
Section
1. Census of inhabitants and voters, to be
taken in 180.5 and every tenth year after.
2. by whom taken. Returns, &c.
Section
3. Secretary to furnish blanks, &c.
4. Penalties,
Section 1. There shall be taken in the several cities and towns, in census to be
the year one thousand eight hundred and sixty-five and every tenth an'ffpV^ry^tenth
year thereafter, a census of the inhabitants, ratable polls, and voters as year alter, &c.
they were on the first day of May of the same year ; distinguishing in
IG8
[Chap. 21.
Amend, const.
: rts. 12, 13, 21,
','<-,5, 4.-!9, § 2.
;,N)?, (iO, § 1.
^'^c-nsus, hy
■".liom taken.
] ; -turns, £ic.
. m7, M, § 2.
Secretary to
inraisU tlauks,
Ac.
IciSr, IJO, § 4.
Penalties.
ISSr, (10, §3.
the enumeration of the inhabitants, the males and females, the color of
each, the ages within decennial periods, the natives, the foreigners, nat-
uralized voters, and tlie country in whieli the foreigners were born ; and
in the enumeration of the voters of cities, the number in each ward.
Sect. 2. The census shall be taken in cities by agents ajipointed by
the mayor and aldermen, and in towns by the assessors. Such agents
and assessors sliall be sworn, shall make out in words at length a return
of the result of said census, and shall sign and make oath to the truth
thereof; and a certificate of the oath by the magistrate administering it
shall be annexed thereto. They shall, on or before the twentieth day of
June of the same year, deliver the return to the sherift" of the county,
who shall transmit it to the office of the secretary of the common-
wealth on or before the last day of said June ; or the agents or assess-
ors may themselves transmit the return to the office of the secretary
on or before the day last named.
Sect. 3. The secretary shall, on or before the first day of May of
each year in which the census is to be taken, transmit to the clerks of
the several cities and towns, printed forms for the returns required by
this chapter, and shall annex thereto a notice that the returns must be
made into his office on or before the last day of June.
Sect. 4. If an agent or assessor wilfully refuses or neglects to per-
form any duty required of him by this chapter, he shall forfeit a sum
not exceeding five hundred dollars, and if he is guilty of wilful deceit
or fiilsehood in the discharge of liis duty, he shall forfeit a sum not ex-
ceeding two thousand dollars or be imprisoned not exceeding one year.
A sheriff who wilfully refuses or neglects to perform the duty required of
him by this chapter, shall forfeit not exceeding one thousand dollars.
CHAPTER 21.
OF THE REGISTRY AND RETURNS OF BIRTHS, MARRIAGES, AND DEATHS.
Section
1. City and town clerks to record births, mar-
riages, and deaths.
2. Parents and others to give notice of births
and deaths.
3. Physician to certify, &c. Penalty.
4. Sextons and otlicrs to make returns to city
and town clerks. Clerks to give certifi-
cates. Penalties.
5. Clerk to transmit copies of records to sec-
retary.
6. record of, to be evidence.
Section
7. Clerk, fees of, &c. Penalty.
8. Superintendents of state almshouses to re-
cord, return, &c., facts in relation to births,
&c.
9. Secretary to furnish blank books and forms
for returns.
10. to cause returns to be bound, &c. ; to re-
port to legislature, &c.
11. Registrars may be cliosen in certain cases.
12. Secretary to prosecute for jienalty.
13. Towns may make additional rules, &c.
City and town
clerks to record
births, marri-
ages, and
deaths.
R. S. 15, § 40.
1844, 15fl, § 1.
1849, 202, § 1.
Section 1. The clerk of each city and town shall receive or obtain,
and record and index, the followini]^ facts concerning the births, mariiages,
and deaths, therein, separately numbering and recording the same in
the order in which he receives them, designating in scjiarate columns ;
In the record of births, the date of the birth, the phice of birth, the
name of the child, (if it have any,) the sex and color of the child, the
names and the ])laces of birth of the parents, the occu])ation of the father,
the residence of the parents, and the date of the record ;
In the record of marriages, the date of the marriage, the place of
marriage, the name, residence, and official station of the person by
whom married, the names and the places of birth of the ])arties, the
residence of each, the age and color of each, the condition of each,
(whether single or wid<nved,) the occupation, the names of the parents,
and the date of the record ;
Chap. 21.] registry, &c., of births, marriages, and deaths. 109
In the record of deaths, the date of the death, the name of the de-
ceased, the sex, the color, the condition, (whether single, widowed, or
married,) the age, the residence, the occupation, the place of death, the
place of birtli, the names and jdaces of birth of the parents, the disease
or cause of death, the place of burial, and the date of the record.
Sect. 2. Parents shall give notice to the clerk of their city or town r.im.ts and
of the births and deaths of their children ; every householder shall give O'l'^rs to ^v<?
,., . ,, 1 • 1 Till - *. 1 • 1 11^ iiotict* of births
like notice oi every birth and death lia])pening m his house; the eldest aud deaths,
person next of kin shall give such notice of the death of his kindred; isifjias.^'''^'
the keeper of a workhouse, house of correction, prison, hospital, or alms- 1855,360.
house, except the state almshouses at Tewksbury, Bridgewater, and Mon-
son, and the master or other commanding officer of any ship shall give like
notice of every birth and death happening among the persons under his
charge. Whoever neglects to give such notice for the space of six months
after a birth or death, shall forfeit a sum not exceeding five dollars.
Sect. 3. Any physician having attended a person during his last rhysician to
illness, shall, when re<|uested within filteen days after the decease of J^y'j')'' *'•
such ]>erson, forthwith furnish for registration a certificate of the dura-
tion of the last sickness, the disease of wliich the person died, and the
date of his decease, as nearly as he can state the same. If any physi-
cian refuses or neglects to make such certificate, he shall forfeit and pay
the sum of ten dollars to the use of the town in which he resides.
Sect. 4. Every sexton, undertaker, or other ]ierson having charge of Scxtonsand
a burial-ground, or the superintendent of burials having charge of the "'{'urns'to^dt'jf
obsequies or funeral rites preliminary to the interment of a human body, and toiyn clerks,
shall forthwith obtain and return to the clerk of the city or town in i»S!i.5!sH.
which the deceased resided or the death occurred, the facts iXMjuired by i&i'J. 202, § 3.
this chapter to be recorded by saiil officer concernhig the deceased, and
the jierson making such return shall receive from his city or town the
fee of ten cents therefor.
The clerk, upon recording such facts, shall forthwith give to the per- cierktogive
son making such return, a certificate that such return has been made, certiflcate.
which certificate such person shall deliver to the person having charge
of the interment, if other than himself, before the burial when practi-
cable, otherwise within seven days thereafter. When a burial takes
place and no certificate is delivered as aforesaid, the sexton, undertaker,
or other jjerson having charge of the interment, shall forthwith give
notice thereof to the clerk under penidt^' of twenty dollars.
Sect. 5. The clerk of each city and town shall annually on or before to transmit
the first day of February, transmit to the secretary of the commonwealth, J,",?y"'of'statL"^
certified copies of the records of the births, marriages, and deaths, whieli is44, 159, §i.
have occurred therein during the year ending on the last day of the pre- 'f^W'^oa, §5.
ceding December.
Sect. 6. The record of the town clerk relative to any birth, mar- record of, to
riage, or death, shall be 7»-»n«/«c/e evidence, in legal proceedings, of ''" ''^■"'™'^'^-
the facts recorded. The certificate signed by the town clerk for the
time being shall be admissible as evidence of any such record.
Sect. 7. The clerk shall receive from his city or town for obtaining, fees of, &c.
recording, indexing, and returning to the secretary of the common- J^""lg^/, §5 2, 3.
wealth, the facts in relation to a birth, twenty cents ; a marriage, ten
cents; a death, twenty cents for each of the first twenty entries, and
ten cents for each subsequent entry, as the same shall be certified by
the secretary of the commonwealth ; but a city or town containing
more than ten thousand inhabitants may limit the aggregate compensa-
tion allowed to their clerk. He shall forfeit a sum not less than twenty
nor more than one hundred dollars for each refusal or neglect to per-
form any duty required of him by this chajiter.
Sect. 8. The suiierintendents'of the state almshouses at Tewksburv, Superintend-
Bndgewater, and Monson, shall obtain, record, and make return of, the almshouses to
15 22
170
WORKHOUSES AND ALMSHOUSES.
[Chap.
^•^i
record, return,
»fec., facts, in re-
lation to births,
&c.
185*5, 3G6.
Secretary to
furnish blank
books and
forms for re-
turns.
IfrH, 150, §§ n, ;
1849, 202, § 5.
to cause re-
turns to be
bound, &c.
to report to
ley^isliiture, &c.
ISH, 15t), § 7.
1S4'J, 2U2, § 5.
Kegistrars may
be chosen iu
certiun cases.
1^9,202, § 1.
Secretary to
prosecute lor
penalty.
Towns may
make additional
rules, &c.
fixcts in relation to tlie births and deaths which occur in their respective
institutions, in like manner as is required of town clerks. The clerks of
said towns shall, in relation to the births and deaths of persons in said
almshouses, be exemjjt from the duties otherwise required of them by
this eha})ter.
Sect. 9. Tlie secretary sliall at the expense of the commonwealth
prepare and furnish to the clerks of tlie several cities and towns, and to
the supenntendents of the state almshouses, blank books of suitable
quality and size to be used as books of record under this chapter, blank
books for indexes thereto, and blank forms for returns, on ])a])er of uni-
form size ; and shall accompany the same with such instructions and
explanations as may be necessary and useful. City and town clerks
shall make such distribution of blank forms of returns furnished by the
secretary as he shall direct.
Sect, 10. The secretary shall cause the returns received by him for
each year to be bound together in one or more volumes with indexes
thereto. He shall prepare from the returns sucli tabular results as will
render them of practical utility, make report thereof anmnJly to the
legislature, and do all other acts necessary to carry into eliect the pro-
visions of this chapter.
Sect. 11. Any city or town containing more than ten thousand in-
habitants, may choose a person other than the clerk to be registrar, who
shall be sworn, and to whom all the provisions of this cha])ter concern-
ing clerks shall apply. The returns and notices required to l>e made
and given to clerks shall be made and given to such registrar under like
penalties.
Sect. 12. The secretary of this commonwealth shall prosecute, by
an action of tort, in the name of the commonwealth, for the recoveiy
of any penalty or forfeiture imposed by this [chapter] [ar?].
Sect. 13. . Any city or town may make rules and regulations to
enforce the ]irovisions of this chapter, or to secure a more perfect regis-
tration of births, marriages, and deaths, therein.
CHAPTER 22,
OF WORKHOUSES AND ALMSHOUSES.
Section
1. Cities and towns may provide workhouses
or almshouses. Persons who may be com-
mitted thereto.
2. not to erect almshouse, &c., in any other
place without consent, &c.
3. Directors of workhouse, master, &c.
4. Meeting's of directors.
3. Cities and towns may provide a work-
house, &c., iu common.
6. Joint board of directors.
7. Each place to choose three directors, &c.
8. Quarterly and other meeting's of the di-
rectors.
9. Board may choose moderator and clerk.
10. may make by-laws, &c. 3Iay allow com-
pensation to master and assistants.
11. may act upon other matters.
12. Compensation of master, &c., to be paid by
places interested.
Sectiox
!3. Remedy ag^ainst places neglecting to pay.
14. Cities and towns not to send more than
their proportion, in case, &c.
15. Any place refusing to contribute to ex-
penses shall not use the Iiouse.
10. Each place may furnish materials, &c., for
persons committed by its authority.
17. Masters to keep register of persons com-
mitted, &c.
18. Controversies between master and over-
seers, how determined.
lt>. Profits and earnings, how appropriated.
20. How persons may be dischargeii.
21. Persons committed to be kept employed.
Discipline.
22. Provisions respecting foreigners commit-
ted.
23. Workhouses may be discontinued.
24. Construction of this chapter.
S^smaypro- SECTION 1. A city or town may erect or provide a workhonse or
Tide work- almshouse for the employment and support of poor and indigent per-
Chap. 22.] workhouses and almshouses. 171
sous who are maintained by or receive alms from the city or town ; houses or aims-
jiersons who, being able of body to work and not liaving estate or p"r|ons who
means otherwise to maintain themselves, refuse or neglect to work; may be commit-
]iersons who live a dissolute, vagrant life, and exercise no ordinarj' call- K^'s.'T^Ti.
ing or la^rt'ul business ; jiersons who spend their time and property in J'?- *!']< § *■
jiublic houses to the neglect of their proper business, or wdio, by other- ''
wi.se misspending what they earn to the impoverishment of themselves
and their fimilies, arc likely to become chargeable to the city or town ;
and other persons sent thereto under any provisions of law.
Sect. 2. Xo city or town shall erect or maintain an almshouse or Toivns, *c,not
liouse of correction within the limits of any other place, without the J" "cct •aims-
„ , , , J I J house, &c., in
consent oi such other place. other place, &c.
Sect. 3. Every city or town having a workhouse or almshouse may j^''' '-"■"•
annually choose three, five, seven, or more directors, who shall have the workhouse,
insjieetion and government thereof, and who may appoint a master and k"'s"^io*§§''' 3
necessary assistants, for the more immediate care and superintendence of
the persons received or employed therein. Wliere such directors are
not specially chosen, the overseers of the poor shall be the directors.
Sect. 4. Once in every month, and at other times as occasion may jieetings of di-
require, the directors shall hold meetings for the jiurpose of determin- g'^s'^^o « 4
ing the most eligible mode of discharging their duties. At such
monthly meetings they may make needful orders and regulations for the
house, which shall be binding until the next meeting of the town or of
the cit\^ council, when the same shall be submitted to such meeting,
and if approved shall remain in force until revoked by the town or the
city council.
Sect. 5. Any number of cities or towns may at their joint charge Towns may
and for their common use erect or provide a workhouse or almshouse, ■iv'o"k'ho'u6e"''*
and purchase land for the use thereof R- .5. ifi, § s.
Sect. 6. The ordering, governing, and repairing, of such house, the .loim board'of
appointment of a master and necessary assistants, and the power of i'"'^"'?!*'! «
removing them for misconduct, incapaeitj^ or other sufficient cause,
shall be vested in a joint board of directors, who shall be chosen an-
nually by the several ]ilaces interested.
Sect. 7. Unless all the jdaces interested in such house shall agree to Eaehpi^twto
choose a diflerent number, each of them shall choose three members of *^i°rs 'Ifccf" *"
the board; and in ease of the death of a director, or of his removal is. s. ic, §§ 7,8.
from the jdace for which he was chosen, the vacancy may be supplied
by such place. If a ]jlacc neglects to choose directors, those chosen by
the other places shall have the whole charge of the house.
Sect. 8. Stated quarterly meetings of the board shall be holden on Quarterly and
the first Tuesdays of January, Aj-riT, July, and October, at the work- ^*f",'i[rrcu"sT
house or almshouse under their charge, for the purpose of inspecting k. s. i6, § 9.
the management and directing the business thereof Meetings of the
board may be called at other times by the directors chosen by any place
interested, they giving notice of the time and ]>urpose thereof to the
other members of the board in such manner as shall have been agreed
upon at a stated meeting.
Sect. 9. The board of directors may choose a moderator; and at Board may
their first general meeting they shall appoint a clerk, who shall be sworn tOTand "cUrk™
and shall record all votes and orders of the board. k. s. i6, § lu.
Sect. 10. At a general quarterly' meeting, if one-half of the mem- may make by-
))ers are pi-esent, they may make reasonable orders and by-laws not '"m^iV^uow
repugnant to the laws of the commonwealth for ordering and regulating compensation
the house under their charge, and may agree with the master and 1". ^"10^ §'§'11;
assistants, and order a suitable compensation for their services. i'--
Sect. 11. Other matters maybe acted upon at any other meeting may act upon
duly notified, if one-third of the members are present: but the doinijs ?,*'c''^,'?"rf.r^'
,i ' 1 . 11 1 • T 1 , . ^ K. S. lu, J 1.:.
01 such meetings may be altered or revised at any general stated meeting.
172
WORKHODSES AND ALMS'HOUSES.
[Chap.
22
Compensation
of master, itc,
to be pai.i by
places iutercst-
ctl.
It. S. 11), § i:J.
Remedy against
places uoglect-
ing to pay.
K. S. l.i, § li.
1852, 312.
To^vns not to
send moi-e thau
their propor-
tiou, &c.
K. S. 10, § 15.
Any place re-
fusing to con-
tribute to ex-
penses, shall
not use house.
K. S. 16, § 10.
Each place may
furnish maturi-
als, Ac, lor p^T-
Bous committed
by its author-
ity.
K. S. 10, § 17.
Masters to
keep register of
persons com-
mitted, &c.
It. S. 10, § 18.
Controversies
between master
and overseers,
how deter-
mined.
K. S. 10, § 1'.).
Profits and
earnings, how
appropriated.
K. S. 10, § Zi.
How persons
may be dis-
ciiarged.
K. S. 10, § 20.
185U, 190.
Persons com-
mitted to be
kept employed.
Discipline.
It. S. 10, § 21.
Provisions re-
specting lor-
cigners'commit-
ted.
E. S. 10, § 22.
1852, 275.
Sect. 12. The yearly compensation of the master and assistants, (in
addition to the allowance hereafter provided in this ehajjter for their
services,) and also the expense of keeiiing the house in repair, shall be
jiaid by the several ])laces interested, in ]iro])ortion to their state ta.x at
the time when the expense may have been incurred, or in such jiropor-
tion as the ])laees interested shall agree.
Sect. 13. If a place refuses or neglects to advance or reimburse its
proportion of the sums of money mentioned in the ]>receding section,
or of any other charges mentioned in this chapter, after the same liave
been adjusted by the joint board of directors, the same may be re-
covered of such delinquent place in an action of contract brought by
any person whom tlie board shall in writing a]i)ioint for that purpose.
Sect. 14. No greater number of persons belonging to a city or town
shall be received into such workliouse or almshouse, than such city's or
town's proportion of such house, when the recei\'ing of them would
exclude or be inconvenient to such as belong to the other places inter-
ested.
Sect. 15. If any place refuses or neglects to provide its proportion
of the necessary expenses of such house, or of the materials, imjilements,
or other means, for jierforming tiie work there required, according to its
agreement or the directions of the joint board of directors, such place
shall be deprived of the ]irivilege of sending any person thither during
the time of such neglect or refusal.
Sect. 16. Each place may fn-nish such additional materials, impkiuents,
and means of work, as the overseers of the poor thereof may choose, for
the eni})loyment of any person committed to such house ; and the master
of the house shall receive the same, and keep them separate from those
of the other places, and shall be accountable to each place interested, as
well for the cost as for all profits and earnings made by the labor of the
persons committed to said house from such place.
Sect. 17. The master of each workhouse and almshouse shall keep a
register of the names of the persons committed or received, the places
to which they belong, the dates of their reception and discharge, and of
their res]iective earnings, to be submitted to the overseers of tlie poor
upon their request.
Sect. 18. Controversies between the masters and the overseers of
the poor of any place respecting the accounts or other official doings of
the masters, shall be determined by the directors of the house at their
general or quarterly meeting.
Sect. 19. The ])rofits and earnings arising from the work of persons
committed to the workhouse or almshouse, with the stock remaining on
hand, shall be disposed of as the overseers of the poor of the several
places shall think pro]ier, either to the use of their cities or towns, the
persons committed, or their families.
Sect. 20. No person committed to the workhouse shall be discharged
within the time for which he was committed, exce])t by the jiolicc court
or justice who made tlie commitment, the directors of the house at their
general or quarterly meeting, or by the su])erior court, at any term held
in the county where such house is situated, for good cause shown upon
ap])lication for that ])urpose.
Sect. 21. Every ))erson committed to a workhouse .shall if :;ble to
work be ke)it diligently employeil in labor during tlie term of his com-
mitment. If he is idle and iloes not perform such reasonable task as
is assigned, or is stubborn aiul disorderly, he shall lie jiunished according
to the orders and regulations estalilished by the directors.
Sect. 22. When a person not having a legal settlement in tliis state
shall become idle or indigent, he may be committed to the workliouse
to be there employed, if able to labor, in the same manner and under
the same rules as other persons there committed.
Chap. 23.]
W.iTC'H AND WARD.
173
Sect. 23. A Tvorkhouse or almsliouse may be discontinued or appro- Workhouses
priated to any other use, when the place or places interested so deter- SVd? ''''"^"°'
mine. H- s. in, § 24.
Sect. 24. Xothing contained in this chapter shall affect any powers ronstruction of
or privileges heretofore granted to cities or towns, or the overseers of H"|'^'i5'l*Ji
the poor thereof, by acts specially relating to workhouses or almshouses
therein.
CHAPTER 23,
OF WATCH AND WARD.
Section
1. Watdl, cities, Ac, may establish.
2. duties ami powers of.
3. badges and weapons of.
4. Selectmen, &c, may order watch, &c., where
none is established.
5. Persons liable to watch, &c.
6. Persons exempt.
7. Penalty on persons liable, &c., refusing, Ac.
8. Watch districts may be established in vil-
lages.
9. Selcctraea, &c., to notify meeting, upon ap-
plication in writing, &c.
10. Proceedings when village is situated in two
or more towns.
Section-
11. Clerk.
12. Prudential committee.
13. Annual meetings for choice of otEcers.
14. ileetings, how called, ic.
15. Districts may raise money, which shall be
under cliarge of prudi'ntial committee, &c.
16. Clerk shall certify to assessors amount to
be raised.
17. Duty of assessors, when district is situated
in two or more towns.
18. Territory adjoining a district, how an-
nexed.
19. Watch districts heretofore organized.
Sectiox 1. A city or town may establish and keep a watch and de- Watch, cities,
termine the number and qualifications of the persons to be employed f^^i; '""^ "'""'*■
for that puqiose. The mayor and aldermen or selectmen shall a])point a k. s. 17, 5§r,8.
suitable person to be officer of the watch, and direct the manner in
which watchmen sh:dl l)e equijiped. The expense of the watch shall
be defrayed in like manner as other town charges.
Sect. 2. The watch shall see that all disturbances and disorders are duties and
prevented and suppressed. During the night time they may examine J"*™""!'!
all ]iersons abroad whom they have reason to suspect of any unlawful i»3o, isd.
design, demand of them their business abroad and whither they are
going ; may disperse any assemlily of three or more such persons, and
enter any building for the pui-pose of suppressing a riot or breach of the
peace therein. Persons so suspected and not giving a satisfactory ac-
count of themselves, persons so assembled and not disjiersing when
ordered, and persons making, aiding. Or abetting in a riot or disturb-
ance, may be aiTested by the watch, and shall thereupon be safely !:ept,
by imprisonment or otherwise, until the next morning, and then taken
before a police court or some trial justice, to be examined and proceeded
against.
Sect. 3. Officers and members of the watch, when on duty, may badges and
cany a club of not more than eighteen inches in length ; shall wear such R'^g^'iTssb g
badge of office as the mayor or selectmen direct, and shall walk the 1855, 11s.
rounds in and about the streets, lanes, whan^es, and principal inhabited
parts of the city or town, to prevent danger by fire, and to see that
good order is kept.
Sect. 4. The mayor and aldermen or selectmen of any place wherein Selectmen, ic,
no watch as above provided is established, may, from time to time, S^c^'^l^'c
order a suitable watch to be kept in their place, and warn all jiersons where none is
liable to watch and ward duty to perform the same. They may direct r*s. i7,'§5 3, 9
the number of the watch, the places and hours for keeping the same,
may order in writing any constable or officer of the watch to warn such
15*
174 WATCH AND WARD. [ChAP. 23.
watch, either by himself or by some jjcrson therefor by him n]i]iointedi
and to see that all persons so warned attend and perform their duty.
Persons liable Sect. 5. Every male person of the age of eighteen years or u]i\vards,
K-s"]?''!*" I'sing "'^l"-' of bod}', or having sntlicient estate to hire a substitute, and
not exem])t, shall be liable to watch and ward in his city or town, and
shall perform the duties, be subject to the liabilities, and have the pow-
ers of watchmen as the same are defined in this chaptei-.
Persons ex- Sect. 6. Justices of the peace, mayors, aldermen, selectmen, sheriffs,
?J"E*j_ ^ r, settled ministers of the gospel, and persons living more than two miles
from the place where such watch and ward is kept, shall be exem]it.
Penalty on per- Sect. 7. Persons liable to watch and ward, and without reasonable
rcmsin''^'&ct'^'' excusc neglecting or refusing to appear and do duty personally or by
K. s. \f, §§ 9, 10. sufficient substitute, and constables or officers or members of the watch
1852] 312! refusing to execute and observe proper orders, shall forfeit ten dollars,
to be recovered by complaint to the use of the commonwealth, or by
action of tort to the use of the city or town.
WATCn IN VILLAGES AND DISTEICTS.
Watch districts Sect. 8. Watch districts may be established and organized in vil-
lisiiwUn vii-'^ lages containing not less than one thousand persons, for the ]irotection
i.-i?es. of property against fire, thieves, and robbers, and for keeping the streets
1S35, 274, §§ 1,5. q^^j^j. .j^ ^i^-p j^'j^.j^^ jjjj^p
Selectmen, &c., Sect. 9. The Selectmen of a town, upon the ajiplicatiou in writing
im""ui)oii'"m)U- "^ ^^t less than seven freeholders, inhabitants of such village the limits
cation in writ^ of wliicli shall be defined in the ajiplication, requiring them to notify a
isis.^H, § 2. meeting of the persons in such district qualified to vote in town affiiirs,
for considering the expediency of establishing such watch district, shall
forthwith give notice to such voters, in the manner in which notice of
town meetings is given, to assemble at some suitable place within the
district for said purpose, the substance of which shall be expressed in
the notification. If the selectmen refuse or neglect to give notice of
such meeting, any justice of the peace in the county may so notify the
same.
Proceeriinfjs Sect. 10. When such village belongs to two or more towns, the
when viiiii^e i» yotcrs thereof may organize such district .at a meetin"- called and noti-
situated in two .,,.•' -^ - . . , . . ^ „ ,
or more towns, fied as provided in the jireceding section by any justice 01 the peace tor
1855, 274, § .). the county in which either town is situated, to whom appjlic-ition has
been made by at least five voters of each town who are inhabitants of
such district.
Clerk. Sect. 11. If at any such meeting the voters present determine to
1854,274, §§4,5. gg(-j(y;j,jj ^xxch district, a clerk shall be chosen, who shall be sworn to
keep a true record of the proceedings of all meetings and to perforin all
duties of clerk of the district so long as he holds the office. He may
be removed by the district, or may resign, and in case of a vacancy
another may be cho.sen.
Prudential com- Sect. 12. A prudential committee of not less than three nor more
"sM^OT, §§ s, 0 ^^^^ five persons shall be chosen by ballot, and shall be sworn.
Annual meit- Sect. 13. The prudential committee shall annually issue their w.ar-
ol^fficers''"''^" '"'^"ts to the clcfk, requiring him to call a meeting in the month of
1855, 274, §9. ]\Iarch for the ]nirpose of choosing officers. Such officers shall perform
the duties of tlieir offices until others are chosen.
Meetings, how Sect. 14. jMeetiiigs of the district shall be called by the clerk when
isM,'274,''§s 2 requested in writing by the )n-udential committee or seven voters of the
3,7. district. He shall give notice thereof by posting written notifications
in at least six jiublio places in the district, not less than seven days
prior to the meeting, which notifications shall contain a brief statement
of the purposes of the meeting. At each of the meetings a moderator
shall be chosen, who shall have the powers of the moderator of a town
Chap. 24.]
FIRES AND FIRE DEPARTMENTS.
175
meeting. After the choice of a clerk he shall preside at subsequent
meetings with like powers ujitil a moderator is chosen.
Sect. 15. The district may, at meetings called for the pur]iose, vote Districts may
to raise money for the payment of watchmen and other necessary ex- JirtfeilTimirbe
penses. The prudential committee shall have the superintendence and "nt'tf charge
control of the watchmen, have charge of and be responsible for the committccj&c.
property enij)loyed, have the custody and management of the monej' isoo, 274, §§ j, s.
raised, expend the same for the purposes s])ecified in the votes of the
district, be accountable to the district for the money received by them,
and be liable to a suit for such money or other property of the district,
in the name of the inhabitants thereof
Sect. 16. The clerk shall certify to the assessors of the to\^-n all cicrk shall ccr-
sums of money voted to be raised, which shall be assessed and col- "nio'unt^'o'be"''
lected, liy the officers of the town in the same manner that the town raised._
taxes are assessed and collected, and be ])aid over to the treasurer, who li^iiet.^^-j.'"'
shall hold the same subject to the order of the jirudential committee.
The assessors, treasurer, and collector, of any town in which such <Iistrict
is organized shall have the powers and perform the duties, in reference
to the assessment and collection of said taxes, which they have and per-
form in the assessment, collection, and abatement, of town taxes : but
the sum so voted shall be assessed upon the property real and ]ier-
sonal located within such district.
Sect. 17. When a district is composed of parts of two or more Duty ofasscss-
towns, the assessors of such towns shall transmit to the clerk of the tric'tTs'Bitmi't'ed
district the amount of taxable propertj' in such part of their respective in two or more
towns as is within the limits of the district ; the ]>rudential committee iK55"2"r4, § 11.
shall thereupon apportion the money voted to be raised by the district
among the respective towns according to the returns thus transmitted,
and tlie same shall be collected and held in the manner provided in the
preceding section.
Sect. 18. When the freeholders of a territory adjoining a watch Territory
district present to the clerk thereof a petition describing their territory JricMiow m-^"
and requesting to be annexed to such district, the clerk shall give notice "''?i<^'J-.
of the [letition at the next annual meeting of the district, when by a ^'~- <i -
vote of the meeting the inhabitants of such tenitory may be annexed
to the district.
Sect. 19. Watch districts heretofore legally organized shall continue. Watch districts
and be subject to the provisions of this chapter in relation to watch Ij^ecu'^'^ '"^'
districts.
CHAPTER 24.
OF FIRES AND FIRE DEPARTMENTS.
EXTINGinSHMENT OF FIRES.
Section
1. Fircwards to be chosen, &c.
2. Penalty for not accepting' or refusing.
3. I-^rowards shall attend at fires.
4. selectmen, &c., may order buildings to be
pulled down, &c.
5. 0\mers of buildings, &o., pulled down, to
bo indemnilied, except, &c.
G. Firewards may command assistance.
7. may give orders to enginemen and oth-
ers, Ac.
8. Embezzling, Ac, of property at a fire to be
deemed larceny.
EXGIXEMES.
9. Selectmen, &c., to appoint enginemen.
Section'
10. Xumber of enginemen to each engine.
11. Axe-mcn, &c., to be appointed.
rz. Annual meeting of enginemen In May.
Kulca may bo made and penalties an-
nexed.
13. greetings of engine companies.
14. Selectnioii, <fcc., to appoint enginemen to
private engines.
15. If selectmen, &c., refuse, commissioners
may appoint.
16. EntrnK'nnn to live near engines.
17. if ni-^diL^int,niay be discharged.
18. conipiusatiiin of.
19. Chief engineer, &c., to certify to assessors.
Assessors shall examine and certify lists.
Treasurere shall pay. Remedy.
176
FIRES AND FIRE DEPARTMENTS.
[Chap. 2-1.
Section
20. Penalty for refusing certifieatp, &c., or
making' false one.
21. Three precetlm*j sectious not to apply un-
less adopted.
22. Penalty for iiyuring fire engines.
FIRE HEPARTMENTS.
2.1. Fire departments may be organized, &c.
24. Engineers, selectmen to appoint, &c.
25. organization of.
20. to have powers of firewards ; to appoint
enginemcu, &c.
27. Organization of enginemen, &c., their by-
laws, &c.
28. Privileges and duties of engineers, &c.
20. Engineers to have care of engines, and
other fire apparatus.
.30. may make rules, as to carrying fire, light-
ed matches, &e., in streets, &c.
31. Other general powers, as to preventing,
&c., fires.
32. Future acts establishing fire departments,
&c.
FIRE DISTRICTS.
33. Fire departments in villages and districts.
34. proceedings before establishment of.
35. Selectmen, or justice of the peace, may call
meeting of district, upon request of seven
freeholders.
'Section
30. Who to vote at such meetings ; clerk to be
chosen ; his duties.
37. At such meeting, tire department may be
established.
.38. Engineer, &c., how chosen.
39. Meetings of fire district, how called and
conducted.
40. Board of engineers to make rules and regu-
tious, appoint enginemen, &c.
41. Power of engineers, and liability of district
for their acts.
42. Privileges, &c. ; compensation.
43. Jlouey may be raised, to be under charge
of prudential committee, to be chosen, &c.
44. Assessment and collection of money voted
to be raised by fire district.
45. Uy-laws, imposing penalties, to be approved
by superior court.
40. Penalties, how recovered, &c.
47. District may exclude, tfec, particular per-
sons or estates.
48. Districts heretofore organized.
special provisions.
49. Fire clubs not to be established, unless,
&c.
50. Penalty for joining without permission.
! 51. Two preceding sections to be in force only,
I &c.
EXTINGUISHMENT OF FIRES.
Firewards, to
be chosen, &c.
K. S. ly, § I.
Penalty for not
accepting or
refusing.
R. S. 18, § 2.
Firewards shall
attend at fires.
K. S. IS, §3.
5 Cush, 209.
selectmen,
&c., may order
buildino^s to he
pulled down,
&c.
E. S. IS, § 4.
Owners to be
indemnified, ex-
cept, &c.
K. S. IS, § 7.
8 Met. 402.
5 Cush. 2(59.
a Cush. 433.
Firewards may
command as-
sistance.
K.S. IS, §5.
may give or-
ders to engine-
men and others,
^c.
K. S. IS, § G.
Section 1. The inhabitants of each town at their annual meeting,
and the city council of each city, may elect sucli number of suitable
persons to be firewards therein as tliey deem necessary.
Sect. 2. Each person elected sliall forthwith have notice thereof,
and within three days after such notice shall enter his acceptance or
refusal of the office with the town clerk ; whoever after such notice
neglects so to enter his acceptance or refusal shall, unless excused by
the city or town, forfeit ten dollars, and another may be elected in his
place.
Sect. 3. When a fire breaks out in any place, the firewards sliall
immediately rej^air thereto, and shall carry a suitable staff or badge of
their office.
Sect. 4. The firewards or any three of them present at a ]^lnee in
immediate danger from a fire and where no firewards are appointed, the
selectmen or mayor and aldermen present, or in their absence two or
more of the civil officers present, or in their absence two or more of
the chief military officers of the place present, may direct any house or
building to be pulled down or demolished when tlicy judge the same to
be necessary in order to prevent the spreading of the fire.
Sect. 5, If such pulling down or demolishing of a house or building
is the means of stopping the fire, or if the fire stojis before it comes to
the same, the owner shall be entitled to recover a reasonable compensa-
tion from the city or town ; but when such building is that in which
the fire first broke out, the owner shall receive no compensation.
Sect. 6. Such firewards or other officers may during the continuance
of a fire require assistance for extinguishing the same and removing fur-
niture, goods, or merchandise, from a building on fire or in danger
thereof; and may appoint guards to secure the same. They may also
require assistance for pulling down or demolishing any house or building
when they judge it necessary; and may suppress all tumults and disor-
ders at such fire.
Sect. 7. They may direct the stations and operations of the engine-
men with their engines, and of all other persons for the purpose of
CUAI>. 24.] FraES AXD FIUE DEPARTJIENTS. 177
extinguisliing tlie fire ; and whoever refuses or neglects to obey such
orders shall forfeit for each offence a sum not exceeding ten dollars.
Sect. 8. Whoever purloins, embezzles, conveys away, or conceals, Embczziinsj,
any furniture, goods or chattels, merchandise or effects, of persons whose *' ■.■it'afir°''to
houses or buildings are on fire or endangered thereby, and does not iw deemed lar-
witliin two days restore or give notice thereof to the owner if known, i{."s.i8, §8
or if unknown, to one of the firewaixls, mayor and aldennen, or select-
men, of the place, shall be deemed guilty of larceny.
ENGIXEMEX.
Sect. 9. The mayor and aldermen or selectmen of places provided Selectmen, &c.,
with tire engines may appoint suitable persons for enginemon ; who !,°nej^en°' *'°
shall continue in office during the pleasure of the authority appointing it- s. 18, § 9.
them.
Sect. 10. Such engines shall be manned as follows: each common Number of en-
engine, or suction engine when used as a common engine only, with not jg"™^™ '° ™''''
exceeding thirty men ; each suction engine, when used as such, with not K-Ij. is, 5 lo.
exceeding forty-five men : but this pro\'ision shall not affect the present
right of any place to have a greater number of enginemen appointed
than is herein ]irescribed.
Sect. 11. The mayor and aldermen or selectmen maj' select from the Axemen, &c.,
enginemen any number for each engine, who shall under the direction k s^ w'Tn"^
of the firewards attend fires with axes, fire-liooks, fire-sails, and ladders,
and do such further duty as the mayor and aldermen or selectmen shall
from time to time prescribe ; and they shall be entitled to all exemp-
tions and priWleges of other enginemen.
Sect. 1'2. Each company of enginemen so appointed shall meet Annual meet-
annually in May and choose a foreman, or director, and a clerk, and lufu'h™fay?
establish such rules and regulations not renuirnant to the laws of the ""ics may be
1^1 .• .1 . T . ■ 1 11 1 1 made and penal-
commonwealth respecting their duty as engiiienien, as shall be apjiroved ties annexed.
by the mayor and aldennen or selectmen ; and they shall annex penal- "• ''^ '*' § ^•
ties thereto not exceeding ten dollars, which may be recovered by the
the clerk in an action of tort.
Sect. 13. Such companies shall meet together once a month, and Meetings of en-
oftener if necessary, for the purpose of examining the engine and its k.°s.'^im™"^^
a]ipendages and seeing that they are in good repair and ready for use.
They shall l)y night and day, under the direction of the firewards, use
their best emleavors to extiugnisli any fire that may happen in their city
or town or the vicinity thereof.
Sect. 14. When the proprietors of an engine apply to the mayor and Selectmen, &c.,
aldermen or selectmen of a city or town in which the engine is owned, g'Jn''(!^en'tVpri-
setting forth that they desire that the same should be employed for the vate engines,
benefit of such place, the mayor and aldermen or selectmen may ap- ■ • "• 5
point enginemen in the same manner, with the same privileges, and
subject to the same regulations, as if the engine belonged to the jilace;
and if the proprietors do not agree as to wliere the engine shall be kept,
the mayor and aldermen or selectmen shall determine the same.
Sect. lb. If the mayor and aldennen or selectmen upon such appli- if selectmen,
cation refuse or delay for the space of fourteen days so to a]i]wint en- * mnUs"ionera
ginemen, the projn-ietors may apply therefor in writing to the county may; appoint,
commissioners, giving notice in writing to such mayor and aldermen or ^" **■ "*' ^ '*'
selectmen seven days at least before the sitting of the commissioners,
that they may appear and show cause, if any they have, why such en-
ginemen should not be appointed; and if sufficient cause is not shown
by them the commissioners may appoint the number of enginemen pre-
scnbe.1 in section ten. . , , , Enginemen to
Sect. lo. r-ngmemen appointed under the two preceding sections iiye near en-
shall, if such can be obtained, be persons living at or near the place S°s''i8 5 le
23 r . . ,8 .
178
FIRES AND FIRE DEPARTMENTS.
[Chap. 24.
Eugrincmen, if
negliy:(^it, may
be diseharo^ed.
K. S. IS, S IS.
compensation
of.
R. S. 18, 5 19.
1838, 71, 5 2.
See § 21.
Chief eno^neer,
&c., to certiiy
to assessors.
Assessors shall
examine and
eertily lists.
Treasurers
shall pay.
Remedy.
R. .S. IS, § 20.
I.'i52, 312.
bee § 21.
Penalty for re-
fusing: certifi-
cate, &c., or
making false
one.
IJ. S. 18, § 21.
18.39, 135.
1852, 312.
See § 21.
Three preced-
ing sections not
to apply unless
adopted.
It. S. 18, § 22.
Penalty for in-
juring fire en-
gines.
K. S. 18, § 23.
where the engine is kept, and they shall enjoy all the privileges and
exemptions of other enginemen.
Sect. 17. If an engineiuan is negligent in his duties the mayor and
aldermen or selectmen shall discharge him and appoint another in his
stead.
Sect. 18. Persons appointed enginemen or members of the fire
department in any place, and who have done duty as such for one year
preceding the first day of May in any year, shall be entitled to receive
from the treasurers of their respective towns a sum equal to the poll ta.x
for state, county, and town taxes, (exclusive of highway taxes,) paid by
them, or by their jiarents, mastere, or guardians, and such further com-
pensation as tlie town determines.
Sect. 19. The chief engineer or the oflicer who holds the first office
in any fire department, and the foreman or director of each company in
any place wliere no tire department is established by law, shall annu-
ally on or before the first day of May make out and certity to the assess-
ors of their respective places a list of all persons in their department
or comj)anies who througli the year pi'eceding have performed all the
duties therein required by law. The assessors shall within ten days
thereafter examine such lists and certify to the treasurers of their
respective places the amount to be paid to each person named therein.
Such treasurers shall after deducting all taxes due from the persons so
named pay the same to them, or if minors to theii- parents, masters, or
guardians; and ujion refusal of the treasurer to pay any sums so certi-
fied and returned, the persons entitled may severally recover the same
from such places in an action of contract.
Sect. 20. If such chief engineer or other officer wilfully refuses to
make such certificate, he shall forfeit for each person whose name ought
to have been so certified, a sum not exceeding five dollars, to be recov-
ered in an action of tort to his use, or on complaint to the use of the
commonwealth ; and if such engineer or other officer makes a false cer-
tificate in such case, he shall forfeit a sum not exceeding fifty nor less
than twenty dollars, to be recovered in an action of tort to the use of
the city or town, or on complaint to the use of the commonwealth.
Sect. '21. The provisions of the tliree preceding sections shall be in
force only in those cities and towns whicli have adopted or may adopt
the same at the annual meeting of the town or by the city council of
the city. When such adoption shall be revoked by the town at an
annual meeting, or by the city council of a city, said provisions shall
cease to be in force therein.
Sect. 22. Whoever wantonly or maliciously injures a fire engine or
the apparatus belonging thereto, shall be jiunished by fine not exceeding
five hundred dollars, or by imprisonment not exceeding two years, and
be further ordered to recognize with sufficient surety or sureties for his
good behavior during such term as the coiu't shall order.
Fire depart-
ments may be
organized, &c.
18:W, 138, § 1.
1S55, 128.
Engineers, se-
lectmen to ap-
point, &c.
18.3U, 138, § 2.
FIRE DEPARTMENTS.
Sect. 23. The selectmen of .any town may est.ablish a fire department
therein in the manner hereinatter provided, and such department and
every other fire department, unless ditrerent provisions are specially made
therefor, shall be organized in the manner, and the members thereof may
exercise the powers and shall be subject to the liabilities, hereinafter
mentioned.
Sect. 24. The selectmen of such town shall .annu.ally in April ap]ioint
for such dcjiartment as many engineers not excee<liiig twelve as they
may tliink expedient, for the term of one year from the first day of May
following and until others are appointed in their stead; and the select-
men shall fill all vacancies.
Chap. 24.] FinEs a\d fire depaetments. 179
Sect. 25. Thej- shall immediately after such appointment issue a Engineers, or-
notiee to each of said engineers to meet at a time and place designated S' ^ss^ 3.*^'
in the notice ; at which meeting the engineers shall choose a chief
engineer, a clerk, and such other officers as they may deem necessary
for their complete organization.
Sect. 26. The engineei-s in relation to the extinguishment of fires toiiaycpow-
shall exercise the powers which tirewards may by law have and exercise, "ards ;'tn sp-
and in relation to the nomination and a]ipointment of enginemen shall point engine-
exercise the powers and perform the duties of selectmen. They may isso,' issj § 4.
appoint such number of men to the engines, hose, hook, ladder, and
sail carriages, and to constitute fire companies for securing jn-ojierty en-
dangered by fire, as they may think expedient ; but the number of men
appointed shall not exceed to each suction fire engine, fifty ; to each
common engine, thirty-five ; to each hose-carriage, five ; to each hook
and ladder and sail carriage, twenty-five ; and to each fire company,
twenty-five.
Sect. 27. The engine, hose, hook and ladder, and sail carriage men, Org;anization of
and fire companies, may organize themselves into distinct comjianies, thS'r°by'-™w's"'''
elect the necessary ofticers, and establish such rules, reorulations, and bv- *e-
laws, as may be approved by the board of engineers ; and may annex is,-,V 312; "
penalties to the breach of tlie same, not exceeding ten dollars in any
case ; and tiie same may be recovered by the clerk in an action of tort
to the use of the company.
Sect. 28. The engineers and all persons appointed liy them shall be Privileges and
subject to the same duties and liabilities and entitled to the same priv- !l|',"er"*&c.
ileges and exemptions as enginemen ajipointed by selectmen. i«ii> i*>, § «.
Sect. 29. The board of engineers shall have the care and superintcn- Engineers to
dence of the public engines, hose, fire-hooks, ladder-carriages, and lailders, .'ifiJeg^auj "thcr
in their resiiective towns, together with the buildintrs, fixtures, and an- m-e apparatus,
pendages, belonging thereto, and all pumps, reservoirs for water, and ' ^^'^'■
apparatus, owned by the town and used for extinguishing fires; and
shall cause the same to be kejit in repair, and when worn out to be re-
placed; and, from time to time, shall make such alter.ations therein and
additions thereto as they shall deem necessary ; but such alterations,
additions, or repairs, shall not in any one year exceed the sum of one
hundred dollars, unless the town has authorized a larger approjiriation.
Sect. 30. They may at any meeting establish such rules and regula- may make
tions as they judge proper to prohibit or regulate the cariying of fire, ™hiy "fre? ''^
firebrands, lighted matches, or other ignited materials, openly in the ligiited match-
streets or thoroughfares of such town, or such parts thereof as they may streets' &c.
designate, or to prohibit o'miers or occupants of buildings within their is-jo, iss, § s.
to^vn, or such part thereof as they may designate, from erecting or main-
taining any defective chimney, hearth, oven, stove, or stove-pijie, fire-
frame, or other fixture, deposit of ashes, or any mixture or other material
which may produce spontaneous combustion, or whatever else may give
just cause of alann or be the means of kindling or spreading fire.
Sect. .31. They may make and ordain rules and regulations not other general
repugnant to the constitution and laws of the state, for their own gov- p?CTentin'V&c.,
ernment and the conduct of citizens at fires, and annex penalties for the <ir<"8-
breach thereof not exceeding twenty dollai-s for one oifence ; which may isji^ 312;
be recovered by the chief engineer in an action of tort and apjiropriated
by the engineers to the improvement of the fire apparatus of the town :
but such rules and regulations shall not be landing until approved by
the inhabitants of the town at a meeting held for the purpose, and pub-
lished as the town shall direct.
Sect. 32. No act hereafter passed establishing a fire department in Future acts es-
any town, shall take etfect until it is accepted and approved by the departments?
inhabitants of such town at a meeting held for the purpose. &<=.
° r r 1839, 138, §9.
180
FIRES AND FIRE DEPARTMENTS.
[Chap. 24.
Fire depart-
ments, in vil-
lasjes aud dis-
tricts.
1^■H, 153, § I.
proceedings
to eatablisli.
11H4, 132, § J.
Selectmen, &c.,
to call meeting
npon request of
seven freehuld-
1844, 15a, § 3.
Who to vote at
Buoli meetings ;
clerk to hi eTlo-
seu, his duties.
iJfH, lO'!, 5 4.
At such meet-
ing- tire depart-
lueut may be es-
tablished.
1:<H, 102, § 5.
Certificates.
Engineers, how
chosen.
1K44, 153, § fi.
Meetings of fire
district, how
willed and con-
ducted.
1.-S44, 1,)3, § 7.
Board of engi-
ueers to make
rules, Ac.
JS14, 153, §§8,11
Sec §40.
FIKE DISTRICTS.
Sect. .3.3. Fire departments m.ay be established in villages or districts
containing not less than one thousand inhabitants, the oiKccrs of which
shall have charge of and be responsible for the engines and other a])pa-
ratus for the extinguisliinent of fire therein, in the same manner as fire-
wards and engiuemon of towns.
Sect. 34. Before a district is constituted and organized, a petition
shall be presented to the town at a legal meeting, stating the limits of
the proposed district and requesting the town to raise taxes for the
establishment .ind maintenance of a snfticient fire department for the
reasonable protection from fire of the inhabitants and pro]ierty within
said limits. If the town refuses or neglects so to do, the inhaliitants of
the proposed district may proceed to constitute and organize the same
and to establish a tire department therein as hereinafter provided.
Sect. 3.5. The selectmen ujiou the application in writing of not less
than seven freeholders, inhabitants of such proposed district, setting
forth the limits thereof, and requiring them to notify a meeting of the
inhabitants thereof duly qualified to vote in town aftairs, for the purpose
of considering the ex]iediency of org.anizing such district and establish-
ing a fire department, shall forthwith give notice to such inhabitants, in
the manner of notifying town meetings, to assemble at some suitable
place within the district for said purpose, the substance of which shall
be expressed in the notification. If the selectmen refuse or neglect to
notify .such meeting, any justice of the peace in the county may notify
the same.
Sect. 36. If at any such meeting the voters present detennine to
organize such district, they shall choose a clerk, who shall be ST\orn to
keep a true record of the proceedings of all meetings and to jjerform all
the duties of clerk so long as he holds the oftice. He may be removed
by the district, or may resign, and in case of a vacancy another may be
chosen.
Sect. 37. The district at such meeting may vote to establish a
fire department to consist of a chief engineer, and as many assistant-
engineers, enginemen, hosemen, and hook and ladder men, as they may
deem necessary, not exceeding for each suction engine, seventy-five, for
each common engine, thirty-five, for each one hundred and fifty feet of
leading hose kept for use within the district, five and not exceeding
twenty-five hook and ladder men ; each of said officers and members
shall be furnished with a certificate under the hands of the chief engineer
and clerk, declaring his station in the department.
Sect. 38. The chief engineer and assistant-engineers shall be chosen
by the district and shall be sworn.
Sect. 39. Meetings of the district shall be called by the clerk when
requested in writing by the chief engineer, or two assistant-engineers,
or seven voters of the district ; and he shall give notice of the same by
posting written notifications in at least six public jilaces in the district
not less than seven days prior to the meeting, or by publishing the same
in a newspaper, if one is printeil in the town where the district is situ-
ated, which notifications shall briefly state the purjioses of the meeting.
At each of the meetings a mo<lerator shall be chosen, who shall have the
powers of the moderator of a town meeting. After the choice of a
clerk, he shall preside .at subsequent meetings with like powers until a
moderator is chosen.
Sect. 40. The board of engineers may from time to time make and
publish rules and regulations for their own government, and that of
other members of the dej^artment, and of persons present at fires, and
for regulating or prohibiting the cairying of fire or ignited substances
in or through the streets or ways of the district, and prescribe penalties
Chap. 24.] fires and fire districts. 181
for the violation thereof, not exceeding twenty dollars for each offence. Kngineeis to
The board may a)i]ioint enpinenien, hosenuii, hook and ladder men, i',li!u'."' '^"S^'^"
remove them, and till vacancies in the comjianies.
Sect. 41. Engineers shall have and exercise the same ])owers and power of, and
authority relative to the extinguishment of fires, and the demolishing Jri^^J'fJ,. "thejr
of buildings for that jniqiose within the district, as firewards of towns; "L-ts.
and the inhabitants of districts shall be liable for acts done by such ' "
engineers, or by their orders, in the same manner as towns are liable for
acts done by firewai-ds.
Sect. 42. Engineers and other members of the fire department of Privileges, &c.
sueli district shall iiave the immunities and privileges of firewards and j^^'iaa^jj'^ui;
enginemen of towns, and shall receive such coni])ensation as the district W-
determines.
SiJCT. 43. Such districts may, at meetings called for the purpose, Money raised
raise money for the purchase of engines and other articles necessary for '",a,fcre"o'f'"pri;
the extinguishment of fires, for the j)urchase of land and erection and dential commit-
rejiairs of necessary buildings, and other incidental expenses of the ''n'^'.itc. ° "^ '"""
fire department. They shall choose a jirudential committee, who shall is«> ijA § i2-
have the care, custody, and management, of the money so raise<l, and
shall expend the same for the ]uirposes prescribed by votes of the dis-
trict; and sucli committee shall be accountable to the district for such
money received by them, which may maintain a suit therefor in the
name of the inhabitants thereof.
Sect. 44. The clerk shall certify to the assessors of the town all Assessme<it
sums of money voted to be raised by the district, which shall be as- ""'„Jo'uey vot.d
sessed and collected by the ofticers of the town in the same manner '" I^j.™':';;' ^^
that the town taxes are assessed and collected, and be paid over to the ikh, i52. § i:t.
treasurer, wlio shall hold the same subject to the oi'der of the pru- " '^'^■- ■'^^•
dential committee. The assessors, treasurer, and collector, of any town
in which such district is organized shall have the powers and ]ierform
the duties in reference to the assessment and collection of the money
voted by the fire district, as they have and exercise in reference to tlie
assessment, collection, and abatement, of town taxes, but the sums so
voted shall be assessed upon the property real aiitl personal within the
district.
Sect. 45. Xo by-law, rule, or regulation, adopted hj the district, Hy-iaws,impoB-
and having a penalty attached to it, sliall be in force until it is approved ["r.lj^rov'ed!'"
by the superior'court for the county in which such fire district is. is«, iw, § is.
Sect. 46. Penalties under the provisions of the twelve jjreceding penalties, how-
sections may be recovered by action of tort in the name of the chief ''''™^',^i'?''' ■''''■
engineer and ajipropriated to pay the expenses oi the nre department !«+, 152, §§ s,i5.
of tlie district, or on complaint or indictment to the use of the com- ^^~' ■^'^•
monwealth. If the chief engineer shall die, resign, or remove, during
the pendency of such suit, it shall not abate, but his successor shall be Suit not to
admitted to prosecute it. No inhabitant of the district shall be dis- " " ' '"'
qualilied to act as judge, magistrate, juror, or ofticer, in a suit brought
for such penalties.
Sect. 47. Such district, at a meeting called for that purpose, may District may
alter the limits thereof so as to include any adjacent territory and its particuVanier
inhaiiitants, if the voters of said territory have petitioned therefor, set- i?ons,oreBtate».
ting forth the limits of the territory to be annexed; or exclude any " ' '
person, or the estate of any person, who has thus petitioned, if the town
within which the district is situated has assented thereto.
SjicT. 48. Fire districts heretofore legally organized shall continue Districts iiero-
and be subject to the provisions of this chapter in relation to fire districts. J^^jr "'^°'"'
special provisioxs.
o i^ -vT • • • 11 • -1 /> ^ ■>^ Fire elulis Tint
Sect. 49. ^o association, society, or club, organized as nremen, shall to be estatiisii-
16
182
FENCES.
[Chap.
od, unless, &c.
1S55, IGl, § 1.
Penalty for
joining: without
pormissiou.
Irt55, l(jl, § 2.
Two preceding
li'-^Litions to be
ill force only
Avhere, &c.
itidS, 101, § 3.
be allowed in any city or town except by the written permission of the
mayor and aldermen or selectmen.
Sect. 50. Whoever joins, belongs to, or assembles with, such asso-
ciation, society, or clnb, existing without such permission, shall be
punished by tine not less than five nor more than one hundred d<-)llars,
or by imprisonment in the house of correction for a tenn not exceeding
three months.
Sect. 51. The provisions of the two preceding sections shall l>e in
force in those cities and towns only which have adopted or may adopt
the same.
CHAPTER 25.
OF FENCES AND FENCE VIEWERS, POUNDS, AND FIELD DRIVERS.
FENCES.
Section
1. What shall be a legal fence.
2. Adjoining occupants to maintain fences.
3. Proceedings when a party neglects, &c.
4. Remerty agaiuet atljoiuiug owner, &c., for
repairing, &c., defident fence.
5. Controversies between parties about repair-
ing, &c., how determined.
6. Double damages in case, &c.
7. Fence viewers may order compensation for
repairing more than just share.
8. Partition fences, how kept.
9. liow and where made when lands are
hounded by water.
10. Where lands have been improved without
partition fences, division may be made.
11. Fences to be maintained by agreement of
parties or assignment of fence viewers.
Lands may be laid common by giving no-
tice.
12. When one party lays open enclosed lauds,
the other may purchase right in fence.
13. Where unimproved lands are afterwards
enclosed, &c., party benefited shall pay, &c.
14. Fence viewers, wlieu fences are on town
lines.
15. Where water fence is necessary, how made.
16. Penalty for fence viewer's neglect of duty.
17. Fees offence viewers, how recovered.
POUNDS, AND IMPOUNDINa OF CATTLE ; FIELD
DKIVKKS.
Section
18. Pounds to be provided by towns. Penalty
for neglect.
10. Penalty for injuring pounds.
20. Pound keeper to be appointed.
21. Field drivers to take up beasts going at
large without keeper. Beasts going at large
on herd's day, itc.
22. Beasts taken up to be impounded.
23. Fees to field driver and pound keeper.
24. to be paid by owner of beasts,
25. Beasts doing damage, may be distrained.
20. to be impounded.
27. Person distnuuing to state demand.
28. Beasts not to be delivered until costs, &C.,
are paid.
29. Notice to be given to owner or keeper.
30. or posted up and publisiicd in a news-
paper, in case, &c.
31. 32. Sum due from owTier, how determined.
33- if not paid, beasts to be sold.
34. proceeds, how disposed of.
35. Beasts escaped or rescued, may be retaken.
36. Penalty for rescuing beasts distrained.
37. Legality of distress to be tried only by re-
plevin.
38. Kams and he goats, when not to go at
lai-ge.
What shall be a
le'^^al fence.
It. S. lU, § 1.
Adjoining occu-
pants to main-
tain fences.
|{. S. I'.l, § 2.
2 Met. 180.
4 Met. 589.
4 Gray, 220.
Proceedings
when a party
neglects, Ac.
11. S. 19, § 3.
14 Pick. 27i>.
11 Met. 49G.
Section 1. Fences four feet high and m good repair, consisting of
railsi, timber, boards, or stone, and brooks, rivers, ponds, creeks, ditches,
and he^lges, or other things whicli the fence viewers within whose juris-
diction the same sliall he shall consider equivalent thereto, shall be
deemed legal and sufficient fences.
Sect. 2. The respective occupants of lands enclosed Avith fences,
shall so long as botli parties improve the same keep up and maintain
partition fences between their own and the next adjoining enclosures, in
equal shares.
Sect. 3. If a i>arty refuses or neglects to repair or rebuild a ]>nrti-
tion fence which he ought to maintain, the aggrieved party may com-
plain to two or more fence viewers of the ]>lace, who after due notice to
each ]'arty shall survey the same, and if they determine that the fence
is insufficient, they shall signify the same in writing to the delinquent
occupant, and direct him to repair or rebuild the same within such
Chap. 25.] fences axd fence viewers. 183
time as they judge reasonable, not exceeding fifteen days ; and if the
fence shall not l)e repaired or rebuilt accordingly, tlie complainant may
make or repair the same.
Sect. 4. Wiien a deficient fence bnilt up or repaired by a complain- Remedy against
ant as provided in the preceding section is after tlue notice to each i!rfi""'i^r r?
])arty adjudged sufficient by two or more of the fence viewers, and the iinjnnij.&c., de-
value thereof with their fees ascertained by a certificate under their kI'smcj™"^';
hands, the coniiilainant may demand, either of the occuiiant or owner ',**?!-' ■"-'•„
X' 1 1 1 I 11* 1 /• • Till '' MasB. 05.
ot the land wliere the lenee was clenciciit, double the sum so ascer- s Pick. soa.
tained ; and in case of neglect or retiisal to pay the same so due, for '^ ^'"^^' '""•
one month after demand, he may recover the same with interest at one
per cent, a month, in an action of contract.
Sect. 5. When a controversy arises about the rights of the respcc- controversies
tive occupants in partition fences and their oblio-ation to maintain the i'''<wecn parties
• 1 , ^ ^ . ,. , , about repainng,
same, either party may apply to two or more fence viewers ot the ])laccs .tc, how deter-
where the lands lie, who after due notice to each party may in writing K™4'''i'j, 1 5.
assign to each his share thereof, and direct the time within which each h sict.Vjo.
party shall erect or repair his share, in the manner betbre ])rovided ; ^' "" '**'
which assignment, being recorded in the city or town clerk's office, shall
be binding u]ion the parties and upon the succeeding occu])ants of the
lands; who shall thereafter maintain their respective parts of said fence.
Sect. 6. If a party refuses or neglects to erect and maintain the Double dam-
part of a fence assigned to him by the fence viewers, the same may in jf ''s '" "'||' **'
the manner before provided be erected and maintainecl by any aggrieved n Met. 4%.
party; and he shall be entitled to double the value thereof ascertained
and recovered in the manner aforesaid.
Sect. 7. When in a controversy between adjoining occupants as to Fence viewers
their respective rights in a partition fence, it ap])ears to the fence pl-liwrno^for™
viewers that either of the occu]iants had before any conqilaint made to rcpaiiing; more
them voluntarily erected the whole fence, or more than his just share of h.'s'.-'I'"*/?.'"'^"
the same, or otherwise become projiiietor thereof, the other occupant J| i/'^f jm"'
shall pay the value of so much thereof as may be assigned to him to
repair or maintain, to be ascertained and recovered as provided in this
chapter.
Sect. 8. Partition fences shall be kept in good repair throughout Partition fen-
the }-ear, unless the occupants of the lands on both sides shall otherwise JJ'^g''"" §'»''*'
agree-
Sect. 9. When lands of diffi'rtMit ]iersons which are required to be how and
fenced, are bounded u])on or divided from each other, by a river, brook, wiu.n''iaid'8\re
pond, or creek, if the occupant of the land on one side refuses or neg- imumied by wa-
lects to join with the occupant of the land on the other side in making li.'s. lo, §w.
a partition fence on the one side or the other, or shall disagree respect- " Met. 4%.
ing the same, then two or more fence viewers of tlie jilace or places
Avherein such lands lie, on application made to them, shall forthwith
view such river, brook, ])ond, or creek ; and if they determine the same
not to answer the pur])ose of a sufKcient fence, and that it is impractica-
l)le to fence on the true boundary line without unreasonable expense,
they shall, after giving notice to the parties to be present, determine
how, or on which side thereof^ the fence shall be set up and maintained,
or whether ]iartly on the one side and jwrtly on the other side, as to
them shall appear just, and shall reduce their determination to writing;
asid if either of tlie parties refuses or neglects to make and maintain his
part of the fence according to the determination of the fence viewers,
the same may be made ami maintained as before provided, and the de-
linquent party shall be subject to the same costs and charges to be re-
covered in like manner.
Sect. 10. When lands belonging to two persons in severalty have where lands
been occupied in common ^\nthout a jiartition fence between them, and prm'^'iTwitblmt
one of the occupants desires to occupy his part in severaltv, and the partition fences.
184
FENCES AND FENCE VIEWERS.
[Chap. 25.
'livision may be
Made,
t:. S. 10, § 10.
Fences to be
maintiiinod hy
agreement ot
liarties or as-
nignmeut of
lenee viewers,
f.antls may be
l.iid common by
i;'ivin'r notice.
U. S. I'J, § 1.5.
1 Gush. 15.
When one par-
ty lays open cu-
elosed lands,
the other may
purcljase rif^ht
in fence.
1!. S. 19, § 11.
Where unim-
proved lands
arc enclosed,
&c., party ben-
efited shall pay,
&c.
K. S. 19, § 12.
1847, 102.
lSo2, .iia.
1 CuBh. 11.
Fence viewers,
when fences are
oil town lines.
K. S. lU, § 13.
■\Vater fences,
how made.
U. S. Ill, § 11.
11 Met. 4'J(J.
Penalty lor
foucc viewer's
nejjlect of duty,
K. S. 19, § 17.
1839, 133.
Fees of fence
viewers.
how recov-
ered.
11. S. 19, § 18.
1852, 312.
other occupant refuses or neglects on demand to divide the hue wliere
the fence ought to be built, or to build a sufficient fence on his jiart of
the line when divided, the party desiring it may have tlie same divided
and assigned by two or more fence viewers of the same ])lacc in the
manner provided in tliis chajiter ; ami the fence viewers m.iy in writing
assign a reasonable time, having regard to the season of tlie year, for
making the fence; and if the occujiant complained of does not make his
part of the fence within the time so assigned, the other party may, after
having made u\> his ])art of the fence, make np the jiart of the other,
and recover therefor double the expense thereof; together with the fees
of the fence viewers, in the manner provided in this chapter.
Sect. 11. Where a division offence between the owners of improved
lands has been made either by fence viewers or under an agreement in
writing between the parties, recorded in the office of the clerk of the
city or town, the several owners of such lands and their heirs and as-
signs shall erect and sujjport said fences agreeably to such division ; but
if a person lays his lands common and determines not to imj^rove any
part of the same adjoining the fence divided as aforesaid, ami gives six
months' notice of his determination to all the adjoining occupants of
lands, he shall not be required to keep uj) or sup]iort said fence duriug
the time that his lands lie common and unimproved.
Sect. 12. When one party ceases to improve his land or lays open
his enclosure, he shall not take away any part of the partition fence be-
longing to him and adjoining to the next enc\osnre, jjrovided the owner
or occupant thereof will allow and pay therefor so much as two or more
fence viewers in writing iletermine to be the reasonable value thereof.
Sect. 13. When land which has lain unenclosed is al'terwards en-
closed or used for depasturing, the occupant or owner thereof shall pay
for one-half of eacli partition fence standing upon the line between the
same land and the land of the enclosures of any other occupant or owner,
the value thereof to be ascertained in writing (in case they do not agree
between themselves,) by two or more of the fence viewers of the same
place wherein such jjartition fence stands ; and if such occu]iant or
owner, after the value has been so ascertained, neglects or refuses, for
thirty days after demand made, to pay for one-half of the partition fence,
the proprietor of the fence may maintain an action of contract for such
value, and the costs of ascertaining the same ; but tlie occupant or
owner of unenclosed land on the island of Nantucket, used for depas-
turing only, shall not be subject to the foregoing jirovisions of this
section.
Sect. 14. AVhere the line upon which a partition fence is to be made
or divided is the boundary line of one or more cities or towns, or partly in
one and partly in another, a fence viewer shall be taken from each jilace.
Sect. 15. When a water fence, or fence running into the water, is
necessary to be made, the same shall be done in equal shares unless
otherwise agreed by the ])arties ; and in case either ]iarty refuses or
neglects to make or maintain tlie share to him belonging, similar pro-
ceedings shall be had as in other cases of the like kind resiiecting other
fences before mentioned.
Sect. 16. Any fence viewer duly chosen and sworn wlio when re-
quested unreasonal)ly neglects to view a fence, or to perform any other
duties required of him in this chapter, shall forfeit five dollars, to be
recovered by action of tort to the use of the place, or on coin])laint to
the use of the commonwealth, and he shall also be liable for all dam-
ages to the party injured.
Sect. 17. Each fence viewer shall be paid by the person em]iloying
him at the rate of two dollars a day for the time he is so emjiloyed;
and if such jierson neglects to pay him within thirty days after the ser-
vice has been ))erfbrmed, he may recover in an action of tort double the
amount of such fees.
Chap. 25.] pounds and impounding of cattle; field drivers. 185
pounds and impounding of cattle ; field drivers.
Sect. 18. Each city and town shall at its own expense and in such Pounds to be
places therein as the city council of the city or the inhabitants of the P™"<''!d by
' T . . *^ rt. . '^ 1 » • towns.
town dn-eet, maintain one or more sumcient pounds. A city or town ivnaityfomeg-
that for three months neglects to provide or maintain a sufficient pound, ij^'g ,9^ 55 jj
shall forfeit tilty dollars. 20. iws, a?2.'
Sect. 19. Whoever wilfully injures a city or town pound, shall be ron.iity for in-
punished by line not exceeding fifty dollars or by imjirisoument in the ■'i."''i''''„||"'J'"f'''
common jail not exceeding ninety days. '' ' ' " '
Sect. 20. Each city and town shall annually ap])oint a suitable Pound keeper,
keeper of eacli pound therein. ^'- ®- '"■ ^ -'•
Sect. '21. Every field driver within his city or town, shall take up Beasts going- at
at any time, swine, sheep, horses, asses, mules, goats, or neat cattle, going !:'!'p."'"r"'
at large in the ])ublic higliwa3s or townways or on common and unira- t;ik™ up, &c.
proved lands, and not under the care of a keeper; and for any such i^?'3?2^^^'
cattle or beasts so going at large on the Lord's day, the field driver or 21 i^ck. is7.
any other inhabitant of the city or town may in an action of tort recover tl Mrt.'m
for each beast the same fees which the field driver is entitled to receive j p"*''™'^"--.
for like beasts when distrained and impounded. '
Sect. 22. When lieasts are so taken up and distrained by a field tobeim-
diiver, they shall be forthwith impounded in tlie city or town pound, f."""'','','?,' c
and the keeper shall furnish them with suitable food and water while 5 c'usii. Vfi:). '
they are detained in liis custody. I'^Cush^il'
Sect. 23. The field driver shall be entitled to fifty cents per head I'ws of iicid
for horses, asses, mules, and neat cattle, and ten cents iier head for !',",y,','i i,".''„„,
sheep, goats, and swine, so taken up by him, and the pound keejier u. s. 113, §a.
shall be entitled to four cents per head for the animals so imiiounded ;
but if more than ten sheep are taken up at the same time, the fees for
all above that number shall be only one-half of the above fees.
Sect. 24. The pound keeper shall not deliver to the owner any tobopni.iby
beasts so imjiounded, until the owner jiays him his fees, the expense of "" 14*^71" ''§T'^'
keeping the beasts, and the fees of the field driver, which latter when ^1 i'i<;k. isi.
received he shall ]iay to the field driver.
Sect. 25. When a person is injured in his land by sheep, swine, Beasts doing
horses, asses, mules, goats, or neat cattle, he may recover his damages in Jji'JJ'r''iuu«T"^ """^
an action of tort against the owner of the beasts, or by distraining the H- S- ii:i,§4.
beasts doing the damage, and proceeding therewith as hereinafter llirVcnt. .356.
directed; but if the beasts were lawfully on the adjoining lands and n ^muss. uo^
escape therefrom in consequence of tlie neglect of tlie ])ersoii who sutlered 4 Viet.'^ssu.''
the damage to maintain his part of the division lenee, the owner of the >^M^^t--W".
beasts shall not be liable for such damage.
Sect. 26. Tlie beasts so distrained for doing damage shall be im- loi,,- im-
pounded in the city or town pound, or in some suitable jilace, under the ?""s"'i'-'i" 55
immediate care and inspection of the person who distrained tlieni, and i-i Met. ir.
lie shall furnish them with suitable food and water while they remain
impounded.
Sect. 27. If the beasts are impounded in the city or town pound, Persdmiistrain-
the distrainer shall leave with the pound kee])er a memorandum in li"f„j' "^''"^ '''^"
writing under his hand stating the cause of im])ouiiding, and the sum if. s. 11.1, § o.
that he demands from the owner for the damage tlone by the beasts, 'r^ y^^\ .Isi;
and also for the daily charges of feeding them ; and if they are inijiounded 'r ''''• ''■''*•
in any other jilace, he shall give a like memorandum to the owner of
the beasts if demanded by him.
Sect. 28. The jiouiid keeper, when the beasts are in his custody, itoists nottobo
shall not deliver them to the owner until the owner pays him his fees, ;•' ''>^''"''<i "ntii
-1 111 IT ■ I' IT -I ^' costs, die, are
the sum so denianded by the distrainer tor the damages and charges p>^(\-
aforesaid, the exjiense of advertising the beasts if they are advertised, '*' ^' ^'^' * ''
and all other legal costs and expenses.
16* 24
186
POUNDS AND IMPOUNDING OF CATTLE ; FIELD DRIVERS. [ChAP. 25.
Notice to be
given to owner
or keeper.
E. S. 113, § 8.
21 Pick. IS?.
23 Pick. 251.
12 Met. 118,198.
7 Cush. 355.
2 Gray, ir8.
or posted uji,
and jHibllsIiL-ii
in a newspaper,
in case, &e.
K. S. 113, § 9.
Sum due from
owner, how de-
termined.
K. S. 113, § 10.
Same subject.
E. S. 113, § 11.
21 Pick. 55.
if not paid,
beastB to be
sold.
E. .S. 11.3, § 12.
21 Pick. 55.
proceeds, bow
disposed of.
E. S. 113, § 13.
Beasts escaped
or rescued may
be retaken.
E. S. 113, § 14.
Penalty for res-
cuing beasts
distrained.
E. S. 113, § 15.
1852, 312.
1 Mass. 108.
17 Slass. .342.
4 Mass. 471.
5 Cush. 20r.
Sect. 29. When beasts are impounded, the person impounding them
shall within twenty-four hours thereafter give notice thereof in A\riting
to the owner or person having the care of them, if known and living
within six miles from the place of impounding, which notice shall be deliv-
ered to the party or left at his place of abode, and shall contain a descrip-
tion of the beasts and a statement of the time, place, and cause, of im-
pounding.
Sect. 30. If there is no person entitled to notice according to the
provisions of the preceding section, the person impounding the beasts
shall within forty-eight hours thereafter cause to be j)osted in some pub-
lic ])lace in the city or town, and in a public place in each of any two
adjoining cities or towns, if within four miles from the place where they
were taken, a written notice containing a description of the beasts and
a statement of the time, ]ilace, and cause, of mipounding them ; and in
such case, if the value of the beasts exceeds thirty dollars, and if no per-
son appears to claim them within seven days after the day of imj^ouiid-
ing, a like notice shall be published three weeks successively in some
public newspaper if there is any published within twenty miles from the
place of im])Ounding, the first publication to be within fifteen days after
the day of impounding.
Sect. 31. If the owner or keeper of the beasts is dissatisfied with
the claim of the person impounding them, he may have the amount for
which he is liable ascertained and determined by two disinterested and
discreet persons, to be apjiointed and sworn for that purpose by a justice
of the peace or by the city or town clerk; and the sum so determined
by them shall be received instead of the sum demanded by the jierson
who impounded the beasts, and they shall thereupon be delivered to the
owner or keeper thereof
Sect. 32. If the sum for which the beasts are imjiounded and detained
is not paid within fourteen days after notice of the impounding has been
given as before directed, or after the last publication of such notice in
a newspaper, the person who impounded them shall apply to a justice
of the peace, or to the city or town clerk, and obtain a warrant to two
disinterested and discreet persons, to be appointed and sworn by the
justice or clerk, and the persons so ap]iointed shall ascertain and deter-
mine the sum, due from the owner or keej)er of the beasts for the dam-
ages, costs, and expenses, for which they are im])ounded and detained,
including a reasonable compensation for their own services.
Sect. 33. If the sum so found to be due is not forthwith yiaid, the
person who imjiounded the beasts shall cause them to be sold by auc-
tion, in the city or town where they are impounded, first advertising the
sale by jiosting u]i a notice thereof twenty-four hours beforehand at
some public place in the same city or town.
Sect. 34. The procee<ls of such sale after paying all said damages,
costs, e.\]ienses, and charges for advertising and selling the beasts, shall
be deposited in the treasury of the city or town, for the use of the owner
of the beasts, in case he substantiates his claim thereto within two years
from the sale.
Sect. 35. If beasts lawfully di.strained or impounded escape or are
rescued, the pound keeper, field driver, or other j)erson, who distrained
them, may at any time within seven days thereafter retake the beasts
and hold and dispose thereof as if no such escajje or rescue had taken
place.
Sect. 36. Whoever rescues beasts lawfully distrained or imjiounded
for any cause whatever, shall be liable in an action of tort brought
by any person injured to pay all damages which such person sustains
thereby, and the fees and charges incurred before the rescue ; and he
shall also forfeit a sum not less than five nor more than twenty dollars,
to be recovered by complaint.
Chap. 26.]
PUBUC HEALTH.
187
Sect. .37. The defendant iu an action brought for rescuing beasts
distrained or impounded shall not be allowed to allege or give in evi-
dence the insufficiency of the fences, or any other fact or circumstance
to show that the distress or impounding was illegal ; but if there is such
ground of objection to tlie proceeding of which he is entitled to avail
uimselfi he may have the advantage thereof in an action of replevin.
Sect. 38. If the owner of a ram or he goat sutfers it to go at large
out of his enclosure between the first day of July and the twenty-fitth
day of December, he shall forfeit five dollars for each ott'ence, if prose-
cuted within thirty days next atler such ram or he goat is found going
at large, to be recovered on complaint iu the county in which such
owner lives.
Legality of dis-
tress, how
tried.
R. S. 113, § 16.
4 Mass. 471.
5 I»iok. 514.
See Ch. 14«.
Ramni and he
t;oat8, when not
to go at large.
K. S. 19, J M.
TITLE YIII.
OF THE PUBLIC HEALTH AND BURIALS.
Chapter 26. — Of the Preservation of the Public Health,
Chapter 27. — Of the Promotion of Anatomical Science.
Chapter 28. — Of Cemeteries and Burials.
CHAPTER 26.
OF THE PRESERVATION OF THE PUBLIC HEALTH.
Section
1. To.wus to choose board of health or health
officer ; or si'lectmen to act.
2. City council to appoint board of health, or
make either or both branches, or a commit-
tee, the board.
3. Board may appoint physician.
4. Compensation of physician, &c.
NUISANCES, CONTAGION* &C.
5. Board to make regulations respecting' nui-
sances, &c.
6. to give notice of their regulations.
7. to examine into and abate nuisances, &c.
8. to order nuisances, &c,, abated ; penalty
on owntT of land, &c., for refusing.
9. Order of abatement, how served.
10. 0\vn(.T not complying, board to remove the
nuisance at his expense.
11. Board may notify occupants of unfit dwell-
ing place to quit, &c.
12. "When a party is convicted of nuisance,
court may order it destroyed.
13. Superior court may issue injuactlons in
cases of nuisance.
Section
14. Board may make compulsory examination
of premises, when refused, &c.
15. may grant permits for the removal of in-
ferteil articles or sick persons.
16. to make necessary provision for persons
infected with dangerous diseases.
17. If infected person cannot be removed, oth-
ers may be.
18. Persons may be stationed on borders of
other states, to examine, &c.
19. Two justices of the peace may issue war-
rant to remove sick persons.
20. One justicf may issue warrant to sheriff to
secure infected articles, who may impress
aid.
21. Justice may take up houses and stores,
&c., for safe keeping of goods, &c.
22. Officers may break open houses, shops, &c.,
and command aid.
23. Expenses to be paid by owners of goods.
24. Town to make compensation for houses,
&c., or services impressed.
25. Removal of prisoners attacked with disease.
2t5. Return of removal to be made to court;
such removal not an escape.
188
PUBLIC HEALTH.
[Chap. 26.
vaccination,
Section
2r. Parents, &c., to cause children and wards
to be vaccinated. Penalty for neglect.
28. Selectmen, A-c, to enforce vaccination and
revacciuation. IVuulty lor neglect.
29. Towns to provide means for vaccination.
30. Inmates of man u factories, almshouses, &c.,
to be vaccinated.
31. Towns may make further provision for
vaccination.
QUARANTINE.
32. Towns may establish quarantine jjround.
33. Two or more towns may establish a com-
mon quarantine ■,'Tound.
34. Board of health may establish the quaran-
tine of vessels.
35. Quarantine regulations to extend to all per-
sons, &c.
30. Penalty for violation after public notice.
37. Vessels suspected of infection to be ordered
to quarantine ground.
38. Penally if master, seaman, &c., refuse to
make answer on oatli, &c.
39. Quarantine expenses to be paid by person
or owner.
HOSPITALS AND DANGEROUS DISEASES.
40. Hospitals may be provided by towns.
41. to be under orders of board of health.
42. not to be established within one hundred
rods of house in adjoining town, unless,
&c.
43. Physicians and others in hospitals to be
subject to board ef health.
Section
44. Board of health to provide hospital or other
place when, &c. ; may cause sii'k and in-
fected persons to be removed to hospital.
45. Selectrnen to give notice, by suitable sig-
nals, of infected places.
40. Penalty on physicians and others in hospi-
tals, &c., for violating regulations
47. Every householder to give notice of dan-
gerous disease in his family. Penalty.
48. Penalty on physician for not giving notice
of dangerous disease.
49. Expenses recoverable of individuals, Iiow
sued for.
50. Fines and forfeitures to inure to use of
town
51. Certain provisions not to apply to small-
pox.
OFFENSIVE TRADES.
52. Board to assign places for exercising offen-
sive trades, and may prohibit.
53. Superior court may, on complaint, revoke
such assignment.
54. Action for damages from nuisance.
55. Orders of prohibition, &c., to he served on
occupant. If he refuses to obey, board may
prevent. Penalty.
50. Appeal by person aggrieved. Proceedings.
57. Trade not to be exercised pending proceed-
ings.
5S. Verdict of jury may alter, &c., order ; to be
returned for acceptance.
59. Costs, — how and when assessed, on whom,
and to what amount.
60. Chapter extends to cities.
Towns to
choose board of
health, or
health oflicer ;
or selectmen to
act.
R. S. 21,§1.
8 Cush. C8.
City council to
appoint board
of health, or,
&c.
1649, 211, §5 1,2.
Board may ap-
point physician.
K. S. 21, §3.
Compensation
of physician,
&c.
R. S. 21,§4.
Board to make
regulations re-
specting nui-
sances, &c.
R. S. 21, §§ 5, 6
Section 1. A town respecting" which no provision is made by special
law for choosing a board of heahh, may, at its annual meeting or at a
meeting legally warned for the pui*i)osc, choose a board of health, to
consist of not less than three nor more than nine persons ; or may choose
a health officer. If no board or officer is chosen the selectmen shall be
the board of health.
Sect. 2. Except where different provision is made by law, the city
council of a city may apj)oint a board of health; may constitute either
branch of such council, or a joint or separate committee of tlieir body,
a board of health, either for general or special ]>ur])oses, and may pre-
scribe the manner in which the poM^ers and duties of the board sliall be
exercised and carried into effect. In default of the appointment of a
board with full powers, the city council shall have the powers and per-
form the duties prescribed to boards of health in towns.
Sect. 3. Every board of health may appoint a physician to the
board, who shall hold his office during its pleasure.
Sect. 4. The board shall establish the salary or other comjiensation
of such physician, and shall regulate all fees and charges of jiersOns
employed by it in the execution of the health laws and of its own
reo-ulations.
NUISANCES, CONTAGION, &C.
Sect. 5. The board shall make such regulations as it
for the public health and satety, resjiecting nuisaiice^^
and causes of sickness, within its town, or on board of vessels within its
harbor; and respecting articles Avhich are cajiable of containing or con-
veying infection or contagion, or of creating sickness, brouglit into or
conveyed from its town, or into or fi'om any vessel,
udges nocessaiy
sources of filth.
Whoever violates
Chap. 2G.] public health — ndisances, contagion. 189
any such regulation shall forfeit a sum not exceeding one hundred
dollars.
SfXT. 6. Notice shall be given by the board of all regulations made Bonrd to give-
by it, by publishing the same in some newspaper of its town, or where "aiio^^g" '^''°""
there is no such newspaper by posting them up in some ])ubUc place in is. s. 21, §s.
the town. Such notice shall be deemed legal notice to all jiersons.
Sect. 7. The board shall examine into all nuisances, sources of filth, to examine
and causes of sickness, within its town, or in any vessel within the !"Ji°.™cc-s''&c'i
harbor of such town, that may in its opinion be injurious to the health 11. .s. 21, §«.
of the inhabitants, and the same shall destroy, remove, or prevent, as
the case may require.
Sect. 8. The board or the health officer shall order the owner or to order mii-
occupant at his own expense to remove any nuisance, source of filth, or ^J,"5^^'J ^'''
cause of sickness, found on priv.ate projierty, within twenty-four hours ponnlty for
or such other time as it deems reasonable al'ter notice served as [u-ovided JmI'^Ju; § 3.
in the following section; and if the owner or occu))ant neglects so to ^^.^..Y'^'^g- cr
do, he shall forfeit a sum not exceeding twenty dollars for every day ch.8s,§§'*o,4i.
during which he knowingly permits such nuisance or cause of sickness
to remain after the time prescribed for the removal thereof.
Sect. 9. Such order shall be made in writing, and served by any onier for abatc-
person competent to serve a notice in a civil suit, jiersonally on the ""rvcd'.'""
owner, occupant, or his authorized agent; or a coi)y of the order may iH'.t,2ii,§4.
be left at the last and usual place of abode of the owner, occupant, or cii! ss'sf 4of4'.
agent, if he is known and within the state. But if the premises are
unoccupied and the residence of the owner or agent is unknown or
without the state, the notice may be served by ])osting the same on the
jiremises and advertising in one or more public news])apers in such
maimer and for such length of time as the board or health officer may
direct.
Sect. 10. If the owner or occupant fails to comply with such order, Owner not com-
the board may cause the nuisance, source of filth, or cause of sickness, remove th"'mii"
to be removed, and all expenses incurred thereby shall be paid by the sance at bis ex-
owner, occupant, or other person who caused or jiciniitted the same, if m'!/,"2ii, f s.
he has had actual notice from the board of health of the existence thereof. ciT^'m+im?
Sect. 11. The board, wdien satisfied upon due examination that any uo.ird'mav noti-
cellar, room, tenement, or building, in its tcnvn, occupied as a dwelling fy oecupimts of
place, has become by reason of the number of occupants, or want of place to quitr
cleanliness, or other cau.se, unfit for such ]nirj)ose and a cause of nuisance ^^
or sickness to the occupants or the puljlic, may issue a notice in writing
to such occu])ants, or any of them, recpiiring the premises to be jmt into
a pro])er condition as to cleanliness, or if the)' see fit requiring the occu-
pants to retnove or quit the premises within such time as the board may
deem reasonable. If the persons so notified, or any of them, neglect or
refuse to comply with the temis of the notice, the board may cause the
premises to be properly cleansed at the ex))ense of the owners, or may
remove the occupants forcibly and close up the premises, and the same
shall not be again occupied as a dwelling place without the consent in
writing of the board. If the owner tliereafter occupies or knowingly
permits the same to be occupied without such permission in writing, he
shall forfeit a sum not less than ten nor more than fifty dollars.
Sect. 12. When a jierson is convicted on an indictment for a com- when a party is
nion nuisance injurious to the public health, the court in their discretion nSnlo! court
may order it to be removed or destroyed at the expense of the defend- may order it (le-
ant, under the direction of the board of health ; and the form of the K.'s!^ai' § 12.
warrant to the sherift' or other officer may be varied accordingly.
Sect. 13. The superior court, or a justice thereof in term time or Court may is-
. , ^ , ^ ' ,. •" i- I- sue injunctions,
vacation, may, either betore or pending a prosecution tor a common lu eases of uui-
nuisance atfecting the public health, issue an injunction to stay or pre- 5j'"5%] 5 jg
vent the same until the matter shall be decided by a jury or other-^-ise ; i.-igVioo.
190 PUBLIC HEALTH — NUISANCES, CONTAGION. [CUAP. 2G.
may enforce such injunction according to the course of proceedings in
chancery ; and may dissolve the same when the court or one of the
justices shall think proper.
noard may Sect. 14. When the board think it necessarj' for the preservation of
?}''examTn''a"tioQ the lives or health of the inhabitants, to enter any land, buililing, or
of premises, vessel, within its town, for the iniriwse of examinina; into and destroy-
when retused, . . ,- • ^^iii^i "i?
&c. ing, removinir, or preventing, any nuisance, source ot tiltn, or cause oi
u. s. 21, § H. sickness, and shall be refused sueli entry, any member of the board may
make complaint under oath to two justices of the peace of the count}-,
stating the facts of the case so far as he has knowledge thereof, and the
justices may thereupon issue a warrant directed to the sherift" or either
of his deputies, or to any constable of such town, commanding him to
take sufficient aid, and being accompanied by any two or more members
of said board, at any reasonable time to repair to the place where such
nuisance, source of filth, or cause of sickness, complained of may be,
and the same to destroy, remove, or prevent, under the directions of
such members of the board,
may permit Sect. 15. The board may grant permits for the removal of any
fected articles n^isance, infected articles, or sick person, within the hmits of its town,
Ac. ' when it thinks it safe and proper so to do.
In „ 1 ' Sect. 16. When any person coinins from abroad or residinf; in any
shall make . .•.',. , i ^ i i i ■ ^ i ^ . i i •'
provision for town in this State IS intected, or lately has been intected, with the
persons uifect- pi.,gjjg qj. o);]je,. sickuess dangcrous to the public health, except as is
1837, 244, § 1. otherwise provided in this chapter, the board shall make effectual pro-
1848 119 ...' ..'. .*.
2Cu'8h. 52. vision in the manner which it judges best for the safety of the inliabit-
See§5i. ants, by removing such person to a separate house or otherwise, and by
providing nurses and other assistance and necessaries, which shall be at
the charge of the person Iiimself, his jiarents, or master, if able, other-
wise at the charge of the town to which he belongs ; and if he is not
an inhabitant of any town, at the charge of the commonwealth.
If infected per- Sect. 17. If the infectcd person cannot be removed without danger
removed,°other8 to his health, the board shall make provision for him as directed in tlie
may be, &c._ preceding section in the house in which he may be ; and may cause the
1838, Tas. ' persons in the neighborhood to be removed, and take such other meas-
See§5i. uj-es ^g jj judges necessary for the safety of the inhabitants.
Persons may be Sect. IS. The board of health of any town near to or bordering
Saeeirborder- "pon either of the neighboring states, may appoint, by writing, suitable
ins; on other persous to attend at places by which travellers may pass from infected
ine.&c.'"'''^''™ places in other states; who may examine such tr.avellers as it suspects
K. S. 21, §18. of bringing any infection dangerous to the public health, and if need
be may restrain them from travelling until licensed thereto by the board
of health of the town to wliich such person may come. A traveller
coming from such infected place who shall without such license travel
within this state, (except to return by the most direct way to the state
from whence he came,) after he has been cautioned to depart by the per-
sons so ap]ioiiitcd, shall forfeit a sum not exceeding one hundred dollars.
Two justices of Sect. 19. Two justices of the peace may if need be make out a war-
issue warrant^to i"^i^t directed to the shcrift'of tlie C( unity, or his deput\-, or to any con-
remove sicic stable, requiring tliem under the direction of the board to remove any
K."?"ii § 19. person infected with contagious sickness, or to impress and take up
convenient houses, lodging, nurses, attendants, and other necessaries,
for the accommodation, safety, and relief, of the sick.
One justice may Sect. 20. When, Upon tlie apjilication of the board, it ajjpears to a
sh'eriff ?o ^"ure justice of the peace that there is just cause to suspect that any baggage,
infected arti- clothing, or goods, found witliin the town, are infected with the plague
inipressai"!"'^ or Other disease which may be dangerous to the public health, the jus-
K. s. 21, §20. tice shall, by warrant directed to the sheriff or his deputy, or to any
constable, require him to impress so man}' men as said justice may
judge necessary to secure such baggage, clothing, or other goods, and
Chap. 2G.] public health — vaccination. 191
to post said men as a guard over the house or place where such articles
are lodged ; who shall take effectual care to prevent persons from remov-
ing or coming near the same, until due inquiry is made into the cir-
cumstances.
Sect. 21. The justice may by the same warrant, if it appears to him .lustieemay
necessary, require the officers, under the direction of the board, to im- 'n,Y storosr&c,
iiress and take up convenient houses or stores for the safe keeping of '''•'■ '^■'•'i keeping
such articles; and tlie board may cause them to be removed thereto, or k.s. 21, §21.
otherwise detained, until, in the opinion of the board, they are freed
from infection.
Sect. 'I'l. The officers, in the execution of the wan-ant, shall if need officers may
be break open any house, shop, or other place, mentioned in the war- i",™s'j.s°''b™ops,
rant, where such articles are; and may require such aid as is necessary &o., auti com-
to effect the execution of the warrant. Whoever neglects or refuses to k.s. 21, §22.
assist in the execution of the warrant, after being commanded to assist
by either of said officers, shall forfeit a sum not exceeding ten dollars.
Sect. 23. The charges of securing such articles, and transjiorting Expenses to be
and purifying the same, shall l)e ]>.iid liy tjie owners, at such rates and of'^^ooSs"*™'''^'
prices as may be determined by the board. u.s. 21, §2.3.
Sect. 24. When a sheriff or other officer impresses or takes up any T.iw-n to make
houses, stores, lodging, or other necessaries, or impresses men, as pro- S;'™,P!:,??''!'"t°
vided in this chapter, the several parties interested shall be entitled to a or services im-
just compensation therefor, to Vje paid by the town in which such per- i"s^|i', § 04.
sons or property are so impressed.
Sect. 25. When a )>crson confined in a common jail, house of cor- itomovai of
rection, or woi'khouse, has a disease which, in the oj)inion of the phy- 'acko'dwlthdis-
sician of the lioard or of such other uhvsician as it mav consult, is ease,
dangerous to the s.afety and health of other prisoners or of the inhab- • • 'S •
itants of the town, the board shall Ijy its order in writing direct the
removal of such person to some hos])ital or other place of safety, there
to be provided for and securely kcjit so as to ])rcvent his escape until its
further order. If such person recovers from the disease he shall be
returned to said prison or other place of confinement.
Sect. 2G. If the person so removed is committed liy order of Uetumofremo-
court or under judicial process, the order for his removal, or a copy to 'court, ""such
thereof .attested by the presiding member of the board, shall be re- removal not an
turned by him, with the doings thereon, into the office of the clerk of iffs^l'i, §26.
the court from which the process of commitment was issued. No piis-
oner so removed shall thereby commit an escape.
vaccination.
Sect. 27. Parents and guardians shall cause their children and wards Parents, &c., to
to be vaccinated before they attain the age of two years, and revacci- i™fto''be'va"'
nated whenever the selectmen or mayor and .aldermen shall after five dnutcti.
years from the last vaccination require it. For every year's neglect the 1^0"." ^ ""^''S-
party offending shall foi-feit the sum of five dollars. ibss, 414, §§ 1, 3.
Sect. 28. The selectmen and mayor and aldermen shall i-equire and siiertmen, &c.,
enforce the vaccination of all the inhabitants, and, whenever in their I."„y,\'J°n','yc"''
opinion the public health requires it, the revacciuation of all the inhabit- I'enaityforneg-
ants who do not prove to their satisfaction that they have been success- isoi, 4h, §§3, 4.
fully vaccinated or revaccinated within five ye.ars. All persons over
twenty-one years of age, not under guardianship, who neglect to com-
ply with any such requirement, shall forfeit the sum of five dollars.
Sect. 29. Towns shall furnish the means of vaccination to such of Towns to pro-
their inhaliitants as are unable to pay for the same. iii'55,"i4!T6.
Sect. 30. Incorporated manufacturing companies; superintendents inmates of man-
of almshouses, state refoi-m, and industrial schools, lun.atic hospitals, "|I;',5'I""'j^f'™(f'
and other places where the poor and sick are received ; masters of houses be vaccinated.
192
PUBLIC HEALTH
QUARANTINE.
[Chap. 26.
1855, 414, §§ 5, 6. of Correction, jailors, keepers of prisons, the warden of the stnte prison ;
and superintendents or officers of all other institutions supported or
aided by the state ; shall at the expense of their respective establish-
ments or institutions cause all inmates thereof to be vaccinated im-
mediately upon their entrance thereto, unless they produce sufficient
evidence of previous successful vaccination within hve years.
Sect. 31. Each town may make further provision for the vaccination
of its inhabitants, under the direction of the board or a committee
chosen for tlie purpose.
QUAEANTESTE.
Sect. 32. A town may establish a quarantine ground in a suitable
place either within or without its own limits ; but if such place is with-
out its limits, the assent of the town within whose limits it may be es-
tablished shall be first obtained.
Sect. 33. Two or more towns may at their joint expense establish
a quarantine ground for their common use in any suitable jjlace either
within or without their own limits ; but if such jilaee is without their
limits, they shall first obtain the assent of the town within whose limits
it may be.
Sect. 34. The board of health in each seaport town may from time
to time establish the quarantine to be performed by vessels arriving
within its harbor ; and may make such quarantine regulations as it
judges necessary for the health and safety of the inhabitants.
Sect. 35. Such regulations shall extend to all persons, goods, and
effiicts, arriving in such vessels, and to all persons who may \isit or go
on board of the same.
Sect. 36. Whoever violates any such regulation after notice there-
of has been given in the manner before provided in this chajtter,
shall forfeit a sum not less than five nor more than five hundred dol-
lars.
Sect. 37. The board in each seaport town may at all times cause a
vessel arriving in such port, when such vessel or the cargo thereof is in
its opinion foul or infected so as to endanger the public health, to be
removed to the quarantine ground and thoroughly purified at the ex-
pense of the owners, consignees, or persons in possession of the same;
and may cause all jjersons arriving in or going on board of such vessel,
or handling the cargo, to be removed to any hospital under the care of
the board, there to remain under their ordere.
Sect. 38. If a master, seaman, or passenger, belonging to a vessel
on board of which any infection then is or has lately been, or is suspected
to have been, or which has been at or has come from a port where any
iiiieetious distemper prevails that may endanger the public health, re-
fuses to make answer on oath to such questions as may be asked him
relating to such infection or distemper by the board of health of the
town to which such vessel may come, (which oath any member of the
board may administer,) such master, seaman, or ]iassenger, shall forfeit
a sum not exceeding two hundred dollars ; and if not able to pay said
sum he shall sufier six months' imprisonment.
Quarantine? ex- Sect. 39. All expenses incurred on account of any person, vessel, or
paicfbv I'crsou g'otids, under quarantine regulations, shall be paid by such person or the
or owner. owucr of such vessel or sroods resijectively.
K. S. 21, §34. ^ '
Towns may
make further
provision !br
vaccination.
R. S. 21, §45.
may establisli
a quarantine
ground.
K. S. 21, § 2?.
two or more
towns may es-
tablish a com-
mon quarantine
ground.
R. S. 21, §28.
Board of health
may estalilish
quarantine of
vessels.
K. S. 21, § 20.
Quarantine reg-
ulations to ex-
tend to all, &LC.
E. S. 21, §:tO.
Penalty for vio-
lation after no-
tice.
E. S. 21, §31.
Vessels sus-
pected of iufoc-
tion to be order-
ed to quaran-
tine.
E. S. 21, §32.
Penalty, if mas-
ter, seaman,A.-c.,
refuse to an-
swer on oath,
&c.
E. S. 21, §33.
Hospitals may
be provided by
towns.
R. S. 21, §35.
to be under
hospitals and dangerous diseases.
Sect. 40. Any town may establish within its limits, and be con-
stantly provided with, one or more hospitals for the reception of persons
having a disease dangerous to the public health.
Sect. 41. Such hospitals shall be subject to the orders and regula-
Chap. 26.] public health — hospitals. 193
tions of the board, or of a committee of the to^vii iijijiointed for that orders of board
liiinin<;p oriiealth.
piupose. ^ ... K. s. ai,§36.
Sect. 42. No such hospital shall be established within one hundred Hospitals not
rods of an inhabited dwelling-house situated in an adjoining town, with- ^^bewuiun,
out the consent of such town. k.S. 2i,§3r.
Sect. 43. When a hospital is so established, the physician, nurses, piiysidans,&c,
attendants, the persons sick therein, and all persons approaching or suhje^^^i't'oboard
coming within the limits of the same, and all furniture and other arti- oi laaitii.
cles used or brought there, shall be subject to such regulations as may ''•S-^'-S-"-
l)e made by the board of health or the comjiiittee appointed for that
jjurpose.
Sect. 44. When a disease dangerous to the public health breaks out Board of health
in any town, the board shall immediately provide such hosjiital or place p'jt.i™&c'.'rand^"
of reception for the sick and infected as is judged best for their accom- remove sick,
modation and the safety of the inhabitants; which shall be subject to fj^V, 244, § :;.
the regulations of the board; and the board may cause any sick and in- Jf^'^'cV,"'
tl'cted person to be removed thereto, unless the condition of such per-
son will not admit of his removal without danger to his health, in which
case the house or place wliere he remains shall be considered as a hos-
pital, and all persons residing in or in any way concerned within the
same shall be subject to the regulations of the board as before provided.
Sect. 45. When such disease is found to exist in a town, the select- Selectmen to
men and board of health shall use all possible care to prevent the spread- nlJceted' places
ing of the infection, and to give public notice of infected places to trav- u. s. 2i,§4i.
ellers, by displaying red flags at proper distances, and by all other means gee |oi.'
which in their judgment shall be most efl'ectual for the common safety.
Sect. 46. If a jdiysieian or other person in any of the hospitals or Penalty on per-
plaees of reception before mentioned, or who attends, ap[>roaches, or is taut &c.'°or'vi-
concerned with, the same, violates any of the regulations lawfully made oiating rcguia-
in relation thereto, either with respect to himselfj or his or any other k. s.;.'i,§t2.
person's jiropcrty, he shall for each ofience forfeit a sum not less than gp^ig^'
ten nor more than one hundred dollars.
Sect. 47. When a householder knows that a person within his fam- Householders
ily is taken sick of small-jiox or any other disease dangerous to the pub- dauierous'dfs"*^
lie health, he sliall immediately give notice thereof to the selectmen or case's.
board of health of the town in which he dwells. If he refiises or neg- k!s!2T,'§43.
lects to give such notice, he shall forfeit a sum not exceeding one hun-
dred dollai-s.
Sect. 48. When a physician knows that any person whom he is Penalty on phy-
ealled to visit is infected with small-pox or any other disease dangerous f,ivi'ifg'not"ice of
to the public health, he shall immediately give notice thereof to the Sangerous dis-
selectmen or board of health of the town ; and if he refuses or neglects ii'.'^s. 21, §«.
to give such notice, he shall forfeit for each ofience a sum not less than
fifty nor more than one hundred dollars.
Sect. 49. Expenses incuiTed by a town in the removal of nuisances Expenses rc-
or for the preservation of the public health, and which are recoverable d^viduau "how
of a private person or corporation by virtue of any provisions of law, jS^Si'sn
may be sued for and recovei'ed in an action of contract.
Sect. 50. Fines and forfeitures incun-ed under general laws, the Fines and for-
sjK'cial laws applicalile to a town, or the by-laws and regulations of a to'u'se'of to"-"*
town relating to health, shall inure to the use of such town. iwii, au,§r.
Sect. 51. The provisions of sections sixteen, seventeen, forty-four, Smaii-pox.
forty-five, and forty-six, shall not apply to small-pox. auf i^.'ii^'
OFFEXSIVE trades.
c- r.-. mi 1 1 1 n <i ■ • • . • i Board to assign
Sect. 51;. 1 he bo.ard shall irom time to time assign certain places places for exer-
for the exercising of any trade or employment which is a nuisance or JradlJi "a'nci'may
hiutful to the inhabitants, or dansrerous to the public health, or the ex- prohibit.
17 25
194
PUBLIC HEALTH — OFFENSIVE TRADES. [ChaP. 26.
U.S. 21, §47.
lh.55, :illl, §1.
See § 55.
Superior court
may, ou com-
plaiut, revoke
such assigu-
meut.
1!. S. 21,§48.
1SS9, 190.
Action for dam-
ages from nui-
sance.
U.S. 21, §49.
Orders of prohi-
bition, &c., to be
served on occu-
pant. If he re-
fuses to obey,
board may pre-
vent.
IVnaltv.
1855, 3'Jl, §2.
Appeal, by per-
son aggrieved.
Proceeaiugs.
1855, 391, §3.
1859, 190.
Trade not to be
exercised mean-
while.
1855, 391, §4.
Verdict of jury
may alter, &c.,
orcler ; to bo re-
turned for ac-
ceptance, &c.
1855, 391, § 5.
Costa, — how
and wlien as-
sessed; on
whom ; and to
wliat amount.
1855, 391, § 6.
Chapter ex-
tends to cities.
ercise of which is attended by noisome and injurious odors, or is other-
wise injurious to their estates, and may prohibit the exercise of the
same in places not so assigned ; the board may also forbid the ex-
ercise of such trade or employment within the limits of the town or
in any particular locality thereof. All such assignments shall be en-
tered in the records ; and may be revoked when the board shall think
proper.
Sect. 53. When it appears on a trial before the superior court for
the county, upon a complaint made by any person, that any place or
building so assigned has become a nuisance, by reason of offensive
smells or exhalations proceeding from the same, or is otherwise hurtful
or dangerous to the neighborhood or to travellers, the court may revoke
such assignment and prohibit the further use of such place or building
for the exercise of either of the aforesaid trades or employments, and
may cause such nuisance to be removed or prevented.
Sect. 54. A person injured either in his comfort or the enjoyment
of his estate by such nuisance, may have an action of tort for the dam-
age sustained thereby.
Sect. 55. Orders of prohibition under section fifty-two shall be
served upon the occupant or person having charge of the premises
where such trade or employment is exercised. If the party upon
whom such order is served, for twenty-four hours after such service
refuses or neglects to obey the same, the board shall take all neces-
sary measures to prevent such exercise ; and the person so refusing or
neglecting shall forfeit a sum not less than fifty nor more than five hun-
dred dollars.
Sect. 56. Any person aggrieved by such order may ajipeal there-
from, and shall within three days from the service thereof ujion him
apply to the superior court, if in session in the county where such order
is made, or in vacation to any justice of said court, for a jury; and such
court or justice shall issue a warrant for a jury, to be impanelled at a
time and ])lace expressed in the warrant, in the manner provided in
regard to the laying out of highways.
Sect. 57. During the pendency of the appeal such trade or employ-
ment shall not be exercised contrary to the order ; and upon any viola-
tion of the same the appeal shall forthwith be dismissed.
Sect. 58. The verdict of the jury, which may either alter the order,
or affirm or annul it in full, shall be returned to the court for accept-
ance as in case of highways ; and said verdict when accepted shall have
the authority and efl'ect of an original order from which no appeal had
been taken.
Sect. 59. If the order is affirmed by the verdict, the town shall
recover costs against the appellant ; if it is annulled, the appellant shall
recover damages and costs against the town ; and if it is altered, the
court may render such judgment as to costs as in their discretion may
seem just.
Sect. 60, The provisions of this chapter extend to cities so far as
the same are not inconsistent with their several charters or acts in
amendment thereo£
Chap. 27.] promotion of anatomical science.
195
CHAPTER 27.
OF THE PROMOTION OF ANATOMICAL SCIENCE.
Section
1. Overseers of the poor, &c., to permit
physicians to take dead bodies in certain
cases.
2. Physicians, &c., to give bond on receiving
a dead body.
Section
3. Persons ha\ing charge of poorhouse, Ac,
to give notice of death.
4. Dead bodies not to be given to physicians if
chtimed by friends, or if deceased requested
to be buried, &c.
Section 1. . The overseers of the poor of a town, the mayor and overseers of
aldermen of a city, and the insjjectors and superintendent of a state p?'"''.*'';'J''.
,, *',..^ *,. . give dead bod-
almshouse, may to any physician or surgeon, u])on Ins request, give per- fes to physi-
mission to take the bodies of such persons dying in such town, city, or "i™!™'*'^"'
ahushouse, as are required to be buried at tlie ]3ublic expense, to be by )i>*5, 242, § i.
him used within the state for the advancement of anatomical science; '^^'323, §i.
preference being given to medical schools established by law, for then-
use in the instruction of students.
Sect. 2. Every physician or surgeon, before receiving any such dead physicians, &c,
body, shall give to the board of officers surrendering the s;iine to him, a '"P^? bondou
sufficient bond that each body shall be used only for the ]iromotion of body. °
anatomical science within this state, and so as in no event to outrage I'S-as, §12.
the public feeling ; and that, after having been so used, the remains
thereof shall be decently buried.
Sect. 3. Persons having charge of a poorhouse, workhouse, or persons having
house of industry, in which a person required to be buried at the public charge of poor-
expense dies, shall forthwith give notice of such death to the overseers give notice of
of the poor of the town or to the m.ayor and aldermen of the city in
which such death occurs ; and except in case of necessitj^ the body of
such person shall not be buried until such notice is given, and permis-
sion therefor granted by such overseers or mayor and aldennen ; nor
without their permission shall the body be surrendered for dissection or
mutilation.
Sect. 4. If the deceased person during his last sickness, of his own whon dead
accord requested to be buried, or if, within twenty-four liours after his J'o b^yven°to
death, any person claiming to be and satisfying the proper authorities physicians, &c.
that he is a friend or of kindred to the decea.sed, asks to have the body !***''■ 2*2. § -•
buried, or if such deceased person was a stranger or traveller who sud-
denly died, the body shall not be so surrendered, but shall be buried.
3eath.
1»15, 2-12, § 1.
CHAPTER 28.
OF CEMETERIES AND BURIALS.
Section
1. Cemetery corporations may be organized.
2. Powers, duties, and liabilities.
3. Lots to be indivisible, but inheritable ; rep-
resentative of, how designated.
4. To^vns to provide burial places.
5. Private land not to be used for burial pur-
poses, except, &c.
C. Boards of health to make necessary regnila-
tions, &c.
Section
7. Boards of health to give notice of regula-
tions.
8. Notice to be given before closing tombs,
&c., by order of board.
9. Appeal from order of board.
10. to be tried by a jury. Costs.
11. Penalty for interments in violation of this
chapter.
12. for injury to tombs or cemeteries, &c.
Section 1. Ten or more persons desirous of procuring, establishing, Cemetery cor-
porations may
and preparing, a cemetery or burial place, or being the majority in inter- be organized.
196 CEMETERIES AND BURIALS. [ChAP. 28.
1S4I, 114, § 1. est of the proprietors of an existins; cemetery, may or£ranize as a corpo-
'''*'" ration in tlie manner provineil in chapter sixty-seven. Bnt m the case
of an existing cemetery, tlie coi"poration shall not make sale of nor im-
pair the right of any proprietor.
Powers, duties, Sect. 2. Sucli cor]ioration shall have the powers and privileges, and
i8-h'i'u'«'§'2" ^'^ subject to the duties, restrictions, and liabilities, of chapter sixty-
3,4. eirclit, and to tlie provisions of the first sixteen sections of ch.apter sixty-
' '^~ seven; may take and hold so much real and pei'sonal estate as may be
necessary for the objects of its organization, which shall be applied
exclusively to the furtherance of such objects ; may lay out such real
estate into lots, and upon such terms, conditions, and regulations, as
the corporation shall prescribe, may grant and convey the exclusive
right of burial in and of erecting tombs or cenotaphs upon any lot, and
of ornamenting the same.
Lots to be indi- Sect. 3. Lots ill such cemetery shall beheld indivisible, and upon
herKabie."'Rep- the decease of a proprietor, his heirs at law, or the devisees of such lot
resentntive of, if devised, shall succeed to liis privileges. If there is more than one
cd. " heii- or devisee, they shall within nine months from such decease desig-
1841, 114, § 5. nate in writing to the clerk of the corporation which of their number
shall represent the lot ; and on their iiiilure so to designate, the board
of trustees or directors of the corporation shall enter of reconl which of
said heirs or devisees shall represent the lot while such failure continues.
Burial places. Sect. 4. Each town and city shall pro^'ide one or more suitable
1.S55. 2or, § 1. places for the interment of persons dying within its limits.
private land Sect. 5. Exeejtt in the case of the erection or use of a tomb on pri-
fo°r, excep't!'&c. ^^^^ '''"^'^ ^'^^ the exclusive use of the family of the owner, no land, other
1S55, a57,§§ 2,3, than that already so used or a]ipropriated, shall be used for the purpose
of burial, unless by permission of the town or of the mayor and alder-
men of the city in which the same is situated.
Hoards of Sect. 6. Boards of health may make all regulations which they
re^iiVatioosT&c. jii^^g^ necessary concerning burial grounds and interments within their
K. s.3i,§7. respective limits; may prohibit the use of tombs by undertakers, (as
8 CuVh.'os. ' places of deposit for bodies committed to them for burial,) for the pur-
pose of speculation, and may establish jienalties not exceeding one hun-
dred dollars for any l)reach of such regulations,
to give notice Sect. 7. Notice of such regulations shall be given by publishing the
i/.".°2M si'*"' same in some newspaper of the town, or city, or, if there is no such
1S55, 257, § 0. newsjiaper, by ])Osting a copy in some public place therein ; which shall
be deemed legal notice to all persons.
Xoticetohe Sect. 8. Before a tomb, burial ground, or cemetery, is closed by
c/oshi» tombs order of the board of health, for a time longer than one month, all per-
&c., by order of SOUS interested shall have an opportunity to be heard, and personal no-
iss^si -hr, § 9. tice of the time and place of hearing shall be given to at least one
owner of the tomb, and to three at least, if so many there are, of the
proprietors of such burial ground or cemetery, and notice shall also be
published two successive weeks at least preceding such hearing, in two
newspapers, if so many there are, published in the county.
Appeal from Sect. 9. The owncr of a tomb aggrieved by the order of the board
i'865'^257'§'7!^'' ^^ health closing any tomb, burial ground, or cemetery, may appeal
1859, 198. therefrom, and at any time within six months from the date of the
order enter his appeal in the superior court ; and the appellant shall
give the bo.ard of health fourteen days' notice of his appeal previous to
the entry thereof But the order of the board shall remain in force
until a decision shall be had on the apjjcal.
to be tried by Sect. 10. Appeals shall be tried in regular course before a jury, and
mijiar^fr^."' '^the jury find that the tomb, burial ground, or cemetery, so closed, was
not a nuisance, nor injurious to the i)ublic health at the time of the
order, the court shall rescind the same so far as it aflects sucli toml),
buiial ground, or cemetery, and execution for costs of the appeal shall
Ch.\P. 29.] PUBLIC RECORDS. 197
issue in favor of the appellant against the town or city in which the
same was situated. But if the order is sustained, execution sliall issue for
double costs against the appellant in favor of the board of hcaltii for
the use of the town or city.
Sect. 11. For ever}- interment in viol.ation of section five in a town Ponnlty for vio-
or city in whidi the notice prescribed in section seven has been given, ci'.'.ptcr.'^*'''*
the owner of the land so used shall forfeit not less than twenty nor is55, 257, §4.
more than one hundred dollars.
Sect. 12. Whoever wrongtiilly destroys, impairs, injures, or removes, for injuring
a tomb, gi-avestone, building, fence, railing, or other thing, lawfully isJ'l'ii *§' e.
erected in or around a place of burial or cemetery, or a tree, shrub, or 1855, 257, §8.
plant, situate within its limits; or wrongfully injures a walk or path
therein, or places rubbish or (ifi'ensive matter within a place of burial or
cemetery, or commits any nuisance therein, or in any way desecrates or
disfigures the same, shall forfeit for every such ofl^'ence not less than five
nor more than one hundred dollars. Upon the trial of a prosecution for
the recovery of such penalty, use and occupation for the purposes of Proof oftitie.
burial shall be deemed sufficient evidence of title.
TITLE IX.
CHAPTER 29.
OF THE PUBLIC RECORDS.
Section
1. Linen paper to bo usfd for records. Amer-
ican manufacture to be preferred.
2. County commissioners, »S:c., to have records
bound and papers filed.
3. to provide (ire-proof rooms, &c., for rec-
ords, &c.
4. City governmentfi and selectmen to provide
fire-proof safe, &c.
5. Town may cause its records of grants, &c.,
Section
8. Transcripts compared and certified, ^c, to
have force of orij^iuals.
9. Records not to be removed, except, &c.
10. may be mspccted and copied. Clerks,
&c., to certify.
11. Town or city clerk to have custody of rec-
ords, Azc.y after dissolution of proprie-
tary.
12. of records of dissolved church or reli-
to be transcribed. pouB society.
6. or those of town from which set off.
7. Records becoming illet^ible, Ac, may be
transcribed j aud records of other places.
13. Penalties.
men jmper To
bo used lur rec-
Anicii-
Seotion 1. All matters of j^iiblic roconl in any office shall he en- T,i;
teiiMl or recordofl on pajier ma<le wholly of linen, of a firm texture,
WL'll sized, and well finislied ; and the clerks and registers of said offices cuu manutac-
shall o^ive a preference to linen paper of American or domestic manu- ("rn.,|'' *'^i"*'"
facture, if such paper is marked in water line with the word "linen," it. s. h, §ini.
and also with the name of the manufacturer.
Sect. 2. The county commissioners, city governments, and select- county com-
men, of the respective counties, cities, and towns, shall have all books u?i"^^\"e ivrl»V(ib'
of public record or reeristrv belonfrinir thereto substantially bound, and bmmd and im-
1 r^ i' o o ^ i' ' Hi'i's filed
other pnpers and doeuments within their respective departments duly isoi, i(ii,'§ i.
filed and arranged eotiveniently for examination and reference, and
shall also cause such of said pidjlic records as are left incomplete by any
clerk or register to be made up and completed by his successor from the
17*
198
PUBLIC RECORDS.
[Chap. 29.
f'ounty com-
luiHsiuners, &c.,
to provide fire-
proofrooms,
Ac, for records,
Ac.
K. S. 14, § ICM.
IrtSL, 101, §§1,2.
City govern-
ments and se-
leetmen to pro-
^ ide fire-proof
sale, &c.
j85r, 97, § 1.
Town may
cause its rec-
ords of grants,
.Sicto be tran-
scribed.
J83r, 8i, § 1.
or those of
town from
which set off.
ia57, 84, § 2.
Kecorda becom-
iuji: illegible,
.S:e., may be
transcribed ;
and records of
other places.
1851, 11)1, §§ 2, 0.
See §2.
Transcripts
compared and
certified, .tc.,to
have force of
originals.
Iti5l, 101, §2.
1IS57, >*4, §§ 1, 2.
See § 2.
Kecords not to
Iv removed, ex-
cept, &c.
l;. S. k:), § 22.
IM'.I, 202, § 1.
1851, 101, § 3.
1852, 10.
1850, 2.84, § 13.
See § 13.
may be in-
spected and
c^tpied. Clerks,
&c., to certify.
1851, 101, §§4, 6.
1857 84, § 3.
See § -J.
files and usual niemorancla as far as practicable, ami cei-tifieil and pre-
served in tlie same manner and with the same efl'ect as is provided for
other cases in sections seven, eight, and ten, of this eha])ter.
Sect. 3. The commissioners shall provide and maintain fire-proof
rooms with .suitable alcoves, cases, and boxes, for the safe keeping of all
records, files, papers, and documents, belonging to the several registries
of deeds ; and a suitable place for the safe keeping and preservation of
the other public records, and of valuable documents belonging to the
county, and for their particular security and preservation ; and such
records and documents shall be securely kept in the places so provided.
Sect. 4. City governments and selectmen shall provide at the ex-
pense of their respective cities and towns, fire-proof safes of ample size
for the preservation of books of record or registry, and other important
documents or papers belonging thereto ; and the clerk of each city and
town shall keep all such books, papers, and documents, in the safe so
provided, at all times except when they are wanted for use.
Sect. 5. A city or town may cause to be carefully transcribed such
of its records as relate to grants of lands, or the grants or divisions and
allotments of land made by the original proprietors of the township, or
to any easements, private rights, or ways, or any records of births and
marriages kept by such city or town, or by any parish within the same.
Sect. 6. A city or town whose territory in whole or in part has
been set off from any other city or town, may cause to be carefully
transcribed such records named in the preceding section as relate to
lands, easements, rights, or way.s, situated in the territory so set off.
Sect. 7. When the records of a county, city, or town, are becoming
worn, mutilated, or illegible, the county commissioners, city government,
or selectmen, shall have fair legible copies seasonably made ; and when
the interests of any county, city, or town, require, the county commis-
sioners, mayor and aldermen, selectmen, or overseers of the poor, may
have co]>ies of any records or parts of records, or of any papers or doc-
uments, in the legal custody of any other county, city, or town, so made
at the expense of their respectiAe counties, cities, or towns ; which
copies shall be certified by the register or clerk of the oftice where they
are taken to be true copies of the originals, and they shall be preserved
in like manner as the origin.al records, papers, and documents, of the
place for which they are made.
Sect. 8. A transcript made in pursuance of the provisions of the
preceding sections, and compared and certified under oath by the clerk
or register having the custody of the original to be a true copy, shall
have the same force and eftect when deposited among the records of the
place for which it is made as if the same were an original record, or an
original ])aper, or document, deposited there.
Sect. 9. Registers of deeds, registers of courts, and the registers
and clerks of courts, cities, and towns, shall keep all records and docu-
ments belonging to their offices in their sole custody, and shall in no
case, except upon summons in due form of law, or when the tem])oraiy
removal of records and documents in their custody is necessary or con-
venient for the transaction of the business of the courts or the perform-
ance of the duties of their respective oflices, cause or permit any record
or document to be removed or taken aw.ay.
Sect. 10. Under the direction of the officers having the custody of
the county, city, and town records and files, the same shall be open for
public inspection and ex.amination, and any person may take copies
thereof. And the several clerks and registers shall, on payment of a
reasonable fee therefor, com])are and certify, in the manner herein men-
tioned, all transciipts pro])erly and correctly made for any county, city,
or town, in pursuance of the provisions of this chapter.
Sect. 11. The legal custody of the books of record and other docu-
CeIAP. 30.] PARISHES AND RELIGIOUS SOCIETIES.
199
merits of the ^ancient proprietors of townships or of common lands, Town or city
when they have ceased to be a body corporate, shall, unless they have clf/tody of rec-
niade othoi- legal disposition thereof, be vested in the clerk of the city ords when, ic.
or town in which such lands or the larger jiortion of them are situated; is5r,'i6i, §5'.'
who, if such records and documents are in the possession of any other ^"^^5 13.
person, shall demand the same, and may make and certify copies thereof
in the same manner as the clerk of the proprietors might have done.
Sect. 12. When any church or religious society ceases to have a of records of
legal existence, and the care of its records and registries is not other- to exist""'*"'"
wise provided for by law, the person having possession of the same shall i.^si, i«i, § s.
deliver them to the clerk of the city or town in which such church or
society was situated, who may certify copies thereof.
Sect. 18. Every county, city, and town, for each month it neglects Penalties,
or refuses to peribrm any duty I'equircd by this chapter, shall forfeit 7, «.' •'' ' ■
twenty dollars ; a register or clerk who neglects or refuses to perform iss^s?.!*-
any duty re([mred of him shall forfeit for each offence ten dollars; who-
ever takes and carries away any book of record, paper, or written docu-
ment, belonging to the records or files of any county, city, or town,
except as is ])rovided in section nine, or defaces, alters, or mutilates, by
mark, erasure, cutting, or otherwise, any such record, paper, or written
document, shall forfeit a sum not exceeding fif\y dollars ; and whoever,
after demand made by the clerk of the city or town entitled by law to
have possession of the books of reeonl and other documents mentioned
in sections eleven and twelve, wrongfully detains the same, shall forfeit
fifty dollars.
TITLE X.
OF PARISHES AND RELIGIOUS SOCIETIES; AXD OF RELIGIOUS,
CHARITABLE, AND EDUCATIONAL FUNDS AND ASSOCLVTIONS.
Chapter 30. — Of Parishes and Religious Societies.
Chapter 31. — Of Donations and Conveyances for Pious and Charitable Uses.
Chapter 32. — Of Associations for Religious, Charitable, and Educational Pur-
poses.
Chapter 33. — Of Public Libraries.
CHAPTER 30.
OF PARISHES AND RELIGIOUS SOCIETIES.
Section
1. Religious Bocioties to he bodies corporate.
Powers of taxation conferred by ppecial act
not aifected. Existing rights of property
not impaired.
2. Rights, &c., of religious societies.
3. Churches to have accustomed privileges,
&c.
4. Societies may organize themselves, &c.
Powers, &c. Subject to revocation.
5. First meeting to be called by justice's war-
Section
rant. Contents of warrant and proceed-
ings thereon.
6. Membership of religious societies to be
voluntary.
7. Societies may regulate admissions by by-
laws.
8. Members alone may vote.
9. Annual meeting iu March or April, or at
times prescribed by by-laws, &c. Choice
of officers.
200
PARISHES AND RELIGIOUS SOCIETIES. [ChAP. 30.
Section
10. Moderator, Ac, elected by ballot. Clerks,
&c., to be sworn. Other cleetionB.
11. Prudential affairs, by whom managed.
12. If assessors refuse, &c., a justice of the
peace may call, &c.
13. Warrant to contain matters desired by five
or more voters. Action on matters not in
warrant void.
14. Meetings, how warned.
15. Who to preside till moderator is chosen.
Choice of clerk. Officers, how sworn.
16. Moderator's powers, &c. Penalties for dis-
orderly conduct.
17. Collector to be sworn. If not present, to be
summoned. Upon refusal or neglect, new
election.
18. Vacancies in offices, how filled.
19. Officers of Protestant Episcopal Societies.
20. Objects for which a society may raise
money.
21. Taxes to be assessed on property.
22. Corporations not to be taxed, nor trus-
tees, &c.
23. Societies may appoint treasurers collect-
ors, who shall have power of town collect-
ors ; may abate upon prompt payment.
24. Unincorporated societies may hold, &c., do-
nations.
25. Trustees may be appointed; term of office,
regulations for their government.
26. " Religious society," &c., includes parish.
2r, Proprietors of churches, &c.,may organize
and have corporate powers.
28. Amount of estate which may be held.
Section
29. Clerk to leave copy o& record of organizar
tion with town clerk, &c., or organization
to be void.
30. Proprietors of churches, &c., may assess
for alterations, repairs, &c.
31. How proprietors' meetings may be called.
32. Assessment and collection of money.
33. Notice when pews are sold by treasurer.
34. Affidavit of notice of sales made evidence.
35. Proprietors may take down pews to alter
churches, &c. Proceedings in such case.
.30. Parishes and societies may tiike down pews
or sell their house.
37. No compensation when church is unfit for
use.
3S. Pews personal estate. Dower, &c.
39. Pews in churches erected since March 25,
1&J5, may be assessed for support of public
worship.
40. and in churches erected before that time,
by consent or vote of two-thirds.
41. Pews to be purchased in such case at an
appraisal.
42. Societies complying with preceding sec-
tions to have powers, &c.
43. Trustees of Methodist Episcopal Societies
may organize and become corporations.
44. Powers of trustees. Annual income not to
exceed §4000.
45. First meeting, how called. Organization.
Secretary to be sworn.
46. Copy of record of organization to be left
with town clerk, or organization to be
void.
Religious socie-
ties to be bodies
corporate.
existing pow-
ers not affected.
R. S.20, §§1,19.
21.
rights, &c.,
of.
R. S. 20,§2.
Churches to
have privileges,
&c.
K. S. 20, §3.
]ii Mass. 4S8.
10 Pick. 172.
5 Cush. 412.
Societies not in-
corporated may
organize, &c.
powers may
be revoked.
K. S. 20, §§ 20,
29.
G Met. 448.
First meeting,
&c., how called.
R. S. 20, §§27,
28.
6 Met. 448.
See §§ 13, 31.
Section 1. Every religious society established or organized by vir-
tue of any statute shall be and continue a body corporate with the pow-
ers given to corporations by chapter sixty-eight, and the jiowers, juivi-
leges, liabilities, and duties, set forth in this chapter; but this chapter
shall not enlarge nor diminish the powers of taxation enjoyed by any
religious society by virtue of a special law or act of incorporation, nor
impair existing rights of property of any territorial parisli.
Sect. 2. Religious societies, whether corporate or unincoiporate,
shall continue to have and enjoy their existing rights, jtrivik'ges, and
immunities, except so far as the same may be limited or modified by the
provisions of this chapter.
Sect. 3. The respective churches connected and associated in pubhc
worship with such religious societies shall continue to have, exercise,
and enjoy, all their accustomed privileges and liberties respecting divine
worship, church order, and discipline, and shall be encouraged in the
peaceable and regular enjoyment and practice thereof.
Sect. 4. A religious society that is not incoiporated, or which imiy
be unable to assemble in the usual manner, if it contains ten or more
qualified voters, may organize and become a corporation with the pow-
ers, privileges, duties, liabilities, and requirements of such societies, and
may hold so much estate, real or personal, as may be necessary for the
objects of such organization, and no more; but all the powers derived
from such organization may be revoked by the legislature.
Sect. 5. Any justice of the peace for the county in which such soci-
ety may be, upon ap]»lication in writing by five or more of the qualified
voters thereof, may issue his warrant directed to some one of the appli-
cants, stating the objects, and requiring him to waiTi the qualified voters
of the society to meet at a time and place appointed in the warrant ;
and the same may be seiwed by posting an attested copy thereof on the
principal outer door of the meeting-house, or leaving such copy with or
at the last and usual place of abode of such voters, seven days at least
Chap. 30.] parishes and religious societies. 201
before such meeting ; and, upon due return thereof, the same justice or
any other justice of the peace for the county mny preside at the meeting
for the clidice ;mil qualification of a clerk, who shall enter at large ujion
the records of the society the proceedings had in the organization
thereof; and the society may thereupon proceed to choose a moderator
and do such otlier things as parishes are by law authorized to do at
their annual meetings : provided the subject matter thereof is inserted
in the warrant.
Sect. 6. Persons belonging to a religious society shall be held to be Membersiiip.
members until they file with the clerk a written notice declaring the f/fiagg'l^y
dissolution of their membership, and they shall not be hable for any sPick. -Jos. '
grant or contract thereafter made or entered into by such society. No 2^ ^v\aL. lis'.
person shall be made a member of such society without his consent in ^Met.rs.
writmg.
Sect. 7. Every religious society may make by-laws not repugnant Societies may
to the laws of the commonwealth, and therein prescribe the manner in s^^'.^g"*" '"'™'"
■which persons may become members. u.s.ao, §5.
Sect. 8. No person shall have a right to vote in the affairs of such wiio may vote,
society unless he is a member thereof ^- ^- 2"' S"-
Sect. 9. The qualified voters of every parish and incorporated reli- Annnai meet-
gious society, and of every society organized according to the ])rovisions o'Jgcers'""'^ "'^
of this chapter, shall hold an annual meeting in the month of March or k.s. 20, §7.
April, or at such other time as they may prescribe by their by-laws, and i*cu6h. ilo.'
if the by-laws do not otherwise determine at a time and j)lace a]i]iointed
by their assessors or standing committee; and at such meeting shall
choose a moderator, clerk, two or more assessors, a treasurer and col-
lector, and such other officers as they think necessary, all of whom,
except tVie moderator, shall continue in office till the next annual meet-
ing and till others are chosen and qualified in their stead.
Sect. 10. JMoilerators of meetings held for the choice of officers Moderator,
shall be elected by written ballots. Clerks, assessors, treasurers, and dlos'l'if &cl'°''
collectors, shall be elected by written ballot and shall be sworn. Other i';„s. 2(i, § r.
officers may be elected in such mode as the society may determine. I'cush'.'Hg.
Sect. 11. The prudential affairs of such societies shall be managed PiBdcntiui af-
by their assessors or a standing committee specially ajijiointed for that Inlma.^Jti"''"""
puqiose ; and the assessors or committees shall have like authority for u-s.-io, §14.
calling meetings as selectmen have for calling town meetings.
Sect. 12. If there are no assesssors or committee, or if they unrea- wiien justice
sonably refuse to call a meeting, any justice of the peace for the county, |";7 """ ""^'^*'
upon the application of not less than five qualified voters, may call one uTs. 20, §17.
m the manner provided m .section five. d jict. 448.
Sect. 13. The assessors or committee shall insert in the next war- "^ ?,''^'*; ■*'•
rant they issue for calling a meeting any matter which not less than five Wiirrant, wliat
qualified voters of the society in writing request. Nothing acted ujion to lont.ijn, &c.
shall have any legal operation, unless the subject matter thereof was ti'i-rjk.'w*
inserted in the warrant.
Sect. 14. Meetings shall be warned in the manner provided by any Meetings, how
by-law or vote of the society, and when no provision is made, in such i;'.'s!'ao, §s.
manner as the assessors or standing committee in their warrant for such '• t^reeni. 4a6.
meeting direct.
Sect. 15.
ors or tlie standiii
choice of a moderator; and a clerk may then be chosen, either pro j."'^™;,,
tempore or to till the vacancy, as the case may require. The moderator 5 MnVB.'4J7.'
may administer the oath of office to the clerk; and the clerk to the '' '^'■eeni. 448.
assessors and collector; or said oaths may be administered by a justice
of the peace; and they sh.all be substantiallj- the same as are required
to be taken by the clerk, assessors, and collectors, of towns. Modprator's
Sect. 1G. The moderator shall have the same power as the inodera- ijowers, &c.
20
The clerk, or if there is no clerk or he is .absent, the assess- who to preside,
mding committee, or any one of them, shall preside in the officcrs.'how
202
PARISHES AND RELIGIOUS SOCIETIES. [ChAP. 30.
Disorderly con-
duct.
R. S. 20, §11.
l(j Mass. 3^.
Collector.
R. S. 20, §§ 12,
13.
Vacancips in of-
fices, liow filled.
R. S. 20, § 15.
Officers of Trot-
eatiint Episco-
pal Societies.
185S, 116.
Objects for
wliicti a society
may raise
money.
H. S. 20, § 18.
1 Mass. 181.
5 Mass. 54?.
10 Picll. 500.
5 Met. "3.
8 Cush. 20?.
Taxes to be as-
sessed on prop-
erty.
R. S. 20, §30.
1 Cush. U9.
Corporations,
&c.,not to be
taxed, &c.
R. S. 20, § 20.
1848, 1(H, § 1.
Societies may
appoint treasu-
rers collectors.
may abate
upon prompt
payment.
R. S. 20, §§ M,
24.
Unincorporated
societies may
hold, &c., dona-
tions,
R. S. 20, § 25.
5 Met. \m.
a Met. IM.
tor of a town meeting ; and persons guilty of disorderly behavior at a
meeting shall be subject to the penalties and punishments provided for
like oflences in town meetings.
Sect. 17. If the person chosen collector is present and .Tceepts the
office, he shall forthwith be sworn. If not present, he shall be sum-
moned to take the oath by a constable or any person whom tlie clerk or
assessors may appoint for the purpose. Upon the refusal or neglect of
a person present to accept the ofhee at the time, and upon the neglect
of a person so summoned, for the space of seven days, to a]ipear and
take the oath, the society sh.all proceed to a new choice; and so from
time to time until some person accepts and is sworn.
Sect. 18. Vacancies in any of the annual offices, occurring after the
annual meeting, may be filled at any other legal meeting.
Sect. 19. The rector or one of the wardens of religions societies
belonging to the body of christians known as the Protestant Episcopal
Church, organized under the laws of the commonwealth, may, unless it
is otherwise provided in some by-law, preside at their meetings with all
the powers of a moderator; and the wardens or wardens and vestry
may exercise all the powers of a standing committee in accordance with
the usage and discipline of said church. Unless they assess or collect
a tax on the polls, estates, or pews, of the members tliereof, such soci-
eties need not choose a collector or assessors ; and they may in their
by-laws provide, that the duties of assessors shall be jjcrformed by the
wardens. But the officers upon whom the duties of standing committee
or assessors may devolve shall in all cases be elected by ballot.
Sect. 20. The qualified voters of each religious society, at the annual
meeting or at any other meeting regularly notified seven days at least
before the holding thereof, may grant and vote such sums of money as
they judge necessary for the settlement, maintenance, and support, of
ministers or public teachers of religion ; for the building or repairing of
houses of public worship ; for sacred music; for the purchase and pres-
ervation of burial grounds ; and for all other necessary ]iarish charges ;
which sums shall be assessed on the polls and estates of all the members
of the society, in the same manner and proportion as town taxes are by
law assessed.
Sect. 21. The assessors shall assess the taxes upon the property (not
exempted by law from taxation) of all the members of the society,
including their real estate within the state, in whatever part thereof it
may be situated, and their jiersonal estate wherever the same may be ;
and no citizen shall be liable to pay a tax for the sH]i]iort of ])ublic
worsliip or other parish charges, to a society other than that of which
he is a member.
Sect. 22. No corporation shall be taxed for any parochi.il puipose.
Nor shall any person be taxed in a parish or religious society for property
held by him as guardian or trustee.
Sect. 23. Every society may ajipoint its treasurer collector of taxes;
who shall have like powers and proceed in like manner, in enforcing the
collection of such taxes after the expiration of the time fixed by the
society for the payment thereof, as provided in chaj iter twelve for the
collection of taxes by collectors of towns ; and any society may authorize
its treasurer and collector to make an abatement of such sum as it may
agree upon at its annual meeting, to those who make voluntary payment
of their taxes within such periods as may be determined by the society.
Sect. 24. Unincorporated religious societies shall have like power
to manage, use, and employ, any (lonation, gift, or grant, made to them,
according to its terms and conditions, as incorporated societies have, by
law ; may elect suitable trustees, agents, or officers therefor ; and sue for
any right which may vest in them in consequence of such donation, gift,
or grant ; for which purposes they shall be corporations.
Chap. 30.] parishes and religious societies. 203
Sect. 25. Incorporated and unincorporated religious societies may Trnstpea may
a]ipoint trustees, not exceeding five in number, to hold and manage trust tt'^morofficc';
funds for their benefit, who shall hold tlieir offices five years and until rjj^iiintions for
others are appointed in their stead, with power to till vacancies for an mcnt."
unex]iired term occurring in their board. Such societies at or before "^•'' "*"' § '•
the time of the first ajipointment of the trustees may establish rules and
regulations for their government, which shall be considered as of the
nature of a contract, and not subject to alteration or amendment except
by all the trustees in office at the time and by a two-thirds vote of the
society interested therein.
Sect. 26. The terms "religious society" and "society" in the pre- " Religious so-
T 4.- 1 11 • 1 1 • 1 ciety,''&c., in-
eedmg sections shall include parishes. eludes parisii.
Sect. 27. Persons owning or jsroposing to build a house of public Proprietors of
worship may organize themselves in the same manner as religious m"yor"anizc'
societies are authorized to do by the provisions of this chapter; and ami h.ive cor-
shall thereupon become a corporation with the powers, privileges, duties, 'So' y'^§ i,"!
restrictions, and liabilities, set forth in chapter sixty-eight, and in the Seesau.
following sections ; but all the powers derived from such organization
may be revoked by the legislature.
Sect. 28. Every such corporation may hold so much real and per- Amount of cs-
sonal estate, in addition to its meeting-house, as maybe necessary for its be^i,^^^'''''' ""^
objects, and as has been agreed and determined on at the meeting held isio, oa|§3.
for the pur])ose of organization; and the annual income thereof shall be
applied to jiarochial purposes.
Sect. 29. The clerk of every such corporation shall, within ten days clerk to leave
of such meeting, leave with the clerk of tiie town or city in which su("h "-'ti^ tllivn^'"^''
house of worshi]) is situated, or is about to be built, a true copy of the ei>rk,&e.
record of the proceedings. If he fails so to do, the organization shall ' ''
be void. The copy shall be recorded by the clerk receiving it in a book
kept for the purpose, for which he shall receive the fee of the register
of deeds for like services.
Sect. 30. When the proprietors deem it expedient to alter, enlarge. Proprietors
repair, rebuild, or remove, their house, or build a new one, they may, at a "JJ'n at'iu™, r'^
legal meeting called for that purpose, raise such sums of money as tliej' ',j'''V''.*''j „,
may judge necessary for the purpose, and to purchase land necessary ' "
therefor.
Sect. 31. A meeting of the proprietors for any of the purposes How proprie-
aforesaid, may be called in the manner jirescribed in the by-laws or n°Jy "o'c'aiieif
votes of the con)oration, or by a warrant granted by a justice of the '';;''■ ""'J •''S-
peace on application in writing by any five of said proprietors, which acush^sos.
warrant shall be directed to one of the applicants ; or such meeting "
may be called by a notification by the clerk of the pro]irietors, who
shall warn a meeting on a like application to him ; and in either case
the meeting may be warned by notification served as provided in
section five.
Sect. 32. Money raised may be assessed on the pews in such house, Assessment
and the assessment may be committed to the treasurer of the proprie- "" money*!*'*'"
tors, who shall forthwith give notice by posting up an advertisement at k. .s. 20, § 32.
the iM'inci])al outer door of the house, stating the completion of such
assessment and the day of delivery thereof to him ; and if any part of
said taxes remains unpaid for three months afterwards, the treasurer
shall collect the same forthwith l)y sales at public auction of the pews
whereon the same remains unpaitl, in the manner provided in the fol-
lowing sections.
Sect. 33. The treasurer .shall jiost u)> a notification of the intended Notieewhen
sale of a pew for taxes at the jirincijial outer door of such house, at by'treasurer.*'
least three weeks before the time of sale, setting forth the number of i'- S- 20. §33.
the pew, if any, the n.ame of the owner or occupant, if known, and the '"'' *
amount of the tax due thereon ; and if any part of said tax remains uu-
204
PARISHES AND RELIGIOUS SOCIETIES.
[Chap. 30.
Affidavit of no-
tice of sales
Diadeeviiieuce.
K. S. 20, § 31.
Proprietors
may tjike do\vii
pews to alter
churches, &c.
Proceedings in
such case.
K. S. 20, § W.
i N. Hamp. U.
180.
Parishes, <Sic.,
may sell house,
&c.
E. S. 20, § 37.
1853, 2511.
19 Pick. 31)1.
No compensa-
tion in case, &c.
K. S. 20, § 38.
17 Mass. 435.
1 Pick. 102.
3 Pick. 3«.
7 Pick. i:i.s.
9 Cush. 508.
Pews personal
estate, &c.
1855, 122, §§ 1, 2.
in certain
churches may
be assessed,
&c.
1W5, 213, § 1.
in other
churches, .tc.
1852,319, § 1. .
1854, 258, U.
1 Cush. 14'J.
to be pur-
chased in cer-
tain cases at au
appraisal.
1854, 258, § 2.
Societies com-
plyiu*r with
precediu;^ sec-
tions to have
powers, &c.
1854, 258, § 3.
Trustees of
Methodist
Episcopal socie-
ties may or^au-
paicl at the time, the treasurer shall .sell the pew at public auction to the
highest bidder, and shall execute and deliver to the ])urchaser a sufHeient
deed of conveyanee. The money arising from the sale, beyond the
taxes and incidental reasonable charges, shall be paid by the treasurer
to the former owner of the ]jew, or to his assigns.
Sect. 34. An affidavit annexed to an original notification or to a
copy thereof, made before a justice of the peace, and recorded on the
proprietors' records within gi.x months next after such sale, shall be
allowed as one mode of proof of the posting up of the notifications
herein before required.
Sect. 35. Such proprietors, for the purpose of building a new house,
or of altering, enlarging, re]3airing, rebuilding, or removing, their house
already built, may sell their house or take down any pews therein ; the
pews taken being first appraised by three or more disinterested persons
chosen by the projirietors for that jmrpose. The jiews newly erected
shall be sold by their treasurer at public auction to the highest bidder,
and deeds thereof given in like manner as when pews are sold for the
paj'inent of taxes. The money arising from such sale shall be applied,
so fir as may be necessary, to paying the a]ipraised value of the ]3ew8
taken down; and the deficiency, if any, shall be paid by the jiioprietors
of such house, within thirty days after the sale.
Sect. 36. Under the regulations of the preceding section, a parish
or religious society, whenever it deems it necessary for the jniqiose of
building a new house or of altering, enlarging, removing, or rebuilding,
its house already built, may take down any pews therein or sell the house.
Sect. 37. Nothing contained in the two preceding sections shall en-
title a person to compensation for a pew so taken down, when such house
is unfit for the purposes of public worship.
Sect. 38. Pews shall be personal estate. But this provision shall
not affect any existing right of dower.
Sect. 39. Corporations for religious purposes may assess upon the pews
in a church or meeting-house which they have erected or ])rocured for
public worship since the twenty-fifth day of March eighteen hundred
and forty-five, according to a valuation of said pews which shall first be
agreed upon and recorded by the clerk, sums of money for the sujiport
of i)ublic worshij) and other parochial charges, and lor the rejiairs of the
house. Such assessments may be collected in the manner jnovided in
sections thirty-two and thirty-three.
Sect. 40. A corporation which had erected or procured such house
prior to the twenty-fifth day of March, eighteen hundred and tbrty-five,
may avail itself of the provisions of the preceding section, if the con-
sent of all the pew owners is obtained, or two-thirds of the members
present and voting at a regular meeting called for that purpose so
determine.
Sect. 41. A religious society which votes to avail itself of the
provisions of section thirty-nine, shall, upon the application of a
person owning one or more ]iews in its house, within one year after said
vote, ])urchase the same at the a]i])raised value. Such ap])raisal shall be
made by three disinterested persons who may be chosen, one by the
jK'w owner, one by the society, and the third by the two jiersous thus
chosen.
Sect. 42. Any religious society compljing with the requisitions of
the two ]ireceding sections, shall be entitled to the iirivileges and sub-
ject to the liabilities incident to those religious societies whicli have
erected or procured a meeting-house for])ul)lic worshi]i since the twenty-
fifth day of March in the year eighteen hundred and forty-five.
Sect. 43. The trustees of any society of the Methodist E]nscopal
Church, or of the African MethodLst Episcopal Church, appointed ac-
cording to the discipline or usages thereof respectively or as such
Chap. 31.] donations for pious and charitable uses. 205
society chooses, may organize and become a corporation with power.^, i2c> and become
pri\'ileges, duties, and liabilities, of chapter sixty-eight, subject how- ™'','"S,'"§T.'
ever to account to the quarterly meeting of such society according to '^;^,"' ^^ §i-
such discipline and usages. But all jjowers derived from such organi-
zation may be revoked by the legislature.
Sei't. 44. Such trustees may receive, hold, and manage, all the prop- Powers of trus-
erty, both real and personal, belonging to such society, and sell and ^'','n„^i j„come
convey the same, and hold in trust gift.s, grants, bequests, or don.ations, not to exceed
maile to such society for the support of jjublic worship and other reh- is4-, iso, § 2.
gious purposes: provided, that the annual income thereof, exclusive of i»". «. Ja-
the meeting-house, shall not exceed four tl)ousand dollars.
Sect. 4o. Tlie first meeting of such trustees may be called by a First meetinp-,
justice of the peace upon the application of three or more of the trus- Ilaniziit'ion.'
tees ; at which they may choose a secretary and other officers. The Seuietury to be
provisions of this chapter in relation to the warning and organization of i^'^aio, §3.
meetings of religious societies shall, so far as the same are a]i]>]icable,
be in force in regard to meetings for the organization of such trustees.
The secretary, before entering upon the duties of his offict', shall be
sworn to the faitliful discharge of the same, and a record of such oath
shall be kept in the records of their proceedings.
Sect. 46. An attested copy of the record of the proceedings at such copy of record
organization shall be left with tlie town or city clerk, and recorded °/iti"town'*
witliin the time and in the manner prescribed in section twenty-nine. <iiik> or organ-
If the secretary omits to leave such copy within the time specified the "HA"^ ° "^
organization shall be void. !*''■> 280,§4.
CHAPTER 31.
OF DONATIONS AND CONVEYANCES FOR PIOUS AND CHARITABLE USES.
Section i Section
1. Deacons, church wardens, Ac, made bodies fi. Churches, except, &c., may appoint corn-
corporate to take donations. | mittees to settle with deacons.
2. When ministers, elders, &c., are joined in
such donation, they shall be joined iu the
body corporate. •
3. Ministers of all churches may take in suc-
cession any parsona^^o laud.
4. No conveyance of church land valid with-
out consent of church, &c.
5. Conveyance by minister to be valid only
during his miuistry, unless, &c.
7. Income of such bodies corporate limited.
8. Overseers of monthly mcetniys of Friends
or Quakers to hold lauds, &c., as a corpora-
tion. Income limited.
0. Trustees who hold funds gfiven to towns
for charitable, &c., purposes, to report to
selectmen.
10. Probate court may remove trustee.
Section 1. The deacons, church wardens, or other similar officers, of Deacons, &c.,
.all churches or religious societies, if citizens of this commonwealth, shall I''it|','l.c.°'''°'
be deemed bodies corporate, for the pui-j^ose of taking and holding in if s.ai, §39.
succession all grants and donations, whether of real or personal estate, ]■} Met!:isu.''
made either to them and their successors, or to their respective churches, J ^ush. ■»{.
or to the poor of their churches.
Sect. 2. When the ministers, elders, or vestry, of a church are, in the Ministers, &c.,
grants or donations mentioned in the preceding section, joined with such J" iw^joiued in'
deacons or church wardens as donees or grantees, such officers and their body corporate,
successors, together with the deacons or church wardens, shall be deemed la ji'et. 250. '
the corporation for the purposes of such grants and donations. * CnaU. 2si.
Sect. 3. The minister of every cluirch or religious society of what- Ministers may
ever denomination, if a citizen of this commonwealth, shall be capable 's^oii/Ae.'""^*"
of taking in succession any parson.ago land granted to the minister and k.s. 20, §41.
his successors, or to the use of the ministers, or granted by any words of ' "**' '
18
206
DONATIONS FOB PIOUS AND CHARITABLE USES. [ChAP. 31.
15 Mass. 4M.
0 Greeul. 305.
Conveyanco of
fiiurch Ijmds,
ivlieii not valid,
U. S. 20, § 4i.
by minister,
whou to be
valid.
K. S. 20, § 43.
:; iMass. bw.
14 Mass. 333.
Committeos to
settle with dea
cons.
K. S. 20, § +4.
y CusU. 1S3.
Income of snch
bodies corpo-
rate limited.
1!. S. 20, §45.
Overseers of
monthly meet-
iu;,^s of I'^rieuds
or Quakers, to
hold lauds, ^tc,
as a corpora-
tion.
Income limited.
K. S. 20, §40.
b Cash. 431.
Trustees who
hold funds ^'i\--
en to towns for
charitable, Ac,
purposes, to re-
port to select-
men.
l»o5, 302, § 1.
Probate court
may remove
trustee.
lS5o, 302, § 2.
like import ; and may prosecute and defend in all actions touching the
same.
Sect. 4. No conveyance of the lands of a church shall be effectual
to pass the same, if made by the deacons without the consent of the
church, or of a committee of the church a])])i)iiitt'(l for that puqiose, or
if made by the church wardens without the consent of the vesti y.
Sect. 5. No conveyance by a minister of lands held by him in suc-
cession, shall be valid any longer than he continues to be such minister,
unless such conveyance is made with the consent of the town, jiarish, or
religious society, of which he is minister, or unless he is the minister of
an episcopal church and makes the conveyance with the consent of the
vestry.
Sect. 6. The several churches, other than those of the episcopal
denomination, may choose committees for the purpose of settling the
accounts of the deacons and other church officers, and, if necessaiy, to
commence and prosecute suits in the name of the church against the
deacons or other officers touching the same.
Sect. 7. The income of such grant or donation made to or for the
use of a church, shall not exceed the sum of two thousand dollars a
year, exclusive of the income of any parsonage lands granted to or for
the use of the ministry.
Sect. 8. The overseers of each monthly meeting of the people called
Friends or Quakers shall be a body corporate for tlie purpose of taking
and holding in succession grants and donations of rc;il or personal estate
made to the use of such meeting, or to the use of any preparative meet-
ing belonging thereto ; and mav aliene or manage such estate according
to the terms and conditions of the grants and donations, and prosecute
and defend in any action touching the same: provi<kd, that the income
of the grants and donations to any one of such meetings for the uses
aforesaid shall not exceed the sum of five thousand dollars a year.
Sect. 9. All trustees, whether incorporated or not, who hold funds
given. or bequeathed to a city or town for any charitable, religious, or
educational purpose, shall make an annual exhibit of the condition of
such funds to the board of aldennen of the cit_y, or the selectmen of the
town, to which such funds have been given or bequeathed, and all trans-
actions by the trustees concerning such funds shall be open to insjicction
by the board of aldermen of the city, or selectmen of the town, to which
the returns are made.
Sect. 10. The probate court for the county in which the city or town
is situated to which funds have been given or bequeathed as aforesaiil, may
on the petition of five persons cite all parties interested to apjiear before
the court to answer all complaints which may then and there be made ;
and if a trustee has neglected or refused to render such annual exhibit,
or is incapable of discharging the trust reposed, or unsuitable to manage
the affairs of the same, the court may remove such trustee and supply
the vacancy.
Chap. 32,] associations fob religious and other purposes.
207
CHAPTER 32.
OF associatio><'s for religious, charitable, and educational
purposes.
Section
1. Seven or more porsone associating^ for reli-
gious, Ac, purposes, to be body corporate.
2. Purpose and location of corporation to be
speciHi-d in articles of association.
3. To have usual corporate powers, iic.
SECTIOlf
1. May hold estate not more than $100,000.
5. Kstate not exempt from taxation where
dividends are made, or estate ia used for
other purposes.
Section 1. Seven or more persons within this state, having associ-
ateil themselves by agreement in writing for educational, charitable, or
religious pui-jioses, under any name by them assumed, and eompljing
with the provisions of this chapter, shall with their successoi-s be and
remain a body politic and coqwrate.
Sect. 2. The purpose of such coqioration and the place within
which it is establisheil or located shall be distinctly specified in its arti-
cles of association ; which articles, and all amendments thereto, shall be
recorded in the office of the register of deeds for the county or district
wherein such place is situated ; and such corporation shall appropriate
its funds to no other purpose.
Sect. 3. Corporations organized under this chapter shall have the
powers and privileges, and be subject to the duties, liabilities, and re-
strictions, set forth in chapter sixty-eight, so far as the same may be
applicable.
Sect. 4. Such corporations may hold real and personal estate neces-
sary for the purposes of their organization, to an amount not exceeding
one hundred thousand dollars.
Sect. 5. Their estate shall not be exempted from taxation in any
case where part of the income or profits of their business is divided
among membere or .stockholders, or where any portion of such estate is
used or appropriated for other than educational, charitable, or religious
purposes.
Seven or more
persoDB UM>-
fialin^, &c.,to
be body corpo-
rate.
l>SiT, 50, § 1.
Purpose and lo-
cation to be
t^pecified iu ar-
ticles.
Ittsr, 50, { 2.
To have usual
corporate pow-
ers, &c.
1857, 56, { 3.
3Iay hold es-
tate not over,
4c.
1857, 56, § 4.
Estate not ex-
empt from tax-
ation, where
used for other
purposes.
1857, 50, § 5.
CHAPTEE 33.
OF PUBLIC LIBRARIES.
LAW LTBBARIES.
SEcnox
1. Law librariea heretofore organized, to exist
under this chapter.
2. Attorneys may orgfanize a Law Library As-
sociation in any county where none exists.
3. First meeting-, how called.
4. Officers.
5. Inhabitants of county may use the books
under prescribed regulations.
6. County treasurer to disburse, not exceed-
ing, Ac, to enlarge such libraries.
7. Treasurer to give bond and make retam
under oath.
town asd citt lieeaetes.
Secttos
8. Towns and cities may establish libraries.
9. may appropriate money, and receive de-
vises, bequests, and donations, for that
purpose.
SOCIAL LIBBAP.IES.
10. Proprietors of library may constitute them-
selves a corporation, &c.
11. Warning meeting, choice of officers^ Ac
12. Treasurer to give bond.
13. Assesementa.
LAW LIBEAEIES.
Section 1. Law library associations heretofore organized in any Lawbtraries.
county except Suffolk, shall remain corporations m the same manner as J^; 157, $ i.
if organized under this chapter.
208
PUBLIC LIBRARIES.
[Chap. 83.
Law Library
Associations,
whore may be
organized.
1850, 184.
1859, 190.
FirBt meeting
how called.
1812, 94, § 2.
1850, 184.
1869, 190.
Officers.
1S42, 94, § 1.
Inhabitants of
connty may use
books, <S:o.
1842, 94, § 2.
Connty treas-
urer to pay, not
exceeding, <tc.,
for such libra-
ries.
1850, 71, § 1.
1859, 1/2.
Treasurer to
give bond, &c.
1S50, 71, § 2.
Sect. 2. The attorneys at l.iw admitted to practice in the courts of
tlie commonwealth and resident in a county for wliicli tlicre is no law
library association, may organize themselves by the name of the Law
Library Association for such county ; and when so organized shall be a
corporation for the purpose of holding and managing the law library
belonging to the county, and may adopt by-laws for that juirpose, sub-
ject to the .ajjproval of the justices of the superior court.
Sect. 3. The clerk of the courts in any county in which no associa-
tion has been organized, upon the application of seven attorneys at law
resident therein, may call a meeting for the purpose of such organization
by posting up notifications thereof in some convenient place in any
court-house of the county ; which meeting shall be holden during the
term of the superior court commencing next after ten days from the
time of posting up such notification. The clerk shall preside at such
meeting until a clerk of the association is chosen.
Sect. 4. The officers of such association shall be a clerk, treasurer,
and librarian, whose duties shall be defined by the by-laws.
Sect. 5. Every inhabitant of a county in which such association is
organized may use the books in the library, subject to such i-egulations
as may be prescribed by the association with the approval of the supe-
rior court.
Sect. 6. County treasurers shall annually, on the first day of .Tanu-
ary, pay to the county law library associations in their respective coun-
ties one-quarter part, not exceeding one thousand dollars, of all sums
which said treasurers have received fi-om the clerks of the courts during
tlie preceding year; and they may also pay such further sums, not ex-
ceeding the amount paid into the respective county treasuries by the
clerks of the courts, as the county commissioners deem necessary and
proper. All sums so paid shall be applied to maintain and enlarge such
libraries for the use of the courts and citizens.
Sect. 7. The treasurer of a law Ubrary association, before receiving
said money, shall give a bond with sureties to the satisfaction of the
commissioners for the faithful apjilication thereof, and that he will make
a return annually to them, under oath, of the manner iu which all such
applications are made.
Towns and cit-
ies may estab-
lish libraries.
1S51, ma, § 1.
may appro-
priate money
and receive de-
vises, &c., for
that purpose.
1851, 305, §§2,3.
1859, 25.
TOWN AND CITY LIBRARIES.
Sect. 8. Each town and city may establish and maintain a public
library therein, with or without branches, for the use of the inhabitants
thereof, and provide suitable rooms therefor, under such regul.itions for
its government as may from time to time be prescribed by the inhabit-
ants of the town, or the city council.
Sect. 9. Any town or city may appropriate money for suitable build-
ings or rooms, and for the foundation of such library a sum not exceed-
ing one dollar for each of its ratable polls in the year next ]»reeeding
that in which such appropriation is made; may also a]iiiroj)riate annu-
ally, for the maintenance and increase thereof, a sum not exceeding fifty
cents for each of its ratable polls in the year next preceding that in
which such appropriation is made, and may receive, hold, and manage,
any devise, bequest, or donation, for the estabUshment, increase, or
maintenance, of a public library within the same.
SOCIAL LIBRARIES.
Proprietors of Sect. 10. Seven or more proprietors of a library may form them-
(■'wporation ^c* ^^^^'^"^ i"to a coi-poration, Under such coi-}iorate name as they may adopt,
K.S.4I, §§i,'3,o. for the purpose of jirescrving, enlarging, and using, such library; with
the powers, privileges, duties, and liabilities, of corporations organized
Chap. 34.] state boakd of education. 209
according to the provisions of chapter sixty-eight, so far as the same
may be ap]jlicable, and may hold real and personal estate to au amount
not exceeding five thousand dollars in addition to the value of their
books.
Sect. 11. Upon application of five or more of such proprietors, a warning moct
justice of the peace may issue his warrant to one of them, directing him Ilfga^rsr&c."
to call a meeting of the proprietors, at the time and place and for the K- s. h, §5 1, 2.
purjiosos ex]3ressed in the warrant. The meeting shall be called by
])osting up the substance of the warrant in some public place in the
town where the Ubi-ary is kept, seven days at least before the time of
the meeting ; at which, if not less than seven of the proprietors meet,
they may choose a president, a clerk who shall be sworn, a librarian,
collector, treasurer, and such other oflicers as they may deem necessary ;
and maj- determine upon the mode of calling future meetings.
Sect. 12. The treasurer shall give bond with suflicient sureties, to Treasurer to
the satisfaction of the pro])rietors, for the faithful discharge of his duties. f;Js.''4'°'§'4.
Sect. 13. Such jn-oprietors may, by assessments on the several shares, Assessments,
raise such money as they judge necessary for the purposes of preserving, I'-s. 4i, §5.
enlarging, and using, the library.
TITLE XI.
OF PUBLIC mSTEUCTION AND REGULATIONS RESPECTING
CHILDREN.
Chapter 34. — Of the Board of Education.
Chapter 35. — Of Teachers' Institutes and Associations.
CH.1PTER 36. — Of the School Funds.
Ch-^pter 37. — Of State Scholarships.
ClLiPTER 38. — Of the Public Schools.
Chapter 39. — Of School Districts.
CH.iPTER 40. — Of School Registers and Returns.
Ch.\PTER 41. — Of the Attendance of Children in the Schools.
Chapter 42. — Of the Employment of Children and Regulations respecting them.
CHAPTER 34.
OF THE BOAIID OF EDUCATION.
Section
1. Board of education, how orgfanized; term
of office ; vacancies.
2. may take [jrante, devises, &c., in trust for
educational purposes ; to pay all moneys to
treasurer.
.3. shnll prescribe form of school registers,
and of blanks for returns ; transmit ab-
18* 27
Section
stracts of returns, and report, to legisla-
ture.
i. may appoint secretary, who shall make ab-
stracts, collect and diffuse ioformation, &c.
5. Secretary shall suggest improvements, visit
diiferent places, collect books, receive re-
ports, &c.
210
STATE BOARD OF EDUCATION.
[Chap. 34.
Section
C. Secretary nhall -^^ive notice and attend moet-
inj^s, and collect information, Ac.
7. shall send blank forms and reports to
clerks of towns and cities.
8. Conii)ensation of secretary, and expenses
of office.
Section
9. lioard may appoint agents to make in
qniry, &c.
10. Expenses of board, how paid.
U. Assistant state librarian may act as clerk.
Board of educa-
tion, how or-
ganized ; term
of members ;
vacancies.
183r, 241, § 1.
may take
grants, &c., in
trust for educa-
tional purpos-
es, .tl!.
Duty of treas-
urer.
1S50, 88.
shall pre-
scribe form of
school reg;isters
and blanks for
returns, &c.
ls:ir, 241, §?2, .1.
1S1.-I, 1115, §§5-r.
l.S4.i, 2-.'.i, § 3.
lS4i), 2U<).
may appoint
secretary, who
shall make ab-
stracts, &c.
18:ir, 241, § 2.
l»4r, is:i, § 1.
184S>, 215, § 1.
Secretary shall
suf^gest im-
provements,&c.
184i», 215, § 1.
1858, 61.
shall give no-
■ tice and attend
meetini^s, i&c.
lKi8, losi, § 1.
.1842, 42.
Section 1. The board of education shall consist of the governor and
lieutenant-governor, and eight persons appointed by the governor with
the .advice and consent of the council, each to hold office eight years
from the time of his appointment, one retiring each year in the order of
appointment ; and tlie governor, with the advice and consent of the
council, shall fill all vacancies in the board which may occur from death,
resignation, or otlierwise.
Sect. 2. The board may take and hold to it and its successors, in
trust for the commonwealth, any grant or devise of lands, and any
donation or bequest of money or otlier jiersonal property, made to it for
educational purposes; and sliall forthwith pay over to the treasurer of
the commonwealth, for safe keeping and investment, all money and
other personal i)roperty so received. The treasurer shall from time to
time invest all sucli money in the name of the commonwealth, and shall
pay to the board, on the warrant of the governor, the income or jirinci-
pal thereof, as it shall from time to time require ; but no disposition
shall be made of any devise, donation, or bequest, inconsistent with the
conditions or terms thereof. For the faithful management of all prop-
erty so received by the treasurer he shall be responsible upon his bond
to the commonwealth, as for other funds received by him in his official
capacity.
Sect. 3. The board shall prescribe the form of registers to be kept in
the schools, and the form of the blaiiks and inquiries for the returns to
be made by school committees ; shall annually on or before the third
Wednesday of January lay before the legislature an annual report con-
taining a printed abstract of said returns, and a detailed rejiort of all
the doings of the board, with such oliservations upon the condition and
efficiency of the system of popular education, and such suggestions as
to the mo.st practicable means of improving and extending it, as the
ex]ierience and reflection of the board dictate.
Skct. 4. The board may ajipoint its own secretary, who, under its
direction, shall make the abstract of school returns required by sec-
tion three; collect information res]iecting the cundition and efficien-
cy of tlie public schools and other means of po]iular education; and
difluse as widely as possible throughout the commonwealth information
of the best system of studies and method of instruction for the young,
that the best education which public schools can be made to impart
may be secured to all children who depend ujion them for instruction.
Sect. 5. The secretary sh.all suggest to the board and to the legis-
lature, improvements in the present system of jniblic schools ; visit, as
often as his other duties will permit, different parts of the common-
wealth for the purpose of arousing and guiding ]iublic sentiment in rela-
tion to the practical interests of education ; collect in his office such
school-books, apparatus, majis, and charts, as can be obtained without
expense to the commonwealth ; receive and arrange in his office the
reports and returns of the school committees ; and receive, jjreserve, or
distribute, the state docmnents in relation to the jniblic school system.
Sect. 6. lie sliall, under the direction of the boanl, give sufficient no-
tice of, and attend sucli meetings of teachers of public schools, members
of the school committees of the several towns, and friends of education
generally in any county, as may voluntarily assemble at the time and
place designated by the board ; ami shall at such meetings devote
himself to the object of collecting information of the condition of the
Chap. 35.] teachers' institutes and associations.
211
public schools of such county, of the fulfilment of the duties of their
office by members of the school committees of all the towns and cities,
anil of the circumstances of the several school districts in regard to
teachers, pupils, books, apparatus, and methods of education, to enable
him to furnish all information desired for the report of the board
required in section tjiree.
Sect. 7. He shall send the blank forms of inquiry, the school regis- Secretary sh.iii
ters, the annual report of the board, and his own annual report, to the roports^towu
clerks of the several towns and cities as soon as may be after they are ci.^rks, &c.
ready for distribution. _ '
Sect. 8. He shall receive from the treasury, in quarterly payments Compcns.ition
an annual salary of two thousand dollars, and liis necessary travelling a,ui™vp™Jc"s
expenses incurred in the performance of his otticial duties after they ot office,
have been audited and approved by the board ; and all postages and issaUo^
other necessary expenses arising in his otiice, shall be paid out of the
treasury in the same manner as those of the different departments of
the government.
Sect. 9. The board may appoint one or more suitable agents to visit Board may ap-
the several towns and cities for the purpose of inquiring into the condi- ^^^l ^Sq^iry!'
tion of the schools, conferring with teachers and committees, lecturing -^c.
upon subjects connected with education, and in general of giving and 2-1 ^ "' ''
receiving information upon subjects connected with education, in the
same manner as the secretary might do if he were present.
Sect. 10. The incidental expenses of the board, and the expenses of Expenses of
the members thereof incurred in the discharge of their official duties, pafjf' '"'"
shall be paid out of the treasury, their accounts being first audited and is-m, 55.
allowed.
Sect. 11. The assistant libi-arian of the state library shall act when clerk,
necessary as clerk of the board.
IM'J, 155, § 1.
CHAPTER 35.
OF TEACHERS' INSTITUTES AND ASSOCIATIONS.
Section Section*
1. Board of education to arrange for meeting 4. Wben meetings held, county associations
of teacliers' institutes. to receive S50 a year.
2. Expenses of. how paid. 5. To be paid on certilicate, &e.
3. Board to regulate length of session and ex-
pense.
Section 1. When the board of education is satisfied that fifty Teachers' insti-
teachers of public schools desire to unite in forming a teachers' institute, ^'es, mectmgs
it shall, by a coiuniittee of its body, or by its secretary, or in case of his isio, 99, § i.
inability by such person as it may delegate, appoint and give notice of ll^iJlca!
a time and place for such meeting, and make suitable arrangements
therefor.
Sect. 2. To defray the necessary expenses and charges, and procure expenses of,
teachers and lecturers for such institutes, the governor may draw his i)^o,99,'t§2,3.
warrant upon the treasurer for a sum not exceeding three thousand ino4, 300, §§ 3, 1.
dollars per annum, to be taken from th.at portion of the income of the 05^^"''''' '
school fund not apportioned for distribution to the several cities and
towns for the support of public schools.
Sect. 3. The board may determine the length of time during which length of, .•md
a teachers' institute shall remain in session, and what portion, not ex- i,$£^'^';'§ o.
ceeding three hundred and fifty dollars, of the sum provided for in the i*J9, 62.
preceding section shall be appropriated to meet the expenses of any
212
SCHOOL FUNDS.
[Chap. 36.
Wh-^n meoting:s
IiL'lrt, county us-
sociiitii'iis to re-
c<-ivc $.')■> a yeiir.
lS^.s, ai.ii, § 1.
To be paid on
certificate, &c.
1S46, 301, § 2.
such institute ; and the board, its secretary, or any person by it duly
apjjointed, may draw upon the treasurer tlierefor.
Sect. 4. When a county association of teachers and others holds
semi-annual meetings, of not less than two days each, for the express
purpose of promoting the interests of public schools, it shall receive fifty
dollars a year from the commonwealth.
Sect. 5. Upon the certificate under oath of the president .and secre-
tary of such association to the governor that two semi-annual meetings
have been held in accordtmee with the provisions of the preceding sec-
tion, he shall draw his warrant in favor of such association for the sum
aforesaid.
CHAPTER 36
OF THE SCHOOL FUNDS.
massachusetts school fund.
Section
1. Scliool fund, how invested. Income only
to be used.
2. Half the income to be distributed for sup-
port of common schools. Appropriations
for other educational purposes to be paid
from other half. Surplus to be added to
principal.
3. apportioned for schools by secretary and
treasurer. When towus arc not entitled to
share.
Section
4. Income received by towns to be applied for
support of schools therein.
5. Appropriations for Indians. Account to be
rendered.
INDIAN SCHOOL FUND.
6. Indian school fund, how applied, &c.
TODD NORMAL SCHOOL FUND.
7. Todd fund, how applied.
School fund,
];ow invested.
income only to
lie used.
i.-. S. 11, §§ 13,
H.
1.S54, 300, §§2,3,
lisi, 333.
Income, how
distributed.
1854, 300, §§ 2, 3.
1S58, 'J(j, § 2.
how appor-
tioned for
schools.
When towns
are not entitled
to share.
K. S.2.3, §§06,
67.
1846, 223, § 5.
1849, 117, §§ 2, 3.
MASSACnUSETTS SCHOOL FUND.
Section 1. The present school fund of this commonwealth, together
with such additions as may be made thereto, shall constitute a perma-
nent fund, to be invested by the treasurer with the approbation of the
governor and council, and called the "Massachusetts School Fund;"
the principal of which shall not be diminished, and the income of which,
including the interest on notes .and bonds taken for sales of Maine
lands and belonging to said fund, shall be approjniated as hereinafter
provided.
Sect. 2. One-half of the annual income of said fund shall be appor-
tioned and distributed for the support of ]>ublie schools without a specific
apjiropriation. All money ap]iro]iriated for other educational pur]wses,
unless otherwise provided by the act ajipropriating the same, shall be
paid from the other half of said income so long as it shall be sufficient
for that purpose. If insufficient, the excess of such a])propriations in
any year shall be paid from .any money in the treasury not otherwise
appropriated. If the income in any year exceeds such apjirojiriations
for the year, the surplus shall be added to the principal of said fund.
Sect. 3. The income of the school fund ap]iro])riated by the pre-
ceding section to the support of public schools, which may have accrued
upon the first day of June of each year, shall be ap]>ortioned by the
secretary and treasurer, and on the tenth day of July be paid over by
the treasurer to the treasurers of the several towns and cities for the
use of the public schools, according to the number of persons therein
between the ages of five .and fifteen years, ascertained and certified as
provided in sections three and four of chapter forty. But no such ap-
portionment shall be made to a town or city which has not com]ilied
with the ]irovisions of sections five and six of said chajiter, or which has
not r.xisod by ta.xatiou for the support of schools during the school year
embraced in the last annual returns, including only wages and board of
Chap. 37.]
STATE SCHOLARSHIPS.
213
teachers, fuel for the schools, and care of fires and school-rooms, a sum
not less than one dollar and fifty cents for each person between the
ages of five and fifteen years belonging to said town or city on the first
day of ^lay of said school year.
Sect. 4. The income of the school fund received by the several income re-
cities and towns shall be apj)lied by the school committees thereof to towns.'iKJw ap-
the support of the jiublic schools therein, but said committees may, if pUed-
they see fit, appropriate therefrom any sum, not exceeding twenty-five
per cent, of the same, to the purchase of books of reference, maps, and
apparatus for the use of said schools.
Sect. 5. On the first day of January annually, there shall be paid Appropriation*
out of the income of said school fund as follows, \iz. : One hundred '*"' '"diiius.
dollars to the treasurer of the Marshpee Indians, to be applied under renriercd."
his direction to the support of public schools among said Indians; one J^.iJS^"*'
hundred and sixty-five dollars to the selectmen of the district of Mar.-^h- isssi iNi;i§§i,3.
pee, under the ])rovisions of chapter thirty-five of the Resolves of the Resolves, isss,
year one thousand eight hundred and fifty-five; sixty dollars to the
trustee of the Gay Head Indians ; sixty dollars to the guardian of the
Indians of Christiantown and Chippeijuiddie ; and twenty dollars to the
treasurer of the Herring Pond Indians ; to be applied by them in like man-
ner to the support of public schools among said Indians ; and an annual
account of the a])jiropriatious of said money shall be rendered to the
governor and council.
INDIAN SCHOOL FUND.
Sect. 6. The income of the school ftmd for Indians, derived from Indian school
the surplus revenue of the United States, shall be paid annually in the [^"!j|', 'ife! "**"
month of March for public school purposes as follows, viz.: to the is37, so, §r.
treasurer of the district of Marsh]iee, sixty dollars ; to the guardian of
the Christiantown and Chippequiddic Indians, seventy-two dollars, one-
half thereof for the benefit of said Christiantown and Chi]ipecjuiddic
Indians, and the other half for the benefit of the Gay Head Indians ; and
to the treasurer of the Herring Pond Indians, eighteen dollars.
TODD XOKMAL SCHOOI, FUXD.
Sect. 7. The income of the Todd fund shall be paid by the treasurer Todd fund, how
of the commonwealth on the warrant of the governor to the board of ]^„"^'gg
education, to be l)y them applied to specific objects in connection with
the normal schools not provided for by legislative appropriation.
CHAPTER 37.
OF STATE SCHOLARSHIPS.
Section
1. Forty-^ig^bt Bcholarships established.
2. Arrangement of pections and classes for
ecbolarsbips. One scholarsbip to each sec-
tion every four years. Secretary of board
to notify school committees.
3. School committees to recommend candi-
dates. Qualifications of candidates. Va-
cancies, how filled.
4. Additional scholars. Character of scholars.
Section
5. Time and place of selection.
6. Place of education, how selected. Scholars
to receive $100 annually.
7. Vacancies, how filled.
8. Scholars attending- normal school, allow-
ance to.
9. Those receiving- aid, to teach or refund.
10. Appropriations.
Section" 1. To aid in qualifying principal teachers for the high scholarships
schools of the commonwealth, forty-eight state scholai-ships are estah- ""* "*'''^' ""'
lished.
established.
1853, 193, § 1.
!14
STATE SCHOLARSHIPS.
[Chap. 37.
Arrauofemont
i)f sectious and
classes for
tivjholarships.
1353, 193, § 2.
Candidates for
scholarships,
how rccom-
mouded.
Qualifications.
Vacancies, how
micd.
1S53, 193, § 3.
Additional
Hcholara.
Cliuracter of
candidates.
18o3, 193, § 4.
Time and place
of selection.
1853, 193, § 5.
Place of educa-
tion, how se-
lected.
Scholar to re-
ceive $100 annu-
ally.
1S03, 193, § 6.
Vacancies, how
tiUed.
1853, 193, § 7.
Scholar attend-
ing normal
Bcnool, allow-
ance to.
iS33, 193, § 8.
to teach, or
r'-fund.
1853. 193, § 9.
Sect. 2. Tlie sections .and classes of sections, and the order in wliicii
they .are entitled' to scholarships as now arranged by the board of
education, shall continue until the year eighteen hundreil and sixty-one,
at which time, and at the expiration of every ten years thereafter, the
board shall arrange the senatorial districts into four classes of ten sec-
tions each, and each of said classes shall, once in four years, in such
alternate order as the board, .at the time of the formation of the classes,
by lot designates, be entitled to one scholarship for each of its sections.
The secretary of the board shall througii the mail notify the school
committee of each town or city of the year its class is entitled to
scholarships.
Sect. 3. The school committees of the towns and cities in each
class, may in the year in which their class is entitled to schol;irsl]ii)S
recommend as candidates therefor, young men, inhabitants of their
town or city, who siiall furnish the board of education with the certiKed
opinion of said committee and of a competent teacher, that they will l)e
fitted f)r I'ollege at the succeeding commencement; and said board,
together with the senator if he resides within any section of such class,
shall select from such candidates one scholar from each section, whom
by personal examination they judge the most deserving and hkely to
become useful as a teacher. If any section presents no such suitable
candidate, the place may be filled by the board from the candidates
of the other sections of the same class, .and if from a deficiency of pro])er
candidates less than ten scholars are selected from a class, tlie boai-d
may, after a careful examination by themselves as to scholarshij), com-
plete the number from the state at large.
Skct. 4. If, after the selection of ten scholars from any class of sec-
tions, other candidates from such class recommended as aforesaid are
considered by the board as possessing the requisite qualifications, the
board may select therefrom two a<lditional scholars, and in default of
such candidates may select such additional scholars from the state at
large in the manner provided in the preceding section. All candidates
shall be jiersoiis of irreproachalile moral character, free from any con-
siderable defect of sight or hearing, and of good healtli and constitution.
Sect. 5. The selections for scliolarshi])s required to be made by the
board and by the senators within the respective sections, sliall be made at
a meeting lield annually at the otHce of the secretary of the board, at such
time in the month of ^March as the board appoints, of which the secretary
shall give notice. The selections to be made by the board iilone may
be made at the s.ame or at any other time during the year.
Sect. G. Any scholar so selected may be educated at any college
estabhshed by law in this commonwealth which lie and his friends may
select ; and the board shall ,at the end of each collegiate year, not
exceeding four, upon his jirodncing a certificate from the president of
his college that he has been faithful in his studies, exemplary in his
deportment, and ranks in scholarship among the first lialf of his class,
pay to him one hundred dollars.
Sect. 7. Selections to fill vacancies occurring in such scholarships
may be made by the board in like manner as original selections ; and
the board sli.all take all measures necessary for tliat purpose.
Sect. 8. Any such scholar after leaving college may attend a state
normal school, and for each term not exceeding two during which he
attends such school, he shall, upon producing a certificate of such attend-
ance and of the faithful and cxemplaiy performance of his duties there
from the princi])al master thereof, be paid by the board of education,
from any unexpended balance of the funds provided by section ten of
this chapter, tlie sum of twenty-five dollars.
Sect. 9. Every iierson who has received aid in tlie manner provided
by this chapter, shall teach in the public schools of the commonwealth
Chap. 38.]
PUBLIC SCHOOLS.
215
the same term of time that he has received such aid ; and \£, being in
competent health, he fails so to teacli, unless he satisfies the hoard that
such failure has arisen from inability to find employment, he shall pay to
the treasurer at the rate of cr.e hundreil dollars a year for the time of
such failure, with interest thereon from the time of graduation ; and the
treasurer may recover the amount in an action at law.
Sect. I'O. Forty-eight hundred doUai-s annually from the income of Appropria-
the school fund not appropriated to public schools, and all such sums as I'^s^'io), § lo.
the treasurer recovers under the preceding section, are aj>propriated to Set- § ».
accomi)lish the purposes of this chapter under the direction of the board
of education.
CHAPTER 38.
OF THE PUBLIC SCHOOLS.
PtTBUC SCHOOLS,
SEcnos
L Kiich town to have Bchool eix monthB in a
year. Hranehcs to be taught.
2. Hig^li gcliool in towns ol'live hundred faini-
Uc8. Branches taug^ht. Duration of school.
Towns of four thousand inhabitants.
3. High school districts in at^acent towns,
how established.
4. Committoe, how chosen. Powers.
5. to determine location of school- house.
0. Expenses apportioned.
7. Scliools may be maintained for those orer
fifteen years of a^'e.
8. under superintendence of school commit^
tec.
9. Female assistants.
10. I>uty of instructors in colleges, Ac
11. of ministers and town officers.
12. Towns to raise money for schools.
13. Funds of corporations for supporting
schools, not affected, &c.
14. Forfeiture for neglect to raise money, Ac.
15. threc-foorths of, to be appropriated to
schools.
16. School committee, how choseiL, K^omber;
term of service.
17. Vacancies, how filled.
18. When whole committee decline, new com-
mittee how elected.
19. Term of serrice of i>erson filling raoancy.
20. On election of new board, certain duties of
old to continue.
21. Committee, how increased or dimmished.
22. records of; secretary.
Section
ZJ. Committee to contract with teachers, un-
less, iiC.
24. Instructor to receive and file certificate.
When and how paid.
25. may bedismissed. Compensation to cease.
{ 2C. £x:uuinations and visits by committee.
I 27. Bible to be read in schools. Sectarian
books excluded.
28. Committee to direct what books to be used.
Change of books, how mad**, &c.
29. to procure books, apparatus, &c.
30. for certain scholars at cxiH-nse of town.
31. Expense of books so supplied to be taxed
to parents, Ac.
32. If parents unable to pay, tax may be omit-
ted.
33. Duty of committee where school is for ben-
efit of whole town.
34. Compensation of committee.
35. Superintendent of schools, appointment,
duties, Ac
SCHOOIy-HOUSES.
30. Towns not districted, to maintain school-
houses, Ac.
37. Location of school-houses.
38. Land may be taken lor school-house lots,
Ac.
39. Owner of land may have jury. I'roceed-
ings. Damages and costs.
■10. Conunittee of town not districted to have
charge of school houses.
41. Provisions of chapter to apply to cities, ex-
cept, Ao.
Section 1. In every town there shall he kept, for at least sixmonth.s
in each year, at the expense of said town, by a teacher or teachei-s of
competent ability and good morals, a sufficient number of schools for
the instruction of all the ehikiren who mav leirally attend public school
therein, in orthoorraphy, readine, Avritintr, Emrlish grammar, geography,
arithmetic, the history of the United States, ;md good behavior. Alge-
bra, vocal music, drawing, physiolog}-, and hygiene .shall be taught by
lectures or otherwise, in all the public schools in which the school
committee deem it expedient.
Sect. 2. Ever}* town may, and every town containing five hundred
families or householders shall, besides the schools prescribed in the pre-
ceding section, maintain a school to be kept by a master of competent
ability and good morals, who, in addition to the branches of learning
Each town to
havf 8chool six
iiionths in a
year.
iirinches
taught.
li. S. 2:j, § I.
IKTJ, r,c,, § 1.
lM.'iH,r>,$§1.2.
IhJV, 2<i3.
High schools in
towns of 500
faniilios.
Hr.-irx'hcs
taught.
216
PUBLIC SCHOOLS — HIGH SCHOOLS.
[Chap. 38.
Durution of
schoul.
Towns of 4000
iiihabitantH.
IJ. S. -SI, § 5.
1S57, 2(1.1, § 2.
11 Mass. HI.
11 Cush. 17S.
IIi'4h sdlciol
.:ihlii.-ts ill mI-
j^UTIll t.HVllS,
liuw establish-
ul.
1848, 279, § 1.
romniitfoo,
how choseu,
I'owcrs.
1«4», 279, § 2.
to (lotormiue
location of
school-house.
IS48, 2711, § 3.
Expenses ap-
portioned.
1«1B, 279, § 1.
Schools may be
niaiutained for
tliOHc over 15
years of jifj^e.
1»57, IS'J, § 1.
under super-
intendence of
committee.
l.V,7, IX'J, § 2.
Female assist-
ants.
1»31), 5(i, § 1.
Duty ofinstriic-
tors in coUc^^es,
.tc.
f'onstitution,
Ch. 5, ^ 2.
K. S. 23, § 7.
before mentioned, shall give instruction in general history, bookkeeping,
surveying, geometry, natural ]ihilosophy, chemistry, botany, the civil
polity of this commonwealth and of the United States, and the Latin
language. Such last mentioned school shall be kejit for the benefit of
all the inhabitants of the town, ten months at least, exclusive of vaca-
tions, in each year, and at such convenient place, or alternately at such
place-s, in the town, as the legal voters at their annual meeting determine.
And in every town containing four thousand inhabitants, the teacher
or teachers of the schools required by this section, shall, in addition
to the branches of instruction before required, be competent to give
instruction in the Greek and French languages, astronomy, geology,
rhetoric, logic, intellectual and moral science, and ])olitical economy.
Sect. 3. Two adjacent towns, having each hvss than five hundred
families or householders, may form one high school district, for estab-
lishing such a school as is contemplated in the ] (receding section, when
a majority of the legal voters of each town, in meetings called for that
purpose, so determine.
Sect. 4. The school committees of the two towns so united shall
elect one person from each of their respective boards, and the two so
elected shall form tlie committee for the management and control of
such school, with all the powers conferred upon school committees and
prudential committees.
Sect. 5. The committee thus formed shall determine the location of
the school-house autliorized to be built by the towns forming the district,
or if the towns do not determine to erect a house, shall authorize the
location of such school alternately in the two towns.
Sect. 6. In the erection of a school-house for tlie pennanent location
of such school, in the su])])ort and maintenance of the school, and in all
incidental expenses atteudiiig the same, the proportions to be paid by
each town, unless otherwise agreed upon, shall bo according to its pro-
portion of the county tax.
Sect. 7. Any town may establish and maintain, in addition to the
schools required by law to be maintained therein, schools for the educa-
tion of persons over fifteen years of .age ; may determine the term or
terms of time in each year, and the hours of the day or evening during
which said school shall be kcjit ; and a]ipropriate such sums of money
as may be necessary for the siqiport thereof
Sect. 8. When a school is so established, the school committee shall
have the same su|)erintendence over it as they have over other schools;
and shall determine what branches of learning may be taught therein.
Sect. 9. In every pul)lic school, having an average of fifty scholars,
the school district or town to which such school belongs shall employ
one or more female assistants, unless such district or town, at a meeting
called for the pur]iose, votes to dispense with such assistant.
Sect. 10. It shall be the duty of the president, professors and tutors
of the university at Cambridge and of the several colleges, of all pre-
ceptors .and teachers of academies, and of all other instructors of youth,
to exert their best endeavors to impress on the minds of children and
youth committed to their care and instruction, the principles of piety
and justice, and a sacred regard to truth ; love of their country, humanity,
and universal benevolence ; sobriety, industry, and frugality ; chastity,
moderation, and temperance ; and those other virtues which are the
ornament of human society and the basis u])on which a republican con-
stitution is founded; and it shall be the duty of such instructors to
endeavor to lead their ]uipils, as their ages and cajiacities will admit, into
a clear vinderstanding of the tendency of the above mentioned virtues,
to preserve and perfect a re])ublic.an constitution and secure the blessings
of liberty, as well as to promote their future ha])))iness, and also to point
out to them the evil tendency of the opposite vices.
Chap. 38.] public schools — committees. 217
Sect. 11. It shall be the duty of the resident ministers of the gospel, Duty ofminie-
the solectnien, and the school committees, to exert their influence and ofli'e""^ '"'""
use their best endeavors that the youth of their towns shall regularly k. s. 23, §8.
attend the schools established for their instruction.
Skit. 12. The several towns shall, at their annual meetings, or at a Tmms to raise
regular meeting called foy the purpose, raise such sums of money for the ™.",oo'is!"'^
su]>port of schools as they judge necessary ; which sums shall be assessed k. s. as, § 0.
and collected in like manner as other town taxes. " '"'■ "'" '
Sect. 13. Nothing contained in this chapter shall affect the right of School fundBof
any coqioration estai)lished in a town, to manage any estate or funds not''a"ifcctcdr&c
given or obtained for the purpose of supporting schools therein, or in E- s. a.;, §51).
any wise affect such estate or funds.
Sect. 14. A town which refuses or neglects to raise money for the Forfeiture for
support of schools as required by this chajiter, shall forfeit a sum equal "wney, &c™**
to twice the highest sum ever before voted for the sujiport of schools i^|-^Ȥ<*-
therein. A town which refuses or neglects to choose a school committee '
to superintend said schools, or to choose ])rudential committees in the
several districts, when it is the duty of the town to choose such pruden-
tial committee, sliall forfeit a sum not less than five hundred nor more
than one thousand dollars, to be paid into the treasury of the county.
Sect. 15. Three-fourths of any forfeiture paid into the treasury of three fourths
the county under the preceding section, shall be paid by the treasurer "o'sehool^"'
to the school committee, if any, otherwise to the selectmen of the town u-s. aa, §«i.
from which it is recovered, who shall ajiportion and ajipropriate the
same to the support of the schools of such town, in the same manner
as if it had been regularly raised l)y the town for that ))Ui-])ose.
Sect. 16. Every town shall, at the annual meeting, choose, by writ- School eommit^
ten ballots, a board of school committee, which shall have the general ^!^J;'"'"' '^'•°^™'
charge and su]ierintendence of all the public schools in town. Said 1:. s. 23, § 10.
board shall consist of any number of persons divisible by three, which iJso; ^mI ^^ '' ^'
said town has decided to elect, one-third thereof to be elected annually, ?■* i"''?^' .""-'
and continue in office three years. If a town fails or neglects to choose
euch committee, an election at a subsequent meeting shall be valid.
Sect. 17. If any person elected a member of the school committee, vacancies, how
after being duly notified of his election in the manner in which town Jj5'^''2g(; 55 j 2
officers are required to be notified, refuses or neglects to accept said
office, or if any member of the board declines further service, or, from
change of residence or otherwise, becomes unable to attend to the
duties of the board, the remaining members shall, in writing, give no-
tice of the fact to the selectmen of the town, or to the mayor and
aldermen of the city, and the two boards shall thereu]ion, at^er giving
public notice of at least one week, proceed to fill such vacancy ; and a
majority of the ballots of persons entitled to vote shall be necessary to
an election.
Sect. 18. If all the persons elected as members of the school com- When whole
mittee, after such notice of their election, refuse or neglect to accejit the I;iJue7nJw com-
office, or having accepted, afterwards decline further service, or become mittee how
unable to attend to the duties of the board, the selectmen or the mayor it!5r, aoG, §2
and aldermen shall, after giving like public notice, proceed by ballot to
elect a new board, and the votes of a majority of the entire board of
selectmen, or of the mayor and aldennen, shall be necessary to an
election.
Sect. 19. The term of ser\-ice of every member elected in pur- Term of sen-ice
suance of the provisions of the two preceding sections, shall end with vaSncy." °°
the municipal or official year in which he is chosen, and if the vacancy "^['j'jMij-
which he was elected to fill was for a longer period, it shall, at the first issoiio.'
annual election after the occurrence of the vacancy, be filled in the
manner prescribed for original elections of the school committee.
Sect. '20. All the members of the school conmiittee shall continue
19 28
218
PUBLIC SCHOOLS — TEACHERS, BOOKS. [ChaP. 38.
Oa electiou of
new board, cer-
tain (ititios of
olil to c'outiuue.
1840, 2i;:), § 1.
1857, 2()(j, § :!.
1857, 270. § 3.
Committoo,
how incivased
or diiuiuished.
18S7, a70, § 1.
records of;
Becretary.
1S38, 105, § 3.
to contract
witli teacliers,
unless, &c.
11. S, 23, § 13.
1838, 105, § a.
1S5'J, (iU.
Teachers to
receive and file
certilicate.
when and
how paid.
E. S. -Si, § U.
isao, 115.
1855, 120.
may be dis-
missed, &c.
18W, 32.
Examinations
and visits by
committee.
E. S. 23, §§ 15,
16.
Bible to be read
in scliools.
Sectari in liooka
excluded.
E. S. 23, 5 23.
1855, 410.
School books.
change of,
how made, &c.
E. S. 23, § 17.
1859. 93, §§ 2, 3.
in office for the ]iurpose of superintending the winter terms of the
several scliools, and of making and transmitting the certificate, returns,
and report of the committee, notwith.standing the election of any suc-
cessor at the annual meeting ; but for all other duties, the term of office
shall commence immediately after election.
Sect. 21. Any town may, at the annual meeting, vote to increase or
diminish the number of its school committee. Such increase shall be
made by adding one or more to eacli class, to hold office according to the
tenure of the class to which they are severally' chosen. Such diminu-
tion shall be made by choosing, annually, such number as will in three
years effect it, and a vote to diminish shall remain, iu force until the
diminution under it is accomplished.
Sect. 22. The school committee shall appoint a secretary and keep
a i)erinanent record book, in which all its votes, orders and jjroceedings
shall by him be recorded.
Sect. 23. The school committee, unless the town at its annual meet-
ing determines th.at the duty may be performed by the prudential com-
mittee, shall select and contract with the teachers of the public schools ;
shall require full and satisfactory evidence of the good moral character
of all instructors who maybe employed; and shall ascertain, by per-
sonal examination, their qualifications for teaching and capacity for the
government of schools.
Sect. 24. Every instructor of a town or district school shall, before
he opens such school, obtain from the school commit,tee a certificate in
duplicate of his qualification.s, one of which shall be deposited with the
selectmen before any payment is made to such instructor on account
of his services ; and upon so filing such certificate, the teacher of any
public school shall be entitled to receive, on demand, his w.-iges due at
the expiration of any quarter, or term longer or shorter than a quarter,
or upon the close of any single term of service, subject to the condition
specified in section thirteen of chapter forty.
Sect. 25. The school committee may dismiss from emijloyment any
teacher whenever they tliink proper, and such teacher shall receive no
compensation for services rendered after such dismissal.
Sect. 2C. The school committee, or some one or more of them, for
the purpose of making a careful examination of the schools, and of as-
certaining that the scholars are properly sujijjlied with books, shall visit
all the public schools in the town on some day during the first or
second week after the opening of such schools respectively, and also on
some d.ay during the two weeks preceding the closing of the same ; and
shall also for the same pur])oses vi.sit, without giving previous notice
thereof to the instructors, all the public schools in the town once a
month, and they shall, at such examinations, inquire into the regulation
and discipline of the schools, and the habits and proficiency of the
schol.ars therein.
Sect. 27. The school committee shall requiie the daily reading of
some portion of the Bible in the common English version ; but shall
never direct any school books calculated to favor the tenets of any par-
ticular sect of christians to be purchased or used in any of the town
schools.
Sect. 28. The school committee shall direct what books shall be
used in the public schools, and no change shall be made in said books
except by the unanimous consent of the whole lioard, unless the com-
mittee consists of more than nine, and questions relating to school
books are intrusted to a sub-committee. In tli.'it case, the consent of
two-thirds of the whole number of said sub-committee, with the concur-
rent vote of three-fourths of the whole board, shall be recpiisite for
such change. If any change is made, each pujiil then bclonginsj; to
the public schools, and requiring the substituted book, shall be fur-
Chap. 38.] public schools — school-houses. 219
nisliod with the s.ame, by the school committee, at the expense of said
town.
Sect. 29. The seliool committee shall procure, at the expense of the committee to
city or town, a sufficient suiiyily of text-books for the public schools, E!!"i"'''L'^^h
and iiive notice ot the ijhice where tliey may be obtained. Said books tus, &c.
shall hv furnished to tlie pujnls at sucli ]jrices as merely to reimburse iK,i'iViS,'§ i.
tlie exjiense of the same. The school committee may also procure, at is Pick. 229.
the expense of the city or town, such apparatus, books of reference,
and other means of illustration as they deem necessary for the schools
under their supervision, in accordance with appropriations therefor
jjreviously made.
Sect. 30. If any scholar is not furnished by his parent, master, or for certain
guardian, with the reciuisite books, he shall be supplied therewith by the pcnscoftown"
school committee at the expense of tlie town. k. s. 23, §20.
Sect. 31. The school committee shall giye notice in writing to the Expeneeof
assessors of the town of the names of the scholars su]i)ilied with books pikii'*to"bc'Sx-
uiider the proyisions of the preceding section, of the books so furnished, «! to parents,
the jirices thereol^ and the names of the parents, masters, or guardians, k.S. 23, §21.
who ouglit to haye supplied the same. The assessors shall add the
jjrice of the books to the next annual tax of such parents, masters, or
guardians ; and the amount so added shall be ley ied, collected, and paid
into the town treasury, in the same manner as the town taxes.
Sect. 3"2. If the assessors are of opinion that any pare-.it, master, or if parents una-
giiardian, is unable to ))ay the whole ex])ense of the books so supplied maybifomittcd.
on his account, they shall omit to add the price of such books, or shall K'S-23, §22.
add only a part thereof, to his annual tax, according to their ojiinion of
his ability to pay.
Sect. 33. In any town containing fiye hundred fomihes in which a Duty of 00m-
school is kept for the benefit of all the inhabitants as before provided, "'.j"',','i ll'fol'^
the school committee shall perform the like duties in relation to such iieueiu of whole
school, tlie house where it is kejst, and the sup])ly of all things necessary iCs.'-zi, § n.
therefor, as the prudential committee may perfonn in a school district.
Sect. 34. The members of the school committee shall be ])aid in compensation
cities one dollar, and in towns one dollar and a half^ each, a day, for i!.>""o5''§r'
the time they are actually em))loyed in discharging the duties of their i»ju! 103.'
office, together with such additional compensation as the town or city
may allow.
Sect. 35. Any town anntially by legal A-ote, and any city by an superintendent
ordinance of the city council, may require the school committee annu- "i ?ciiools, ap-
,, • . •' . 1 S I'l- , , , TIT ponitracnt, du-
ally to a])point a superintendent of public schools, who, uniler tlie direc- ties,&c.
tioii and control of said committee, shall have the care and su]H'ryision i»io'232 «8l "
of the schools, with such salary as the city government or town may
determine; and in every city in which such ordinance is in force, and
in every town in which such superintendent is appointed, the school
committee shall receive no compensation, unless otherwise provided by
such city goveniment or town.
SCHOOL-HOUSES.
Sect. 36. Every town not di^•ided into school districts shall provide Towns not dis-
and maintain a sufficient number of school-houses, pro]ierly furnished tVin'sciioor'™"
and conveniently located, for the accommodation of all the children houses, &c.
therein entitled to attend the public schools; and the school committee, iJijo.'^J.V?-'
unless tlie town otherwise direct, shall keep them in good order, pro- is59, 282, §§ 4, 5.
curing a suitable place for the schools, where there is no school-house,
and providing fuel and all other things necessary for the comfort of the
scholars therein, at the expense of the town.
Sect. 37. Any town, at a meeting leg:illy called for the purpose, may location of
dcteiinine the location of Its sclidnl-houses, and adopt all necessary sehooi-houses.
220
SCHOOL DISTRICTS.
[Chap. 39.
E.S.23, §§'-'s,:K'.
1851), 2o'.', § -i.
Land may bfta
ken for scliuol-
bouse lots, &c.
184K, ai?, § 1.
1855, 318, § 1.
2 Gray, 414.
Owner of land,
may have jury.
Procoediags.
Damages anj
costs.
1848, 2.37.
1851, 180.
1S55, 10.
2 Gray, 414.
Committee of
town not dis-
tricted, to have
char<ce of
Bchool-houses.
Provisions of
chapter to a|)-
ply to cities,
except, &e.
mefisures to imreliase or procure the land for the accommodation
thereof.
Sect. 38. When hind has been designated by a town, school district,
or those acting under its authority, or determined ujion by the select-
men as a suitable place for the erection of a school-liouse and necessary
buildings, or for enlarging a school-house lot, if the owner refuses to sell
the same, or demands therefor a ])iice deemed by the selectmen unrea-
sonable, they maj% with the a]iin-obation of the town, proceed to select,
at their discretion, and lay out, a school-house lot, or an enlargement
thereof, and to apjiraise the damages to the owner of such land in the
manner provided for laying out highways and appraising damages .sus-
tained thereby; and upon payment, or tender of |iayment, of the amount
of such damages, to the owner, by the town, the land shall be taken,
held, and used, tor the purpose aforesaid. But no lot so taken or en-
larged shall exceed, in the whole, eighty square rods, exclusive of the
land occupied by the school buildings.
Sept. 39. When the owner feels aggrieved by the laying out or en-
largement of such lot, or by the award of damages, he may, u])on appli-
cation therefor in writing to the county commissioners within one year
thereafter, have tlie matter of liis complaint tried by a jury, and the
jury may change the location of such lot or enlargement, and ,'issess
damages therefor. The proceedings shall in all respects be conducted
in the manner provided in eases of damages by laying out highways. If
the d.amages are increased, or the location changed, by the jujy, the
damages and all charges shall be paid by the town ; otherwise the
charges arising on such application shall be paid by such applicant.
The land so taken shall be lield and used for no other purpose than that
contemplated by this chapter, and shall revert to the owner, his heirs
or assigns, u]ion the discontinuance there, for one year, of such school
as is required by law to be kept by the town.
Sect. 40. The school committee of a town in which the school dis-
trict system has been abolished, or does not exist, shall have the general
charge and superintendence of the school-houses in said town, so far as
relates to the use to which the same may be appropriated.
Sect. 41. Except as may be otherwise provided in their respective
charters, or acts in amendment thereof, the provisions of this chapter, so
far as applicable, shall apply to cities. And the mayor and aldermen in
the several cities are authorized to execute the powers given in section
thuty-eight of this chapter to the selectmen and town.
CHAPTER 39.
OF SCHOOL DISTRICTS.
SCHOOL DISTRICTS.
Section
1,
Districts, how formed, when reorganized.
to be corporations for certain purposes.
may be abolished, &c.
towns to vote on abolition of.
eocretary to notify towns, &c., to insert
in warrant concerning-.
corporate powers of, to continue for cer-
tain purposes.
7. Prudential committee in each district. Du-
ties.
8. may be chosen by the districts.
9. to consist of three persons in certain
G.
10. vacancies in, how filled.
Section
11. Prudential committee, duties of, to be per-
formed by town committee, when, &c.
12. If district does not establish school, town
committee may, &c.
13. District meetings, selectmen, &c., may issue
warrants for.
H. manner of warning.
15. districts may prescribe mode of calling-,
16. Clerk to be chosen, and sworn, kuop rec-
ords, &c.
17. liable only for want of intcg^rity. Dis-
trict, when liable.
18. Districts may raise money for school-
houses i may fix site.
Chap. 39.] school districts — prudential coji.mittee.
221
ly. Towus may provide school-houses at the
cjmmun (.■xi)eii8e.
20. Sclc'L-tmuu to (Iftfrraiue site, in case, &c.
21. Ponsilty ou school district for not providiug
school-house.
22. Personal and real estate, where taxed.
23. Mimnfacturiuj^ corporations, where taxed.
24. Nou-rcsideuts, where taxed.
25. Same subject.
26. Scliool ta.xes assessed hke town ta.xes.
27. Assessors to issue warrants to collectors.
28. Money raisoii, to be at disposal of committees.
29. If district reluses to raise money, town
may order it.
30. If district uejjlects to organize, school com-
mittee may provide, .tc.
31. Collectors to proceed as in collecting town
taxes.
32. Treasurer to have like powers, &e.
3.3. Conipeusation of assessors, &c.
Zi. Abatement of taxes.
UNION DISTRICTS.
3o. Union districts, how formed, &c.
Section'
31). Krst meeting. Subsequent meetings. Lo-
cation of house.
3r. Clerk, how chosen, &c.
38. -\s8essmcnts, liow made.
39. Prudential committees, how constituted.
Powers and duties, ic.
40. Usual schools Diaiutilined,
41. School committees, powers and duties of.
CONTIGUOUS SCHOOL DISTRICTS IS ADJOIN-
ING TOWNS.
42. Contigjious districts in adjoining towns
may unite.
43. Union not formed without consent of dis-
tricts, &c.
44. United districts may be separated
45. meetings of, how called.
•H'k Prudential committee to be chosen, &c.
47. Money raised, to be in proportion, &c.
48. how assessed.
49. School committees of adjoining towns to
officiate in turns.
Section 1. Towns may jtroviile for the support of schools without
forming school districts; or may, at a meeting called for the purpose,
divi<le into such districts and determine the limits tliereof ; but shall not,
oftener than once in ten years from the second day of May, eighteen
hundred and forty-nine, be districted anew so as to change the taxation
of lands from one district to another having a different school-house.
Sect. "2. A school district shall be a body corporate so far as to pros-
ecute and defend in all actions relating to tlie property or affairs of the
district, and may take and hold, in fee simple or othei^wise, anj' estate
real or personal given to or pm'chased by the district for the support of
a school or schools therein.
Sect. 3. A town may, at any time, abolish the school districts
therein, and shall thereupon forthwith take possession of all the school-
houses, land, apparatus and other property owned and used for school
purposes, which such districts might lawfully sell and convey. The
property so taken shall be appraised under the direction of the town,
and at the ne.xt annual assessment thereafter, a tax shall be levied upon
the whole town, equal to the amount of said appraisal ; and there shall
be remitted to the tax payers of each district the said ajiprnised value
of its property thus taken. Or the difference in the value of the projierty
of the several districts may be adjusted in any other manner agreed
upon by the jjarties in interest.
Sect. 4. Every town divided into school districts shall, at the annual
meeting in the year eighteen hundred and sixty-three, and every third
year thereafter, vote upon the question of .abolishing such districts.
Sect. 5. The secretary of the commonwealth, on the recurrence of
a year when the vote thus required is to be had, shall .seasonably notify
thereof the selectmen of the .several towns, and require them, in towns
retaining the school district system, to insert an article in the warrant
for the annual meeting, for the purpose specified in the preceding sec-
tion; and the selectmen of any town who neglect to insert such article
in the warrant, when so required, shall forfeit twenty dollars.
Sect. 6. Upon the abolition or discontinuance of any district, its
corporate powers and liabilities shall continue and remain so tar as may
be necessary for the enforcement of its rights and duties; and the proji-
erty which it possessed at the time shall be subject to all legal process
ag.ainst it.
Sect. 7. Every town divided into school districts shall, at its annual
meeting, choose one person, resident in each school district, to be a
19*
Pistricts.
H..S. 2.1, §24.
1M9, 206.
If-.".!, 303.
,■:; Pick. 70.
4 Cush. 250.
loCush. 418.
4 Cray, 2.')0.
7 Gray, 411.
to he corpora-
tions, &c.
K. S. 2.3, §§57,
&S.
(i Met. 502.
10 Met. 4IH.
may be abol-
ished, A'c.
Ibid, isii, § 1.
I85J, I'M.
See § 11).
towns to vote
on abolition of.
secretary to
notify towns,
A'c, to insert in
warrant con-
cerning.
corporate
powers of, to
continue forcer
tain purposes.
Pnidential con>
mittee in each
district.
222
SCHOOL DISTRICTS — MEETINGS, CLERK. [C HAP. 39.
Duties.
K. S. 23, § 25.
1838, 105, § 2.
11 Pick.aK).
4 Cush. 5',)1).
8 Cush. 191.
Prudential com-
mittee, how
chosen.
It. S. 23, § 26.
21 Pick. 75.
to consist of
three persons.
1839, 137.
4 Gray, 250.
vacancies in,
how tilled.
1855, 451.
town commit-
tee to act as,
wlieu, &c.
R. S. 23, § 31.
If district does
not establish
scliool, town
committee may.
R. S. Zi, § 45.
District meet-
iiifjl's, selectmen,
&(■., may issue
warrants for.
R. .S. 23, § 4(i.
8 Cush. 592.
manner of
warning.
R. S. Zi, § 47.
4 Greenl. 4r».
14 Mass. 315.
12 Mck. 200.
districts may
prescribe mode
of calling.
R. S. 23, §48.
1850, 213.
10 Pick. 543.
2 Cush. 419.
8 Cush. 592.
Clerk to be
chosen, and
sworn, keep
records, &e.
R. .S. 23, § 27.
21 Pick. :■>.
12 Jlet. 105.
liable only for
want of integ-
rity.
District, when
liable.
R. S. 23, § 29.
10 Pick. 513.
11 Pick. 48l>.
Districts may
raise money for
Bchool-hou'ses.
committee for that district, and to be called the prudential committee,
who shall kec]) the school-house in good order at the e.xjieiise of the
district ; and if there is no school-house, shall provide a suitable jilace
for the school of the district at the expense thereof; shall provide fuel
and all things necessaiy for the comfort of the scholars therein ; give
information and assistance to the school committee of the town to aid
them in the discharge of the duties required of them; and, when the
town so determines, shall select and contract with an instructor for each
school in the district.
Sect. 8. If a town so determines, the prudential committee may be
chosen by the legal voters of the several school districts to which they
respectively belong, in such manner as the district directs.
Sect. 9. When a town determines that the prudential committees
shall select and contract with the school teachers for their districts, three
persons in each district may be chosen to act as such committee.
Sect. 10. When the olKce of prudential committee becomes vacant
in any district, by reason of the death, resignation, or removal of the
person or persons elected, such district may fill the vacancy at a legal
meeting called for the purpose.
Sect. 11. When no prudential committee is chosen for a school dis-
trict, the school committee shall perform all the duties of the pruden-
tial committee.
Sect. 12. If a school district neglects or refiises to establish a school
and employ a teacher for the same, the school committee may establish
such school and employ a teacher therefor, as the prudential committee
might have done.
Sect. 13. The selectmen of the 'several towns divided into school
districts as aforesaid, or the ]irudential committee of every such district,
upon application made to either of them respectively, in writing, by
three or more residents who pay taxes in the district, shall issue their
warrant, directed to one of the jiei'sons making the ajiplieation, requir-
ing him to warn the inhabitants of such district, qualified to vote in
town affairs, to meet at the time and place in the district expressed in
the wan-ant.
Sect. 14. The warning shall be given seven days at least before the
time appointed for the meeting, by personal notice to every inhabitant
of the district qualified to vote in town aflliirs, or by lea\nng at his last
and usual place of abode a written notification, expressing the time,
place and purjiose of the meeting, unless the district prescribes another
mode of warning its meetings.
Sect. 15. A school district, at any regular meeting having an article
in the warrant for that purjiose, may jn-escribe the mode of warning all
future meetings of the district; an<l may also direct by whom and in
what manner such meetings may be called. Notwithstanding such jire-
scribed mode, meetings may nevertheless be called in accordance with
the provisions of the two preceding sections.
Sect. 16. The inhabitants of each school district, qualified to vote
in town affiiirs, shall choose a clerk, who shall be sworn by the mo<lera-
tor, in open meeting, or by a justice of the peace ; make a fair record
of all votes passed at meetings of the district; certify the same when
required, and hold his office until a successor is chosen and qualified.
Sect. 17. The clerk shall be answerable only for w.ant of integrity
on his own part ; and if he certifies truly to the assessors of the town
the votes of the district for raising, by a tax, any sum of money, the
district shall be liable in case of any illegality in the proceedings in
relation to raising such money.
Sect. 18. The legal voters of any district, at a meeting called for
that purpose, may raise money for erecting or repairing scliool-houses
in their district ; for purchasing or hiring any buildings to bo used as
Chap. 39.] school districts — schooi^houses, taxes. 223
school-liouses, and l.-iml for the tise and accommodation thereof ; and for Districts may
purchasing hbrarics and necessary school a]i](aratus, fuel, furniture, and i^ sIS, §2g
other necessary articles, for the use of schools; they may also determine ''^^fijIl'L*-
in what part of their district such school-houses shall stand, and choose lo Cusii. iis.
any committee to carry into effect the provisions aforesaid.
Sect. 19. The legal voters of every town may, if they think it expe- Towns may
dient, carry into etteet the provisions of the preceding section at the {J™"^''^'; ^tthe^'
common expense of the town, so far as relates to providing school- common ex-
houses for the several school districts of the town ; and the town in such 'k.'sI'os^ § .32.
case may, at any legal meeting, r.aise money and adopt all other proper l>^io> aso, § 2.
measures for thisjiuqiosc, and, if already districted, may take possession
of tlie school-houses and projierty of the several districts in the manner
provided in section three of this chapter.
Sect. 20. If a school district cannot detennine by a vote of two- Selectmen to
thirds of the legal voters jiresent and voting thereon, where to jilace hrcascj'^c!'''''
their school-house, the selectmen, upon application made to them by the jf-s. 23, §so.
committee appointed to build or procure the school-house, or 1>y five or 2 dray.iu.
more of the legal voters of the district, shall determine where such
school-house shall be placed.
Sect. 21. A school district, obliged by law to provide a suitalile Penalty on
school-house, shall, for neglecting one year so to do, be liable to a fine jvir",otprovw-
not exceeding two hundred dollars, to be recovered by indictment, on '"g ecUooi-
complaint of any legal voter in said district, to be approi)riated to the
support of schools therein.
Sect. 22. In raising and assessing money in the several school dis- Personal and
tricts, every inhabitant of the district shall Ije taxed in the district in ^vill-rc taxed.
which he lives, for all his personal estate, and for all the real estate which }<• s. i'i, §3.3.
he holds in the town, liehig under his own actual improvement; and all 12 iiet! isi!
other of his real estate ia the same town shall be taxed in the district in
which it lies.
Sect. 23. In the assessment of taxes pursuant to the preceding sec- sianufacturing
tion, all real estate an'i machinery belonging to manufacturing corpora- ^^"htr'e^taxed.'
tions or establishments shall be taxed in the school districts where the k. s. 23, §34.
same are situated ; and in assessing the shares in such corporation, or '^ '
the personal estate of the owners of such establishments, for the like
purj3oscs, the value of such machinery and real estate sliall first be
deducted from the value of such shares or personal estate.
Sect. 24. All the land within a town, owned by the same person Non-residents,
not livinff therein, shall be taxed in the same district. ^''^'^'iiJ''^^?'
OECT. 'lo. VV hen the estate 01 a non-resident owner is taxed, it may .c;„nie subject.
be taxed in such district as the assessors of the town determine; and K-s. 23, §35.
the assessors, before they assess a tax for any district, shall determine in
which district the estate of any such non-resident shall be taxed, and
certify in writing their detennination to the clerk of the town, who shall
record the same ; ami such estate, while owned by the same jierson
resident without the limits of the town, shall be taxed in such district
acconlingly until the town is districted anew.
Sect. 2(5. The assessors of the town shall assess, in the same manner School taxes ae-
as town taxes are assessed, on the polls and estates of the inhabitants of t,',!^'?'^'''""^
each school district, and on all estates liable to be taxed therein as K. s. 23,§37.
aforesaid, .all money voted to be raised by the legal voters of such district 3 cus^h.' sisr!
for the purposes aforesaid; and such assessment shall be made within }:5 Ai'iJ'i"''
thirty days after the clerk of the district has certified to said assessors
the sum voted by the district to be raised.
Sect. 27. The assessors shall make a warrant, substantially in the Assossorsto
form heretofore used, except that a seal shall not be required thereto, I^'^"oiiect'or°.*'
directed to one of the collectors of the town, requiring him to collect }<•,?• 23i^§ .3*-
the tax so assessed, and to pay the same to the treasurer of the town 12 Pick. 2H.
within a time to be limited in the warrant ; and a certificate of the
224
SCHOOL DISXraCTS — UNION DISTRICTS. [ClIAP. 39.
assessment shall be made by the assessors and delivered to the treas-
Moncy raised,
to bo ;it disposal
of coiiiinittoes.
E. S. a, § W.
If district re-
fuses to raise
money, towu
may order it.
R. S. 23, § U.
1848, 2r4.
If district neg-
lects to organ-
ize, school com-
mittee may
provide, &c.
1858, H5, § 1.
Collectors, how
to collect taxes.
B. S. 23, § 10.
Treasurer, pow-
ers of, &c.
K. S. 23, §41.
Compensation
of assessors,
&c.
U. S. 23, § 42.
Abatement of
taxes.
Sect. 28. The money so collected and pai<l shall be at the disposal
of the committee appointed by the district, to be by tliem a]iplied to the
building or repairing of school-houses, or to the inirchase of buildings to
be used as such, or of land for their sites, as before provided, and accord-
ing to the votes or directions of the legal voters of the district.
Sect. 29. If at a meeting of the legal voters of a school district
called for the purpose of raising money, a majority of the voters jjresent
are opposed thereto, any five inhabitants of the district, who pay taxes,
may make api)lieation in writing to the selectmen of the town, request-
ing them to insert in their warrant for the next town meeting an article
requiring the opinion of the town relative to the expediency of rai-sing
such money as was proposed in the warrant for the district meeting;
and if the majority of the voters think the raising of any of the sums of
money proposed in the warrant is necessary and expedient, they may
vote such sum as they think necessary for said ]nir]ioses, and the same
shall be assessed on the ])olls and estates of the inhabitants of such dis-
trict, and be collected and paid over in the manner before jnovided.
They may also empower the selectmen of the town, or the school com-
mittee, or may choose a committee, to carry into eflect the purposes for
which such money is voted, if such district neglects or refuses to choose
a committee for that pur])ose.
Sect. 30. If a district neglects to organize by the choice of officers,
the money necessary for the erection, repair, or enlargement, of a school-
house therein, may be ex])ended by order of the school committee, and,
n])on their certificate, shall be assessed upon the polls and estates of the
inhabitants of the district, collected like other district taxes, and paid
into the treasury of the city or town.
Sect. 31. In collecting district taxes the collectors shall have the
same powers and proceed in the manner provided by law in collecting
town taxes.
Sect. 32. The treasurer of a town, to whom a certificate of the
assessment of a district tax is transmitted, shall have the like authority
to enforce the collection and pavanent of the money so assessed and
certified, as he has in the case of money raised by the town, for the use
of the town.
Sect. 33. The assessors, treasurer, and collector, shall have the same
compensation, respecti\ely, for assessing, collecting, and ])aying out
money, assessed for the use of a school district, as is allowed by the town
for like services in respect to town taxes.
Sect. 34. The assessors shall have the same power to abate the tax,
or any part thereof, assessed on an inhabitant of a school district, as
they have to abate town taxes.
Union districts,
how formed,
&c.
1838, 180, §§ 1, 2,
5.
1839, 56, § 2.
First meeting^.
Subsequent
meetings. Lo-
cation of liouse.
is;t8, isy, §9 3, 5.
UXTOX DISTRICTS.
Sect. 35. Two or more contiguous school districts in a town may,
by a vote of two-thirds of the legal voters of each district, present and
voting at legal meetings of their respective districts called for the pur-
pose, associate and form a union district, for the puipose of maintaining
a union school for the benefit of the older children of such associated
districts ; such district shall have the powers, privileges, and liabilities
of school districts, with such name as the district determines at its first
meeting.
Sect. 86. The districts proposing such association shall, at the time
of voting to form the union, respectively agree upon the time, |ilaee and
manner of calling the first meeting of the union district, wlilch may
from time to time determine the mode of calling and warning its meet-
Chap. 30.] school districts — contiguous districts. 225
inns, the time anil ]ilnce of its annual meetings, and the place where its
school-house shall stand. The location of the school-house, if not deter-
mined b}' the district, shall be refen'ed to the selectmen, as provided for
other districts.
Sect. 37. Each union district, at its first meeting, shall choose by cicrk, how
ballot a clerk, who shall be sworn in the manner, and perfbnn the duties, ]Jj^"™gi,*§4
jjrescribed for clerks of other school districts, and hold the office until
a successor is chosen and qualified.
Sect. 38. In raising and assessing money in such districts, every Assessments,
inhabitant shall be taxed in the manner in which inhabitants of other i'lj's, "wit's' i.
school districts are taxed, and the real estate of non-resident owners
taxable in either of the districts composing the union district shall be
taxed in such districts.
Sect. 39. The jirudential committees of the respective districts, Pradentini eom-
forming the union district, shall together constitute the prudential com- "',"t'itutert)^
mittee of such district ; liave the powers and discharge the duties, in powlts and du-
relation to the school and school-house of the district, prescrilied to pru- S, isg, §§o,r.
ilential committees in relation to the schools and school-houses in their
respective districts ; and determine what proportion of the money raised
and apjiropriatcd by the town for each of the districts composing the
union district shall be a])propriated and expended in paying the in-
structors of the union school ; subject in all matters to any legal votes
of the union district.
Sect. 40. The public schools required by law shall continue to be Ueuai schools
maintaineil in each of the districts thus associated, as if no union district Ji5S«''is«,'§ r.
had been formed.
Sect. 41. The school committee shall have the powers and duties school commit-
in relation to such union school which they have in relation to other ai[j'JI,°)"7of
district schools. is*>, !»«,§».
CONTIGUOUS SCnOOL DISTRICTS IN ADJOrN'TNG TOWNS.
Sect. 42. If two or more contiguous school districts in adjoining Contiguous dis-
towns are too small to maintain schools advantageously in each, such dis- {"JVowns'muy
tricts may tmite and form one district, with the powers, privileges, and uiSto.
liabilities allowed or prescribed in regard to school districts. ■ • .5 .
Sect. 43. No district shall be so united, unless the legal voters of Union not form-
each, at legal meetings called for the pur]iose, agree thereto ; nor, unless senTofdistiiotsi
the respective towns, at legal town meetings called for the puniose, ic.
. ..KS23550
assent to the same ; and when such vote is passed by a school district, ■ • > » •
the clerk thereof shall forthwith send a certified copy to the clerk of his
town.
Sect. 44. When the voters in such united district, at a legal meet- united dis-
ing called for the puqiose, deem it expedient to separate and again *"par„"I3! ""^
form two or more districts, they may do so, first obtaining the consent k. s. -.i^J, § 5i.
of the respective towns.
Sect. 4.'i. Tiie first meeting of such united district shall be called in meetings of,
the manner agreed upon by the respective districts at the time of form- k° s.'^lsl'fsa.
ing the union ; and such district may, fi-om time to time thereafter,
])rescribe the mode of calling and warning its meetings as other school
districts may do.
Sect. 4(5. Such district, at the first meeting and annually thereafter, Prudential com-
shall choose a prudential committee, who shall receive and expend the "hosen.&c!''
money raised and appropriated in each town for the united district, and k. s. 23, §53.
]>ossess the powers and discharge the duties allowed or prescribed to
the prudential committees of other districts.
Sect. 47. The legal voters of a united district shall, at the time of Money raised to
voting to raise such money, determine the amount to be jiaid by the {^on^lcT""^
inhabitants in each town, which shall be in proportion to their respec- K. s. 23, §54.
29
226
SCHOOL REGISTERS AND RETURNS.
[Chap. 40.
Monov,
sessea.
K. S. 23, § 05,
School commit
lees of adjoiuiiiy
towns to offi-
ciate in turns.
K. S. 23, § 50.
tive polls and estates ; and the clerk of the district shall certify such vote
to the assessors of each of said towns,
how as- Sect. 48. All money duly voted to be raised by any such united
district shall be assessed by the assessors of the respective towns upon
the jiolls and estates of the inhabitants of the district, and collected, as
taxes ai'e assessed and collected in other school districts.
Sect. 49. The respective school committees of the to^ms from which
such imited district is formed shall discharge the duties of school com-
mittee for the district in alternate years, commencing with the most
ancient town.
CHAPTER 40,
OF SCHOOL REGISTERS AND RETURNS.
Section
1. Town clerks to deliver registers, &c., to
school committee.
2. If not received.
3. Duties of assessors, as to persons between
five and fifteen.
4. of school committee ; form of certificite.
5. Registers to be kept ; returns.
6. Committees' report ; to whom sent j where
deposited ; to be printed.
7. When report is not made.
8. When informal, &c.
Section
9. Penalty for neglect, or informal, &c., re-
port.
10. Keports, &c., of board of education, how
received, delivered, and for what purpose.
In whom property of.
11. Who to sign reports.
12. Penalty on committee for neglect in re-
turns, &c.
13. Registers, how kept. Teachers not to draw
pay until return of register.
Town clerks to
deliver regis-
ters, &c., to
school commit-
tee.
ISii), 63, § 2.
If not received.
ISM, 223, §3.
Duties of as-
sessors as to
persons be-
tween five and
fifteen.
IS55, 15.
of school com-
mittee. Form
of certificate.
lS4fi, 223, § 2.
1*49, 117, § 1.
1835, 23.
See § 11.
Section 1. The clerks of tlie several cities and towns, upon re-
ceiving from the secretary of the board of education the school registers
and blank forms of inquiry for school returns, shall deliver them to the
school committee of such cities and towns.
Sect. "2. If a school committee fails to receive such blank forms of
return on or before the last day of March, they shall forthwith notify
the secretary of the board of education, who shall transmit such forms
as soon as may be.
Sect. 3. The assessors shall annu.ally in the month of May, ascertain
the number of persons in their respective towns and cities on the first
day of May between the ages of five and fifteen years, and on or before
the first day of July following report the same to the school committee.
Sect. 4. The school committee shall annually on or before the last
day of the following April, certify under oath the numbers so returned
to them by the assessors, and also the sum raised by such city or town
for the supjtort of schools during the preceding school year, including
only wages and board of teachers, fuel for the schools, and care of the
fires and school-rooms, and .shall transmit such certificate to the secre-
tary of the board of education. The form of such certificate shall be as
follows, to wit : —
We, the school committee of , do certify, that from the returns made by
the assessors in the year , it appears, that on the first day of May, in the year
, there were belonging to said town the number of persons between
the ages of tive and fifteen years ; and we further certify, that said town raised the
sum of dollars for the support of public seliools for the preceding school year,
including only the wages and board of teachers, fuel for the schools, and care of fires
and school-rooms.
> Sc/iool Committee,
day of , personally appeared the above named
, and made oath that the above certificate, by them
s,s. On this
school committee of
subsciibed, is true.
Before me,
Justice of the Peace,
C:iAP. 40.] SCHOOL nEGISTERS AND RETURNS. 227
Sect. 5. The school eoinmittee shall e:iuse the school registers to be licg-isturs and
faithfully kept in all the jiublic schools, ami sliall annually on or before JJ!.™'!ISf ; ,^0^
the last day of April, return tlie blank forms of innuirv, ilulv filled up, ULi, § « ; irt",
to the secretary of the board of edueatii^n ; and siiall also specify in Ira! s«>§ir.
said returns the purposes to which the money received by their town or S'-"'^ ^1'- i!':' f !?;,
city from the income ot the scliool lund has been a]i))ro|)riatetl.
Sect. 6. The school committee shall annually make a detailed report Committees' ro-
of the condition of the several public schools, which report shall eon- S • whei'e"de-
tain such statements and suggestions in relation to the schools as the posited; to be
committee deem necessary or proper to promote the interests thereof. ?iTS,'io5, §i.
The committee shall cause said report to be printed for the use of the J'^i.'!' :;■''■ * "•■
. ... . 1 1 i» x» I ■ 1' 1 1 Itoy, 57.
inhabitants, in octavo, pamphlet lorni, ot the size ot tlie annual rejiorts See cii. nn, § n.
of the board of education, and transmit two copies tliereof to the sccre- SccCii. *, §jo.
tary of said board, on or before the last day of Ajuil, and deposit one
copy in the office of the clerk of the city or town.
Sect. 7. When a school committee fails within the prescribed time wiien report Ih
to make either the returns or rejiort required of tiiem V)y law, tlie ";!l^'5"<j3''5i
secretary of the board of education shall forthwitli notify such com- See ch. 3S, § ao.
mittee, or the clerk of the city or town, of such failure; and the com-
mittee or clerk shall immediately cause the same to be transmitted to
the secretary.
Sect. 8. If a report or return is found to be informal or incorrect, when informal,
the secretary shall tbrthwith return the same, with a statement of all f^~ (,3 c^
deficiencies therein, to the committee for its further action. .See cii. :j¥, § so.
Sect. 9. The returns or re])orts of a city or town so returned by the Penalty fomc;'-
secretary for correction, or which have not reached his office within the Jti.'^eporT"""
time prescribed by law, shall be received by him if returned during the ifw, 93, §;;.
month of May; but in all such cases ten per cent, sliall be deducted "^'■''^^■
from the income of the school fund which such city or town would have .
been otherwise entitled to. If such returns or reports fail to reach his
office before the first day of June, then the whole of such city or town's
share of the income shall be retained by the treasurer of the common-
wealth, and the amount so retained, as well as the ten j)cr cent, when
deducted, sliall be added to the princi])al of the school fund. And such
city or town shall in addition thereto forfeit not less than one hundred
uor more than two humlred dollars : provided, however, if said returns
and reports were <luly mailed in season to reach said office within the
time required by law, then the city or town from which said returns or
reports are due shall be exempt from the forfeiture, otherwise incurred.
Sect. 10. Tlie clerk of each city and town .shall deliver one copy of RrportB, &p., of
the rejaorts of the board of education and its secretary to the secretary {ion',''bowrl-*
of the school committee of the city or town, to be by him preserveil ';^'"^'^; ^"'""^J''
for the use of the committee, and transmitted to liis successor in office ; nnVpose.
and two additional copies of said reports, for the use of said committee; inwhomprop-
and shall also deliver one copy of said reports to the clerk of each isia, os, §a.
school district, to be by him deposited in the school district library, or,
if there is no such library, carefully kept for the use of tlie prudential
committee, teachers, and inhabitants, of the district, during his con-
tinuance in office, and then transmitted to his successor ; and in case
the city or town shall not be districted, said rejiorts shall be delivered
to the school committee, and so deposited bv them as to be accessible to
the several teachers and to the citizens ; and such reports shall be
deemed to be the pro]ierty of the town or city, and not of any officer,
teacher, or citizen, thereof
Sect. 11. When the school committee of a city or town is not less who to sign re-
than thirteen in number, the chairman and secretary thereof may, in be- ^^Is^m
half of the committee, sign the annual school returns and the certificate
required by sections four and five. ren^ityoneom-
Sect. 111. A city or town which has forfeited any part of its portion n.ittce for neg-
228
ATTESDASCE OF CHILDREN IN SCHOOLS. [ChaP. 41.
lect in returns,
Ac.
1847, 1S3, § 2.
DHU, ir3.
Registers, how
kept. Teachers
not to draw puy
until return of
register.
ISl'J, '^09.
of tlie income of the school fund throuoh the f lilure of the school
committee to ])ei-form their duties in regard to the school rejiort and
school returns, may withholil tlie compensation of tlie committee.
Sect. 13. The several school teachers shall faithfully keep the regis-
ters furnished to them, and make due return thereof to the school com-
mittee, or sucli person as they may designate, and no teacher shall be
entitled to receive payment for services until the register, properly tilled
up and completed, shall be so returned.
CHAPTER 41
OF THE ATTENDANCE OF CHILDREN IN THE SCHOOLS.
Section
1. Children to be sent to school by parents,
&c. Penalty for neglect. Excuses for neg-
lect.
2. Truant officers and school committee to in-
quire and report.
3. All children may attend where they reside.
4. School committee to regulate admission,
&c., to high school.
5. Children may attend in ac^oiniug town, and
committee pay for instruction.
Section
0. Wards may attend where guardian resides.
7. Childreu may attend in other toivns than
place of parents' residence, and parents
pay, &c.
8. Children not to attend unless vaccinated.
9. Race, &c., not to exclude.
10. Teachers and school committee to state
grounds of exclusion.
11. Damages for exclusion, how recovered.
12. Interrogatories to committee, &e.
Cliildren to be
sent to school
by parents, &e.
Penalty for neg-
lect. Excuses
for neglect.
1852, 2-iO, §§ 1,
•2,4.
1S55, 309.
Truant officers
and school com-
mittee toiuquire
and report.
IK32, 240, § 3.
1855, 30'.t.
1859, ISS.
rhildren to at-
tend where they
reside.
l.'«9, 117, §4.
Admission to
high school,
how regulated.
li. S. 23, § 15.
Children may
Jittend in ad-
Sectiox 1. Every person having under his control a child liet'n'een
the .iges of eight and fourteen years, shall annually during the contin-
uance of his control send such child to some public school in the city or
town in which he resides, at least twelve week.s, if the public schools of
such city or town so long continue, six weeks of which time shall be
consecutive ; and for every neglect of such duty the party oft'en<ling
shall forfeit to the use of such city or town a sum not exceeding twenty
dollars : but if it appears upon the inquiry of the truant officers or
school committee of any city or town, or upon the trial of any prosecu-
tion, that the party so neglecting was not able, by reason of poverty, to
send such child to school, or to furnish him with the means of education,
or that such child has been otherwise furnished with the means of edu-
cation for a like period of time, or has already acquired the branches of
learning tauglit in the public schools, or that his bodily or mental con-
dition has been such as to prevent his attendance at scjiool or a])jilica-
tion to study for the period required, the penalty before mentioned shall
not be incurred.
Sect. '2. The truant officers and the .school committees of the several
cities and towns shall inquire into all cases of neglect of the duty ])re-
scribed in the preceding section ; and ascertain from the jiersons neg-
lecting, the reasons if any therefor ; and shall forchwith give notice of
all violations, with the reasons, to the treasurer of the cit)' or town ;
and if such treasurer wilfully neglects or refuses to prosecute any jier-
son liable to the penalty jirovided lor in the preceding section, he shall
forfeit the sum of twenty dollars.
Sect. 3. All children within the commonwealth may attend the pub-
lic schools in the place in which they have their legal residence, subject
to the regulations prescribed by law.
Sect. 4. The school committee shall detennine the number and
qualiiications of the scholars to be admitted into the school kept for the
use of the whole town.
Sect. 5. Children living remote from any public school in the town
in which they reside, may be allowed to attend the public scho(3ls in an
Chap. 42.] employment of .^xd iiecllations respecting children.
229
adjoining town, under such regulations, and on such terms, as the joining town,
school committees of the said towns agree ujjon and prescribe; and tlie jmy fo"i™truc.
school committee of the town in which such children reside shall pay <'<[»■ _^
out of the appropriations of money raised in said town for thy sujiport i(.5u!sii!§i.
of schools the sum agreed upon.
Sect. 6. Minors under guardianshi|), their father having deceased, ■Wanis, where
may attend the public schools of the city or town of ^\■hieh their guar- S.Yw.'"'"
dian is an inhabitant.
Sect. 7. With the consent of school committees first obtained, chil- rinHrpn may
dren between the ages of five and fifteen years may attend school in towns than '"^"^
cities and towns other than those in which their parents or guardians phico of par-
reside ; but whenever a child resides in a city or town diflerent fiorn and'parcut™"'^'
that of the residence of the parent or guardian, for tlie sole jiurjKise of t'"' ^^■
attending school there, the parent or guardian of such child shall be ' '
liable to pay to such city or town, for tuition, a sum equal to the aver-
age expense per scholar for such school for the period the child shall
have so attended.
Sect. 8. The school committee shall not allow any child to be ad- rhiuircntobe
mitted to or connected with the public schools, who has not been duly l^g"]"^;}^;.
No person shall be excluded from a public school on ac- Coiov, a-c, not
vaccinated.
Sect. 9. ^
count of the race, color, or religious opinions, of the apjilicant or scholar. i^5''lfg"''8 j
Sect. 10. Every member of the school committee under whose di- Teachers, &c.,
rections a child is excluded from a public school, and every teacher of •" "'■'*',' ,
, , ^ .*. tri'ouii'is 01 ex-
such school from which a child is excluded, shall, on application by the iiusioii.
parent or guardian of such child, state in writing the grounds and i**5j, i;j(>, §4.
reason of the exclusion.
Sect. 11. A child unlawfully excluded from any public school shall Damases for
recover damages therefor in an action of tort, to be brought in the ^'J '
exclusion.
]S4.-,, ai4.
name of such chdd by his guardian or next friend against the city or iss^j, aii, § 2.
town by wiuch such school is su])]jorted. 7 Gray, 245.
Sect. 12. The plaintiff in such action ma)', by filing interrogatories interroj,^atoric«
for discovery, examine any member of the school committee, or any J^' '■'""'»"'"'''
other officer of the defendant city or town, as if he were a party to the isij, 250, §3.
suit.
CHAPTER 42.
OF THE EMPLOYMENT OF CHILDREN AND REGULATIONS RESPECTING
THEM.
Section
1. CliiMron under fifteen, who have not at-
tended school, &c., not to be employed in
manufactory, unless, &c.
2. Penalty, school committee to prosecute.
3. Cliildren under twelve not to be employed
more than ten hours a day. Peindty.
4. Cities and towns may make by-hiws re-
specting habitual truants, &c. Fines.
Section
5. Cities and to^vns shall appoint persons to
prosecute for violations of by-laws.
0. Jlinor convicted m.ay be committed, &e.
7. On non-payment of fine, may be com-
mitted. How discharf^ed.
8. Warrants where returnable. Compensa-
tion.
Sectiox 1. Children of the age of twelve years and under the age of Certaiu chii-
fifteen years, who have resided in this state for the term of six months, e,"p\oy,VS|,'''''
shall not be employed in a manufacturing establishment unless within manuiactory,
twelve months next jireceding the term of such em])lo_yment they have ""in.'^^iu, §'i.
attended some public or private day schortl, under teachers apiu'oved by '-^l!' ;■;;'>§ '•
the school committee of the ])lace in which said school was kept, at least is5n si, § i.
one term of eleven weeks, and unless they .shall attend such a school for
20
230
EMPLOYMENT OF AND REGULATIONS RESPECTING CHILDREN. [ChAP. 42.
Penalty.
Sr.hool commit
te*' to prose-
cute.
1«2, no, § 1.
ISlll, 220, § ?,.
ItSSS, tB, § 2.
Cliildrcn under
r; not to be cm-
ployeil more
th;m teu Iioiirs
u ilav. Penalty.
1W2; 00, §§ :), -4.
9 Met. 502.
iiy-Iaws re-
Bpertins: habit-
ual truauts, &c.
Fines.
1K5U, 294, § 1.
1^4, SK, § 6.
IS5!), lilU.
See § 0.
\iolations of,
Iiow to be pros-
centctl.
1K50, M, § 2.
Minor convict-
eil may be cora-
niitted, &c.
1852, 283, § 1.
1854, 88, § 3.
Ou non-pay-
ment of line,
may he coni-
milted.
Hou' discharfj-
ed.
1S52, 213, §§ 2, 3.
l.-<6-l, 8S, §§ :i, 4.
See Ch. 180.
Warrants,
wliere return-
able.
Compensation.
1854,88.
a like period during e.acli twelve montlis of such employment. CliiUlren
under twelve ye;irs of age, h.iving resided in this state for a like jieiiod,
shall not be .so employed unless they have attended a like school for the
term of eighteen weeks within twelve months ne.xt preceding their
employment, and a like term during each twelve mouths of such emjiloy-
ment.
Sect. 2. The owner, agent, or superintendent, of a manufacturing
establishment, who employs a child in violation of the provisions of the
preceding section, shall forfeit a sum not exceeding fifty dollars for each
offence, to be recovered by indictment, to the use of the public schools
in tlie city or town where such establishment is situated ; and the school
committees in the several cities and towns shall prosecute for all such
forfeitures.
Sect. 3. No child under the age of twelve years shall be employed
in any manufacturing establishment more than ten hours in one day;
and the owner, agent, or superintendent, who knowingly employs such
child for a greater number of houns, shall forfeit the sum of fifty dollars
for each offence, to the use of the person prosecuting therefor.
Sect. 4. Each city and town may make all needful provisions and
arrangements concerning habitu.'d truants, and children not attending
school, or without any regular and lawful occupation, or growing uji in
ignorance, between the ages of five and si.xteen years; and also all such
by-laws respecting such children, as shall be deemed most conducive to
their welfare and the good order of such city or town ; and there shall
be annexed to such by-laws suitable penalties, not exceeding twenty
dollars for any one breach : jjrovided, that said by-laws shall be approved
by the superior court of the county.
Sect. 5. The several cities and towns availing themselves of the
provisions of the preceding section, shall appoint at the annual meetings
of such towns, or annu.ally by the mayor and aldeiTnen of such cities,
three or more persons, who alone shall be authorized, in case of violation
of such by-laws, to make the complaint and carry into execution the
judgments thereon.
Sect. 6. A minor convicted under such by-law of being an habitual
truant, or of not attending school, or of being witliout regular and lawful
occupation, or growing up in ignorance, may, at the discretion of the
justice or court having jurisdiction of the case, instead of the fine men-
tioned in section four, be committed to any such institution of instruc-
tii>n, house of reformation, or suitable situation provided for the purpose
under authority of section four, for such time, not exceeding two years,
as such justice or court may determine.
Sect. 7. A minor convicted of either of said offences and sentenced
to ]iay a fine may, in default of payment thereof, be committed to such
institution of instruction, house of reformation, or suitable situation
provided as aforesaid. And upon proof that the minor is unable to pay
the fine, and has no parent, guardian, or i)erson chargealtle with his
sup]>ort, able to pay the same, he may be discharged by such justice or
court, whenever it is deemed expedient, or he may be discharged in the
manner poor convicts may be discharged from imprisonment for non-
payment of fine and costs.
Sect. 8. Warrants issued under this chapter shall be returnable
before any trial justice or judge of a police court, at the place named in
the warrant ; and the justice or judge shall receive such compensation
as the city or town determines.
Chap. 43.] laying out and discontinuance of ways.
2.31
TITLE XII.
OF WAYS, BRIDGES, PUBLIC PLACES, FERRIES, SEWERS, AND
DRAINS.
Chapter 43. — Of the Laying out and Discontinuance of Highways, Town Ways,
and Private Ways.
Ch.\pter 44. — Of tliB Repairs of Ways and Bridges.
Chapter 45. — Of Regulations and By-Laws respecting Ways and Bridges.
Chapter 46. — Of the Boundaries of Highways and other Public Places, and
Encroachments thereon.
Chapter 47. — Of Ferries.
Chapter 48. — Of Sewers and Drains.
CHAPTER 43.
OF THE LAYING OUT AND DISCONTINUANCE OF HIGinVAYS, TOVTS
WAYS, AND PRIVATE WAYS.
Section
1. Highways to be laid out by the commis-
Bioucrs.
2. Recognizance for pnymeut of costs, &e.
3. Notice to be given to towns, &c,
4. Corainissioucrs to view i)rL'mi8e8, if re-
quested, &c.
5. Ileariiig sud adjudii^atiou upon eommou
convenience, &c.
6. Notice before highway is laid out, &c.
7. Alterations between termini.
8. Commissioners may lay out, &c., highways
if at time of view iin fnie objects.
9. Upon petition for laying out, .te., highway ;
commissioners may order specific repairs
of existing highways.
10. Highway may be temporarily closed in
Bucli case.
11. Towns to make such repairs.
12. Existing higliway may he located anew.
13. Time prescribed for making highways, and
for removing trees, &c.
14. Damages to be estimated, but not paid un-
til, &c. Indemnity.
15. Damages occasioned by specific repairs. In-
demnity.
IG. Damages, how estimated.
17. When claimants have different interests,
entire damage or indemnity to be paid to a
t'-ustee.
18. Trustee in certain cases to be appointed by
judge of probate; to give bond. Suit on
bond.
19. Party aggrieved to have a jury or commit-
tee.
20. Powers of jury, &c., as to laying out and
altering.
Section
21. Applications for jury to revise location,
&c. ; when acted on.
22. to revise assessment of damages, when
to be made.
23. Several applicjitious may be considered,
»S:c., by same jury.
24. Recognizance for costs in all cases.
25. Petitions not to abate !)y deatli of party.
20. Executors, &e., neglecting to appear, sur-
vivors may proceed.
27. Warrant for jury, directed to sheriff, &c.
28. Jury, Iiow and whence summoned.
29. Jurors to pay fine for non-attendance.
30. Talesmen may be returned.
31. Jurors to be sworn.
32. Commissioners may appoint person to pre-
side at trial.
33. Duties of presiding officer.
34. Commissioners to take notice on behalf of
their counties. May appoint agent to at-
tend jury.
35. Notice of trial.
30. Oflicer's fees.
37. Duty of jury.
;iS. Title of lands, determined only so far as re-
spects damages.
.39. Jury may extend time for remoWng trees,
&c.
40. Verdict or report to be returned within
three months. Court may set aside.
41. Complainant entitled to jury until verdict
rendered ; may waive right to trial, &c.
42. Clerks of courts to certify verdict, &c., to
commissioners. Proceedings thereon.
43. Verdict, &c., recorded, conclusive.
44. Costs, how paid.
232
LAYING OUT AND DISCONTINUANCE OF WAYS. [ChAP. 43.
Sectios
45. Questions of costs, finally settled, &c.
46. Highways not to be worked or shut up
until, »fcc.
47. Expenses, damages, &e.,paid by county.
48. Expenses paid by petitioners.
49. Highways made at expense of county when
towns neglect. Charged to towns.
50. Warrants to issue agaiust towns neglecting
to pay.
51. Comraisaioners may order expenses to be
paid out of county treasury.
62. Commissioners to certify to county treas-
urer when highway is completed.
53. Several parties may go to same jury.
54. Notice to persons interested to become par-
ties.
55. Verdict, to apportion damages.
56. conclusive on all who have notice, &c.
57. Costs of parties, how taxed.
58. Party neglecting to appear, to be barred.
TOWN WAYS AND PRIVATE WAYS.
59. Town ways, &c., how laid out.
CO. how discontinued.
61. Notice to be given by selectmen before lay-
ing out.
62. Damage from laying out, &c., how deter-
mined and paid.
6.3. When paid ; when party shall have indem-
nity instead.
64. Damages, if interests are separate.
65. Location, &c., to be filed and accepted be-
fore town way, &c., laid out.
66. Commissioners may lay out in certain
cases.
67. If selectmen unreasonably refuse, &c., party
may appeal to commissioners.
68. Appeal if towns refuse to accept ways.
09. If ways laid out, &c., by commissioners,
are not completed in six months, &c., they
may complete and assess town.
70. If towns refuse to discontinue, commission-
ers may.
71. When towns are debarred from laying
out, &c.
72. Kecognizance for costB. Notic«.
Section
73. Parties may have jury or committee to as-
certjun damages ; rule as to costs.
74. Owner may remove trees, &c. Not remov-
ing, relinquislies right.
75. Jury may extend time for removal.
76. When towns shall not contest legality of
ways.
WAYS IN THE COUNTY OF SUFFOLK.
77. Powers of board of aldermen of Boston.
78. Application for laying out ways, &e., how
made.
79. Parties may apply for jury to superior
court ; view to be granted.
80. Commissioners of Middlesex, powers of,
in Suffolk. Warrant for jury, to whom
directed. Return of verdict, &c.
WAYS IN CITIES.
81. Provisions of chapter extend to cities.
DEDICATION OF WAYS.
82. Ways not chargeable unless regularly laid
out.
83. Selectmen, &c., to close such ways, or cau-
tion the public, &c.
84. When abutters to grade ways. If they re-
fuse, to bo assessed for expense.
85. Grade, how established j plan of, where
deposited.
86. Grading of way, not a dedication. Estab-
lishment of grade, not an acceptance.
Streets not to be obstructed without con-
Bent, &c.
ASCEltTAIXING LOCATION.
87. If location of way is uncertain, selectmen,
&c., to ascertain, &c.
ERECTION OF MONUMENTS.
88. Commissioners, A'c, to mark termini and
angles of ways. Penalty forneglect.
WAYS OVER BURYING-GROrXDS.
89. Ways not to be laid out over burying-
grounds, unless, &c.
90. Same subject.
Hig^hwaysto be
laid out by the
commissioners.
R. S. 24, § 1.
1850, 299.
7 Mass. 158.
Recognizance
for payment of
costs, A'C.
K. S. 24, HI.
18 Pick. .309.
Notice to be
given to towns,
&c.
K. S. 24, § 2.
7 Gray, 109.
Section 1. When a new higliAvay, from town to town, or from place
to ]>lace within the same town, is wanting, or when any highway can
with greater jniblic convenience be altei-ed or tliseontinned, apphcation
therefor shall be made, by petition in writing to the county commis-
sioners who have jurisdiction in the place in which such new highway
or such alteration or discontinuance is wanted.
Sect. 2. No petition for the laying out, altering, or discontinuing,
a highway, shall be proceeded upon by the commissioners, until the
petitioners cause a sufficient recognizance to be given to the county,
with surety to the satisfaction of the commissioners, for the payment of
all costs and expenses which shall arise by reason of such petition and
the proceedings thereon, if the petitioners shall not finally prevail.
Sect. 3. The commissioners to whom such jietition is presented shall
cause a copy thereof to be served upon the clerk of every town within
which such new highway, alteration, or discontinuance, is prayed for,
thirty days at least before the time appointed for any view or hearing.
They shall also cause copies of the petition, or abstracts containing the
substance thereof, to be posted in two public ])laees in each of said towns,
and shall give notice to all persons interested, by causing a like copy to
be publislied three weeks successively in such newspaper as they shall
order; the posting and the last publication of the copy to be fourteen
days at least before any view, hearing, or adjudication, on such petition.
Chap. 43.] laying out and discontinuance of ways. 233
Sect. 4. Tliey shall view the premises, when they deem it expedient Commissioners
or when requested by any party interested ; and, before any view, shall i"es,"if requeVt-
give notice in tlie manner provided in the preceding section to all per- ed,&c^
sons interested, of the time and place for commencing the same. <i jret.'l-;! "
Sect. 5. They shall hear the parties, either at the time of the view, Hearing and ad-
or at any regular or sjjecial meeting, or any adjournment thereof^ as they i"nimon'cunv "
detennine; and as soon as may be after the hearing they shall consider uiencc, &c.
and adjudicate upon the common convenience and necessity of lajang uiict'ia. '
out, altering, or discontinuing, such highway, as prayed for by the
petitioners.
Sect. 6. When they have adjudicated upon the common convenience Xotice before
and necessity of laying out, altering, or discontinuing, a highway, tliey J,''*f'' J'"^ '^ ^^
shall, as soon as may be, proceed to lay out, alter, or discontinue, the k. s. aV, §«.
same accordingly; first giving such notice thereof as is required before m pick! rl?'
]>roceeding to view, except that instead of a copy of the whole petition vs Pick. ars.
it shall be sufficient to serve and iniblish an abstract thereof ' ™'''
Sect. 7. They may make .such changes between the termini of the Alterations bc-
highway described in the petition, with regard to the direction, alter- J" '^™.,V''«' 5'""'
ation, or discontinuance, thereof, as in their opinion the public con-
venience lequires.
Sect. S. If at the time of view, upon a petition for laying out or alter- Commissioners
ing a highway, no person interested shall oliject, the commissioners may J"'^i','iJi,°waV8
within six months proceed to lay otit or alter the same without further ifattimeof'
notice. If at the time of view upon a petition for discontinuing a highway ot^eet"" """^
the commissioners shall decide that the same ought to be discontinued, J'- ?rf' 5<'.
, 1 . 1-T 11 "I.IT. . 1 lS.i.t, . I), 9 1.
they may at the same tnne adjudge and detennine that it be discontinued 20 Pick. 71.
Avithout a further or subsequent meeting therefor, and may estimate the 'J ^i"*- *^5-
damages caused to any person thereby ; and when a return of said pro-
ceedings and adjudication is made at the next regular meeting of the
commissioners and accepted, it shall be held to be a discontinuance of
such highway.
Sect. 9. If, upon a ]ietition for laying out or altering a highway, the i-pou petition
commissioners, after havinij; viewed the same and heard ail persons in- ','.'!' 'v^'VIH..'!',',''
terested, are of opinion that the existing highway between the termini cimimissioners
mentioned in the petition can be so lar amended as to supersede the "JiiJ "Jp^rs^of
necessity of laying out a new highway or altering the location of exist- ™'^t";f^' ^^y^-
ing ways, they may, after due notice to the towns interested, direct I'jiet. wo.''
specific repairs to be made in the existing ways in such manner as the
public convenience requires ; and they may apportion the expense of
making the same upon the county and towns resijectively as in laying
out highways.
Sect. 10. At the time of ordering specific repairs upon an existing Highway mav
highway, they may direct it to be closed to the public travel for such [^Jiigc™''"™
time as they may deem reasonable. isao, 90
Sect. 11. Towns in which specific repairs are ordered to be made To\rastomako
shall be liable to make the same, and be entitled to a trial by jury in 5'/*s'"/'i''g"""
like manner as is jirovided in laying out highways.
Sect. 12. When ap])lication is made to the commissioners by a town. Existing higii-
or by five inhalutants of a town, to locate anew a road within such Sd'ai'iow? '"^
town, whether the same were laid out by the authority of the town or K.,s.2^, §9.
otherwise, they may, either for the purpose of establishing the boundary I'/cush.'.^M.
lines of such road or of making alterations in the course or width '- Gray, 274.
thereof, locate it anew, after giving like notice and proceeding in the
manner prescrilied in laying out highways. The expense shall be as-
sessed u]>on the petitioners, or upon the town or county, as the com-
missioners order.
Sect. 13. When a highway is laid out or altered, the commissioners Time prescrib-
shall in their return determii^e and specify the manner in wliich such S','i!,'i"[va'ys^'i!iifa
new highway or altei'ation shall be made, and also the time within which
20» ■ 30
234
LAYING OUT AND DISCONTINUANCE OF WAYS. [ChaP. 43.
for removing
trees, &c.
R. S. 24, § 10.
1859, 132, § 2.
3 Mass. 40(5.
Damages to be
estimated, but
not paid until,
&c. ludcmnity.
K. S. 24, § 11.
1S42, sij, § 1.
22 Pick. 2()3.
2 Met. 558.
10 Met. 4115.
12 Met. 12:j.
SCush.Sl.
8 Cush. 300.
2 Gray, 207.
4 Gray, 537.
5 Gray, 35, 372.
Damages occa-
sioned by spe-
cific repairs. In-
demnity.
1842, SO, § 2.
8 Cush. 302.
2 Gray, 207.
Damages, how
estimated.
.Set-off.
it. .S. 24, § 31.
1842, 80, § 2.
a Mass. 207.
5 Met. 372.
2 Gray, 407.
4 Gray, 637.
"VVIien claim-
ants have differ-
ent interests,
entire damages
or indemnity
to be piud to a
trustee.
1851,290, §1.
See §§ 63, 04.
Ch. 03, § 26.
Trustee in cer-
tain cases to be
appointed by
judge of pro-
bate, &c.
1851, 290, § 2.
See § IH.
Ch. 03, § 25.
it slinll be completecl ; and shall transmit to the clerks of the several
towns in which said hip;hway lies a description of the location and
bounds thereof within the limits of such towns respectivel}', which de-
scription shall be recorded within ten days by the clerk in a book of
records kept in the town for tliat purpose. They sliall also allow the
owner of the land a reasonable time to take off his timber, wood, or
trees, which shall be expressed in their return. If he shall not remove
the same within the time allovved, he shall be deemed to have relin-
quished his right thereto for the benefit of the town.
Sect. 14. If damage shall be sustained by any persons in their prop-
erty, by the laying out, altering, or discontinuing, a highway, the com-
missioners shall estimate the amount, and in their return state the share
of each separately ; but they shall not order such damages to be paid,
nor shall a person claiming damage have a right to demand the same,
until the land over which the highway or alteration is located has been
entered upon and possession taken for the purjiose of constructing it.
But when a ]ierson so claiming damages has been put to trouble and
e.\]icnse by the proceeding.s, the commissioners shall allow liim full in-
demnity therefor, instead of the damages awarded, altliough no entry is
maile upon his land.
Sect. 1-5. When specific rejiairs are ordered to be made in a high-
way which occasion dam.age to any person or jiroperty, the commission-
ers shall estimate the same and make return thereof; and at their first
meeting after the repairs are completed, they .shall order the damage to
be paid. But if the order for repairs does not go into effect, or is re-
scinded or altered, they shall order only so much of the damage to be
paid as in their opinion has been actually sustained.
Sect. 16. In estimating the damage sustained by laying out, locating
anew, altering, or discontinuing, a highway, or by an order for sjiecific
repairs, regard shall be had to all the damages done to the i>nrty, whether
by taking his property or injuring it in any manner ; and there shall be
allowed, by way of set-off, the benefit, if any, to the property of the
party by reason thereof.
Sect. 17. Vv'^hen persons having a claim for damages sustained in
their property by the laying out, alteration, or discontinuance, of a high-
way, have different or separate interests in the pr<i]ierty, so that an es-
tate for life or for a term of years in the same belongs to one j^erson,
and the rem.-iinder or reversion in fee belongs to another, enth-e dam-
ages, or an entire sum as indemnity, shall be assessed in the same man-
ner as is 2>rovided in other eases, without any a]i]iortionment thereof;
and the amount of such damages or indemnity shall be jiaid over to or
be recoverable by any person whom the jiarties owning the several in-
terests ma_v ajipoint, to be invested by him, when jiaid o\er or recovered,
in bond, mortgage, or other good securities, and held in trust for the
benefit of the jjarties according to their several interests ; the annual
income to be paid over to the person in whom was the estate for life or
term of years, for the period such estate might have continued, and the
remainder after the termination of such estate to be paid over absolutely
to the jicrson that was entitled to the reversion in fee, or to his heirs or
devisees.
Sect. 18. If any of the persons h.aving an interest in such property
shall, by reason of legal disability, be incapacitated from choosing a
trustee, or if the parties in interest cannot agree upon a choice, the pro-
bate court of the county in which the property is situated, upon appli-
cation, shall appoint some suitable person as trustee. Said trustee shall
before entering upon the duties of his trust give a bond to the judge of
probate and insolvency, with sufficient surety or sureties, in such jienal
sum as the judge directs, conditioned for the faithful performance of his
duties as trustee under the provisions of this and the preceding section ;
Chap. 43.] layixg out and discontinuance op ways. 235
which bond upon breach of its condition may be put in suit by order of
the ])robate court for the use and benefit of the persons interested in
the trust propert}', in hke manner as is provided in case of bonds given
by executors or administrators.
Sect. 19. A party aggrieved by the doings of tlie commissioners, Party a^griev-
cither in laying out, locating anew, altering, or discontinuing, a high- |d to have jury,
way, or in the estimation of his damages occasioned thereby, or by rea- R. s. 24, §13.
sou of any specific rej)airs ordered by the commissioners, or in the sum -..'i piHc.'lis.
awarded him as indemnity, may, on application in writing to the com- :"J,''l'''4.ri*''
missioners, have a jury to detennine the matter of his comjilaint; unless il- Met, 123.
he agrees with tlie parties adversely interested to liave the same deter- 'I p"^{[" Sj',
mined by a committee to be appointed under the direction of the com- mfush. isi.
• • ^ i i 5 Gray, 65.
missioners. ■'"
Sect. 20. Such jury or committee shall not revise the judgment of Powers of jury,
the commissioners as to the common convenience and necessity of lay- n' vj,.f'i--^'
ing out or altering the way in question ; but they may make any altera- t'-' I'i'k! -m).
tions tlint are jirayed for "between the teimini as estabUshed, so far as sGrayfbs'.
they think them necessary or proper.
Sect. 21. Applications for a jury to revise the judgment of the com- Appiieations
missioners in laying out, locating anew, altering, or discontinuing, a vi'se'iooation^
highway, or in ordering s])ecific repairs to be made, may be received i-c., when acted
and acted upon at the meeting at wliich the order therefor is adopted, i"'s.24, §§8, u.
or at the next regular meeting thereafter, but not afitenvards. scush. aw.
Sect. 22. Applications for a jury to reWse the judgment of the com- to revise a»-
missioners in the assessment of damages merely, or in the award of in- fiam""™* when
demnity, maybe made at any time within one year from the time of the to be made,
adoption of the order; or, if witliin that time a suit shall be instituted iwVsii.'jV.*'
wherein the legal eft'ect of the proceedings of the commissioners in lay- jj*^-' 7'!J!J"
ing out, locating anew, altering, or discontinuing, a highway, is drawn s Cu'sh. 302.
in question, such a])pl!cation may be made at any time within one year ^Oray, 31.
after the final determination of tlie suit.
Sect. 23. If two or more ]iersons apply at the same time for joint .spvenii appiic*-
or several damages or indemnity, they may join in the same petition to J.onlTiiilwi'by
the commissioners; and if several ajiplications are pending at the same ?;'"Jf iV''?' ,
time before the commissioners for a jury to determine any matter re- ■sJrick.'-Mi.'
latiuiT to the lavinsj out, alteration, or discontinuance, of a liitrhwav, or }!^n}':tV^a
, " ,. '^ • 1 • , , ,, i,'^ ,' .; tush. .Mo.
the assessment 01 damages or indemnity, they shall cause all sucli ap-
jilications to be considered and determined by the same jury ; and tlie
costs shall be taxed either jointly or severalty, as the court to which the
verdict may be returned shall determine to be equitable.
Sect. 24. No jury shall be ordered, nor committee ap]iointed, until Recognizance
the petitioners give recognizance to the county for the jiayment of all easo™^'"'"^'
the costs and expenses which may arise in case the jury or committee u. s. 24, §41.
shall not alter such liighwaj', nor increase the damages or indemnity al-
lowed by the commissioners.
Sect. 25. No petition for a jury shall abate or be defeated by the Petitions not to
death of the petitioner ; but the executor or administrator, or the heirs onMrtS's''"'*
or devisees if they shall be the persons interested, may ajipear and pros- K. S. 24, §16.
ecute such petition, or present a new petition, in the same manner and
with the same eft'ect as the original jiarty might have done.
Sect. 26. If, upon the death of one or more of several petition- Exeoutors, &c.,
ers for a jury, the executors or administrators, heirs or devisees, of such appcar'"siirvi-
petitioners, after due notice that such petition is iiendinsx, necrlect to ap- vorsmaypro-
pear or to prosecute, the survivnig jietitioners may proceed in the same k. s'. 24, §17.
manner as if they only had made the a]i]ilieation.
Sect. 27. The warrant for a jury sliall be directed to the sherifi" of warrant for
the county or his deputy, who is disinterest eil, or to a coroner, as the r"^s' w's is
commissioners shall order, requiring him to summon a jury of twelve " Pick. 209.
men to hear and detennine the matter of complaint set forth in the 4Cush.'29i.
236
LAYING OUT AXD DI?CONTIXaANCE OF WATS. [ChaP. 43.
Jury, how auj
whence sum-
muued.
K. S. 2+, § 19.
13 Met. 310.
i Cush. iOl.
Jurors to pay
tiue for iiou-
atteudimce.
K. S. 24, § 20.
Talesmen may
be returueii.
K. S. 24, 521.
Jurors to be
sworu.
1!. S. 24, § 22.
Commissioners
may appoint
person to pre-
side at trial.
K. S. 24, § 2.3.
1 Cush. 4S0.
Pnties of pre-
eiilinj^ officer.
K. S. 24, §§ 24,
25.
II Pick. 274.
Cominissioncrs
to take uotit-e
on behalf of
their eonuties.
may appuiiir
agent to attend
jury.
K.S.24,§§26,
Notice of tri:d.
K. S. 24, § 28.
Officer's feos.
K. S. 24, § 29.
Duty of jury.
E- S. 24, § 30.
petition, .and to decide all siic-li matters as sliall legally come before
tbeiu on the hearing.
Sect. "JS. The officer who receives the warrant shall in writing
require of the selectmen of the three nearest towns not interested in
the question, if there be so many in the county, to return a number of
jurors, not less than two nor more than six fi-om any one town unless in
case of necessity; and the jurors shall be drawn, summoned, and re-
turned, as in other cases, except that the jurors need not be summoned
more than twenty-four hours before the time appointed for their at-
tendance.
Sect. 29. If a person so summoned as a juror fails to attend wfthout
sufficient cause, he shall pay a tine not exceeding ten dollars, at the
discretion of the court to which the verdict is returned, to be jjaid into
the county treasury.
Sect. 30. If by reason of challenges or otherwise there is not a full
jury of the persons summoned, the officer who summoned the jury, or
in his absence the officer attending the jury, shall return some suitable
person to supjdy the deficiency.
Sect. 31. The jurors sliall be sworn to make a just and true apjiraise-
ment of the damages sustained by the complainant, or of the indemnity'
to which he is entitled, ami well and truly to try all such other matters
as shall be lawfully submitted to them under the complaint, and to give
a true verdict therein, according to law and the evidence given them;
but when no estimate of damages or indemnity is required to be made,
that jiart of the oath sliall be omitted.
Sect. 32. The commissioners, when they issue their warrant for a
jur}-, may at the request ot either ])iirty appoint some suitable person to
preside at the trial, in which case the jury may be attended by a deputy-
sheriff; but if no person is ap])ointed, the sherilF of such county shall
preside; or, when the sheriff is interested or unable to attend, a coroner
of the county shall preside.
Sect. 33. The person presiding at the trial shall keep order therein,
and administer the oath to the jurors and witnesses ; shall decide all
questions of law arising on the trial which would be proper for the de-
cision of a juilge: shall direct the jury uiuin any question of law, when
requested by either party; and shall when requested certify to the
court, with the verdict, the substance of any decision or direction by
him given.
Sect. 84. When a petition for a jury is presented, the commissioners
shall, on behalf of the county, t.ake notice of the same ; and may in be-
half of the county agree with the petitioners to substitute a committee
in the place of a jury, as before provided. They shall, when they think
it necessary, appoint some suitable person to attend u]ion the jury or
the committee, as an agent for the county, who shall be allowed therefor
three dollars a day ami ten cents a mile travel.
Sect. 35. The officer by whom a jury is summoned shall give season-
able notice of the time an<l ]ilace of their meeting to the person ap-
pointed to presiile at the trial, and also to the person apjiointed agent
for the county, if such ap]i()iiitments have been made. Wiien a com-
mittee is substituted for a jury, the notice to the agent shall be given
by the person first named on the committee.
Sect. 36. The officer shall receive for summoning the jurors four
cents a mile for all necessary travel, ami one dollar and titty cents for
each day he attends upon them. lie shall certify to the court his own
travel and attendance, and also that of each juror.
Sect. 37. The jury shall view the premises when they think ]iroper,
or upon the request of either party, and shall hear and examine all legal
evidence laid before them, with the observations of the parties or their
counsel thereon. AU the jurors shall sign the verdict which may be
Chap. 43.] laying out and discontinuance of ways. 237
agreed ii]ion, which shall be encloserl in a sealed wrapper, with an
indorsement thereon expressing what it contains, and delivered so in-
dorsed to the officer having charge of the jury.
Sect. 38. If the interest or right of a complainant in or to the real Title of lands
estate alleged to be damaged by the laying out, locating anew, altering, tnw"""esp<!<:tB
discontinuing, or making specific repairs upon, a highway, is drawn in fiamagcs.
question on such hearing, the jury may hear and dctei-mine the question ' '"* '
of interest or right so far only as resjjects the damages of such com-
plainant.
Sect. 39. A jury assessing damages may extend the time allowed .Turv may ex-
by the commissioners for the owner of the land to take off the timber, Inovin"'treo"'^
wood, trees, or other property. If he neglects to take off the same *o.
within the extended time, he shall be deemed to have relinquished his oGray,'44. '
claim thereto for the benefit of the town, as before provided.
Sect. 40. When a jury is ordered, they shall be summoned and give verdict or re-
their verdict within three months ne.Yt after the date of the order. The t',',nV<\may'be
verdict shall be returned to the ne.xt tenn of the superior court to be sf* ?8We-
held for the same county, and the court shall receive it, and adjudicate 5 Srass.'435. '
thereon, and may set it aside for good cause. If the matter is deter- J ^""jj- ^^2-
mined by a committee, the re]>ort of the committee .shall be made within
three months after their appointment, shall be returned to the next
term. of the court held after making the same; and like proceedings
shall be had thereon as upon the return of a verdict.
Sect. 41. If the jury do not agree uiion a verdict, or if the proceed- Complainant
ings are set aside upon a writ of certiorari, the complainant shall be ',',",'V"'' 'l'^''!"^'
entitled to a new jury from tune to time until a verdict is rendered and rinritriii, may
established; but he may at any stage of the proceedings, upon such tTiai.'&i? ""
terms as the court shall order, waive liis right to a trial by jury and Jopi k''M^'
accept the damages assessed by the commissioners.
Sect. 42. The clerk of the court shall certify such verdict or report, cicrks of courts
with the adjudication of the conrt thereon, to the commissioners at their Jner&'c'' to "^
next meeting after the adjudication shall be had; and if the verdict or ionimis»ioncrs.
report has been set aside, the commissioners, on application therefor, tiu'rwrn.'"""
shall order a new jury, or the parties may agree upon a new commit- us. 24, §36.
tee ; and thereupon like proceedings shall be had as are herein before
provided.
Sect. 43. The verdict or report returned to the court as before verdict, &c.,
provided, and accepted and recorded, shall be conclusive upon the i°."s!"4'Y37.
parties. 20 Pick.'20o.
Sect. 44. If the jury or committee do not alter the highway, nor costs how
increase the amount allowed bv the commissioners, as damages or in- pairt-
demnity, the costs incurred by reason of the ajiplication for the jury or ' " '' '
committee shall be ])aid by the persons who recognize for the payment
of costs ; otherwise all such costs shall be paid from the county treasury.
Sect. 4.5. If a question arises with regard to the taxation of costs, in Questions of
the proceedings and hearing before a jury or committee, it shall be de- Ijo'if^ij""^'^'"
termined by the court to which the verdict or report is returned; and U.S. 24, §39.
the court may also determine the compensation of the committee and
of the person who presides at the trial.
Sect. 46. When the commissioners order a jury, or a committee is Highways not
agreed u|)on, to consider and determine with regard to the laying out, workeTor's'hut
alteration, or discontinu.ance, of a highway, or specific repairs upon an up, until, &e.
existing highway, the highway so laid out or altered shall not be opened isau.'sKi.'
or worked, nor shall the highway so discontinued, or upon which specific
repairs are ordered, be shut up, until after the meeting of the commis-
sioners at which the verdict of the jury or report of the committee, with
the adjudication of the court thereon, is certified to them as before
directed ; and thereupon the commissionei's may allow such further time
as they think reasonable for making and completing such highway, and
238
LAYING OUT AND DISCONTINUANCE OF WAYS. [ChAP. 43.
Expenses, dam-
cij^es, &c., iraid
by couuty.
li. S. 24, §§3S,
42.
1M2, 86, §§1,2.
2 Gray, 274.
Kxpcnses paid
by potitioULTS.
It. S. 24, § 4:j.
3 Met. 314.
Highways,
how made
wlien towus
neijlect ; ex-
pense ciiarj^ed
to towus.
U.S. 24, §44.
5 Greenl. 254.
Warrants to
issue against
towns neglect-
ing to pay.
11. S. 24, ■§ 4J.
See § 09.
Expenses may
be p:ud by
county.
11. S. 24, § 4fi.
1841, 105, § 1.
6 Met. 321).
Commissioners
to certily wlieu
Iliglnvay is
eoinpleted.
K. S. 24, § ir.
13 Pick. 22j.
Several parties
may go to the
same jury.
11. S. 24, §48.
1851, 290.
5 Met. 372.
SCush. 81.
7 Cush. 5.i.i.
10 Cush. 385.
for the removal of the timber, wood, trees, or other property, if an)', from
the premises.
Sect. 47. When a highway is finally laiil out, and established,
altered, or discontinued, or specific repairs are ordered, on an existing
highway, all the e.vpenses of the proceeding, and also all damages allowed
tlierefor, and all sums awarded as indemnity, shall be paid by order of the
commissioners by the county, e.xcept as liereiii otherwise provided.
Sect. 48. If a highway is not finally laid out and established, located
anew, altered, or discontinued, nor specific repairs ordered, all said ex-
penses shall be paid by the persons who have recognized therefor. If
they refuse or neglect to pay such expenses, or to pay the costs incurred
by reason of the application for a jury or committee, when required by
the commissioners, such expenses or costs shall be ordered by the com-
missioners to be paid from the county treasury ; and thei'ea]ion the com-
missioner.s, after giving due notice to the persons who so recognized,
sliall issue a warrant against them or some of tliem (unless sufficient
cause is shown to the contrary) for tlie amount ordered to be paid
by tliem, with the further costs of the notice and warrant, and the
money shall be collected as in other cases, and paid into tlie couuty
treasury.
Sect. 49. After a highway has been establislied by the commission-
ers, if a town whose duty it is to make such higliway, or a part thereof,
shall not make and complete the same within tlie time and in the man-
ner prescribed, and to the acceptance of the commissioners, they shall,
as soon as may be tliereafter, cause such higliway to be completed as
aforesaid ; and at their next meeting they shall direct the expenses and
charges of completing the same to be paid out of the county treasury,
and shall order notice thereof to be given to each town that is de-
linquent, stating the proportions which they are respectively required
to pay.
Sect. 50. If a delinquent town does not pay its proportion of the
expenses and cliarges before the next regular meeting of the commis-
sioners, with interest thereon at the rate of ten per cent, a year from
the time the same is paid from the county treasury, the commissioners,
unless sufficient cause is shown to the contrary, shall issue a warrant
against such town for the sum it was ordered to pay, with tlie interest,
and the further costs of such notice and warrant; and the same sliall be
collected as in other like cases, and paid into the county treasury.
Sect. 51. When a highway is laid out or altered, the commissioners,
after the same is completed, may order the whole or part of the expenses
incurred liy any town in making or altering the same, to be paid out of
the county treasury.
Sect. 52. Upon notice to the commissioners that the part of such
highway lying witliiii the limits of a town has been com]ileted according
to their directions for making the same, they shall view and carefully
examine tlie same throughout; and if they find such highway well
made, they shall so certify to the county treasui-er, who shall thereupon
pay to such town the sum so allowed.
Sect. 53. When there shall be several parties, having several estates
at the same time, in land or buildings, other than and ditierent from the
estates and interests for which provision is m.-ule in section seventeen,
and the land or buildings are taken or otherwise damaged, in whole or
in ]>art, by the laying out, locating anew, altering, or discontinuing, of a
highway, or making specific repairs thereon, and one of such parties, by
petition as provided in this chapter, aiijilies for a jury to ascertain his
damages in the jiremises, all the other parties so interested may become
parties to the proceedings under such petition, and the damages of all
of them may be determined by the same jury, in the manner inovided
in the five following sections.
Chap. 43.] laying out and discontinuance of ways. 239
Sect. 54. Upon such application of a party thus interested, the com- Notice to pcr-
missioners shall order the petitioner to give notice thereof to all the to'i^come'paj?
other p.irtios interested, bv servincr each of them, fourteen days at least tifs.
before their next reii;ular meeting, with an attested copy of such petition ' ' " '
and the order thereon, that the other parties may if they see cause
apjiear at the next meeting and become parties to the proceedings
under the ])etition ; and at tlie next meeting a jury shall be ordered as
before provi<led in this chapter, who shall, under the direction of the
])erson ])residing at the trial, ]iroceed to hear all the persons who have
become |)arties to the proceedings.
Sect. 55. If on such hearing the jury find any of the parties entitled verdict to ap-
to damages, they shall assess the same in the following manner, to wit : )',"*'™ ''"'""
they shall first find and set forth in their verdict the total amount of the if- S- 24> §50.
damages sustained by the owners of such land and buildings, estimating
tlie same as an entire estate and as if the same were the sole )iroperty
of one owner in fee simple; and they shall then ajiportion the total
amotmt of damages among the several parties whom they find to be
entitled, in proportion to their several interests and claims and to the
dam.ages sustained liy them respectively, and set forth such a]i]iortion-
ment in their verdict; and if they find any one or more of said jiarties
not to have sustained damage, they shall set forth in their verdict that
they award no damages to such party.
Sect. 56. The verdict, if accepte<I, shall be conclusive upon all par- conclusive on
ties interested who shall either ha\e had notice as aforesaid, or by con- a" «i'o ijave
. , ,. ' •' notice, &c.
sent nave become parties to tlie proceechngs. U.S. 24, §51.
Sect. 57. EacJi party recovering damages shall recover his several Costs of par-
costs ; and each party not recovering damages shall be liable for costs i^ s''24^§^f'*'
to the town or other corporation of which he shall have claimed dam-
ages, in like manner as if the proceedings were had under his several
jielition ; but if a party shall fourteen days before the trial give notice
in writing to the tt)wn or other corporation that may be liable for dam-
ages, that he relinquishes all claim for damages, and shall also before
the trial file in the case a rehnquishment of such claim, he shall not be
liable for costs in the case.
Sect. 58. If a jierson, having notice as aforesaid, neglects to appear Party negiect-
and become a party to the proceedings in court, he shall be forever {"l.rbarrecT'
barred from making an appUcation for damages. i'- s. 24, § 53.
TOWN WAYS AND PRIVATE WATS.
Sect. 59. The selectmen of the several towns may lay out or alter Townwnys.&c,
town ways for the use of their rcs])ective towns, and jirivate ways for l^'^^.'S,' f'oo!
the use of one or more of the inhabitants thereof; or may order specific is4-', sb.
repairs to be made upon such ways.
Sect. 60. A town, at a meeting regularly called for the purpose, may iiow discon-
discontinue any town or private way. i!" s?24, § 70.
Sect. 61. No town way or private way shall be laid out or altered Notice to be
unless, seven days at least previously thereto, a written notice of the men'beio/e 'fay-
intention of the selectmen of the town to lay out or alter the same is ingout, &c.^
left by them, or by their order, at the usual ]ilace of abode of the own- ' •-'»'•
ers of the land over which such way is proposed to be laid out or
altered, or unless such notice is delivered to such owner in person or to
his tenant or authorized agent. If the owner has no such place of abode
in the town, and no tenant or authorized agent therein known to the
selectmen, or itj being a resident in the town, he is not known as such to
the selectmen, such notice shall be posted up in some public place in the
town seven days at least before the laying out of such way.
Sect. 62. If damage is sustained by any jierson in his property by Damages from
the laying out, alteration, or discontinuance, of a town or private way, laying out, &c.,
240 LAYING OUT AND DISCONTINUANCE OF WAYS. [CuAP. 43.
howdctcrmined or by sjiccific repairs wliieli mny be onlered tliereon, he shall receive
K!s^2iV§08. such compensation as the seleetinen siiall determine, to be assessed and
1842,8(1. ^ awarded in the inajiner provided for the assessment and award of dani-
5 Gray, 31?' ages by county commissioners in laying out highways ; which damages
shall be paid by the town if it is a town way, but if a private way, then
by the person for whose use it is so laid out or altered, or for whose
benefit specific repairs are ordered, or on whose ai)i)lication it is discon-
tinued, unless the selectmen deem it reasonable that ])art of the damage
shall be ]y.nd by the town and the resi<lue by said persons, in which case
they shall make an order specifying the sums to be paid by each.
Damages, when Sect. 63. The damages so awarded shall not be ])aid until the land
indemnity. i'^ entered upon and possession taken for the purjiose of constructing
1S42, sii. such way or alteration, or until the specific repairs which have been
1847, 2o9, §4. 1 -I •' 1 A 1 -r • ■ 1. * 1 -J.-*! -c
12 Met. isj. orilereu are commenced. Ana it possession is not taken, or it the specinc
repairs are not made, the party, instead of the damages awarded to
liim, shall be entitled to indemnity to be assessed by the selectmen in
the same manner that indemnity is awarded by county commissioners
in like cases,
if interests are Sect. 64. If there are separate or different interests in lands or
1851T290.' buildings which are so taken or injured, of the character and descrip-
1855, 10. tion mentioned in sections seventeen and eighteen, the damages shall be
assessed by the selectmen in the mode therein provided for an assess-
ment by the commissioners.
Location, (tc, Sect. 65. Except as is hereinafter provided, no town way or private
beforifhiym^'''' ^^''^.T I'^i'^ o^t Or altered by the selectmen, shall be established until such
out. ° lavincr out or alteration, with the boundaries and admeasurements of the
2 Mass.3ii!i. " way, is reported to the town, and accepted and allowed at some public
3 G"^r°i' 43S meeting of the inhabitants regularly warned and notified therefor, nor
9 Picic. 4iw. ' unless such laying out or alteration, with the boundaries and admeas-
9 Met. -t.*!' urements, is filed in the office of the town clerk seven days at least
before such meeting.
CommisBioners Sect. 66. When the location or alteration of a jirivate way is desired
"rtaiu^cas'e's!" '" ^ town for the use of one or more persons, not being inhabitants
1837, iw. thereof, or when the location or alteration of a private way hing partly
in one town and partly in another is desired, the county commissioners
may cause such way to be located or altered, proceeding therein as is
provided where the selectmen refuse to lay out a private way.
If selectmen Sect. 67. If the Selectmen of a town unreasonably refuse or neglect
rrfusc'"&c.''''' f" ''^y o^''' 01" alter a town way or private way, when requested in writ-
p.arty ni;iy ap- ing by one or more of the inhabitants thereof; the commissioners, on the
skmers."""'""^ jietition in writing of a person aggrieved presented at any regular meet-
E.s. 24,§7i. ing within one year, may cause such way to be laid out or altered,
3 Met. 312. ascertain the place and course of the way, and estimate the damages
i2*Met*-'()s sustained by any person by reason thereof Such damages with all costs
7 Cush. ho. of the proceedings shall be paid by the town, if it is a town way. If it
11 Cush. 1S9. j^ .J private way, the damages and costs, or such part thereof as the com-
missioners judge reasonable, .shall be paid by the persons for whose use
it is laid out or altered, and the residue, if any, by the town.
AppeaiiftoiTOs Sect. 68. If a town unreasonably refuses or delays to approve and
ways" *° "°'^'^P* allow a town way or private way laid out or altered by the selectmen,
K. s. 24, § 72. and to put the same on record, any jierson aggrieved thereby may within
2 ji^i'^g™ iif/' one year thereafter apply by petition in writing to the commissioners;
3 Mass. iss. and the commissioners, unless sufficient cause is shown against such ap-
plication, may ajiprove and allow of the way as laid out or altered by
the selectmen, and direct the laying out or alteration and acceptance to
be recorded by the clerk of sii"h town, which shall have the like effect
as if accepted by the town and recorded.
Jnr'&c.'"iiv Sect. 69. If a town in which a town way or private way is laid out,
commissioiiers altered, or .approved, in jjursuance of the three preceding sections, shall
Chap. 40.] laying out and discoxtixuance of ways. 241
not make and complete the same in the manner prescribed by the com- nrp not com-
missioners, and to their acceptance, within six months from the time Bix'mont'iVs'"
when the same is hud out or approved, or within the time directed by *''-i ''""y may
the commissioners, they shall, as soon as may be thereafter, cause such assos/town!
way to be completed, and at the next meetiii<; shall direct the expenses isw, 222, §§ i, 2.
and charges of comiileting the same to be paid out of the county treas-
ury, and order notice thereof to be given to the delinquent town, stat-
ing the amount of such expenses and charges. If the town does not
before the next regular meeting of the commissioners pay the same,
with interest thereon at the rate of ten per cent, from the time when
the same was paid by the county treasurer, they [shall] cause the same
with all further costs to be collected in the manner prescribed in section
fifty-
Sect. 70. Upon the aji])lication in writing of any person aggrieved irtowns refuse
by the refusal of a town to discontinue a town way or private way, the U" ''."'S'J"c'?^'''
•^ . . , , IT • * 1 -^ K. b. 2-i, § ,3.
commissioners may order such way to be discontmued.
Sect. 71. When a town way has been laid out or altered by the Wh™ towns
commissioners, it shall not within two years thereafler be discontinued &""'"' "^ ""*'
or altered by the town; and when such way has been discontinued by ^t^.^*]]'*'
the commissioners, the town shall not within two years thercatter lay
out the same again.
Sect. 72. When an application is made to the commissioners in Recognizance
consequence of the refusal or neglect of selectmen to lay out or alter a ["m.™"'**' ^°'
private or town way, or in consequence of the refusal or neglect of the H- s. 24, § 75.
town to accept and allow such way wlien laid out or altered by the ii'cuBh.'isg.
selectmen, or when sucli a])plication is made for the discontinuance of
a private or town way, the commissioners shall cause a like recognizance
to be given to the county as is directed in this chapter with regard to
applications for highways ; and like proceedings may be had on such
recognizance. They sh:ill also cause notice to be given, before they pro-
ceed to view, or to hear the parties, as in the case of highways.
Sect. 73. A person aggrieved by the lapng out, or by the alteration Parties may
or discontinuance, of a towii or private way, or hj an order for specific coVnminee"to
repairs, or by the assessment of his damages, or compensation by way asortain dam-
of indemnity, may have the matter of his complaint determined by a ifuieastocosts.
jury, which m.ay be applied for at any time within one year after such ks. 24, §§08,
laying otit, alteration, order for repairs, discontinuance, or assessment of l^42, so.
indemnity ; or if a suit is instituted within one year wherein the legal 3"'ji'',(~'^J2
effect of the proceedings is drawn in question, such application fur dam- lu. Met. 4115.
ages or indemnity may be made at any time within one j'ear after the 5 ti"ly\ si^'es,
final determination of such suit. Upon such application, an order for *-'■„. . .
a jury sliall be made by the commissioners, (or by agreement of the "
parties the matter may be determined by a committee to be ajipointed
by the commissioners;) and the jury or committee shall have the same
powers, an<l the proceedings in all respects shall be conducted in the
same manner, as before provided in like ease with respect to highways.
If the damages are increased or the way is altered, the damages and all
charges shall be paid by tlie town ; otherwise the charges arising on such
application shall be paid by the applicant or person recognizing as
aforesaid.
Sect. 74. When a town or private way is laid out or altered by the owner may rc-
selectraen or commissioners, they shall in their report or return thereof move trees, ic.
specify the manner in which such way, location, or alteration, shall be relinquishes"'^'
completed, and transmit to the clerk a descrij)tion of the location and Jj^J,'';,, 55 , ,
bounds thereof, which shall, within ten days, be recorded by him in a iNwi 132, §§i,"
book of records ke])t for that purpose ; and they shall allow the owner |'^,J-, gj
of the land through which the way may pass, a reasonable time to take
off his trees, fences, and other projierty, which may obstruct the build-
ing of such way. If he neglects to remove the same -within the time
21 31
242
LAYING OUT AND DISCONTINUANCE OF WAYS. [ChAP. 43.
tend time for
removal.
IS4S, «S, § 3.
Towns not to
coDtest lejjality
of wav8.
R. S. ii, § -?
5 Gray, 05.
Powers of
board of alder-
men of Boston.
K. S. 2-1, § 54.
IM2, m.
1854, 448, §33.
Applications
for laying; out
&c., ways, how
made.
Parties may ap-
ply lor jury to
superior court.
View to be
granted.
R. S. 24, § 55.
1S4'J, 200.
18611, I'JI).
20 Pick. 201.
Commissioners
of Jliddlespx,
powers of, in
Suffolk. War-
rant for jury, to
whom directed.
Keturn of ver-
dict, &c.
1851, 331), §§1,2.
1853, 295.
allowed, he shall be deemed to have relinquished liis right thereto for
the benefit of the town, if the way be a town way ; and if it be a jirivate
way, for the benefit of such person as the selectmen or commissioners
shall determine.
Sect. 76. If a jury is ordered to assess the damages done by the
location or alteration of such way, they may extend the time for the
owner of the land to remove his trees, fences, and other property ; and
if he neglects to remove the same within such extended time, he shall
be deemed to have relinquished his claim thereto.
Sect. 7G. No town shall contest the legality of a way laid out by
such town and accepted and recorded as provided in this chapter.
■WATS IN THE COUNTY OF SUFFOLK.
Sect. 77. The board of aldeiTiien of the city of Boston shall within
said city have similar powers and perform like duties as are exercised
and performed by the commissioners of counties in respect to the laying
out, altering, and discontinuing, of ways, and ordering specific re]jairs
thereon ; and shall assess damages therefor, and award indemnity for
damages sustained by reason of such laying out, alteration, discontin-
uance, or order for specific repairs, in like cases and in the same manner
as commissioners are required to perform similar duties.
Sect. 78. Applications for laying out, altering, or discontinuing, a
way in said city, may be made, and notice given, and proceedings had
thereon, in such manner and umier such regulations as shall be pre-
scribed by any ordinance of the city for that puipose.
Sect. 79. A party aggrieved by the doings of the board of aldermen
in the cases mentioned in the preceding sections, may aj^ply for a jury
by petition to the superior court, at ajiy term thereof which shall be
holden within one year after the passage of the order or proceeding
upon which the application is founded, or if the a]iplication be for the
assessment of damages or indemnity merely, then within one year after
the final determination of any suit wherein the legal effect of the pro-
ceedings of the bo.ird of aldermen is drawn in question ; and thereupon
said court shall, after due notice to the city, order a trial by jury to be
had at the bar of the court in the same manner in which other civil
causes are there tried by the jury, and if either party request it, the
jury shall view the place in question.
Sect. 80. The county commissioners of Middlesex shall have and
exercise the same powers and duties in the city of Chelsea and in the
towns of North Chelsea and Winthrop in the county of Suiiblk, in
relation to highways and other ways, as they have and exercise in the
several towns in the county of Middlesex, except so far as may be
otherwise provided in the charter of the city of Chelsea ; and similar
proceedings may be had for the assessment and award of damages and
indemnity. But in case a jury is applied for or committee agreed upon
in any matter relating to a waj^, the warrant therefor shall be directed
to the sheriff or his deputy, or to a coroner, of the county of Suffolk,
and the proceedings thereon shall be the same as are had ujion such
warrants in other counties. The verdict of such jury as well as the
report of such committee shall be returned to the superior court.
[ways in cities.]
Provisions of Sect. 81. The provislons of the foregoing sections of this chapter,
chapter extend go far as applicable, shall aiiply to the several cities and towns, except
to cities. ,11, . ' .1^ 1 1 • , 1 • 1 ...
as may be otherwise provided by city charters and acts in amendment
thereof.
Chap. 43.] laying out axd discontixuaxce of ways. 243
PEDICATION OF WATS.
Sect. 82. No way opened .ind dedicated to the public use, which has ways not
not become a public way, shall be chargeable upon a city or town as a fes"'^^?.''''' °"
highway or town way, unless the same is laid out and established by '^"■^o'iiH-
such citv or town in the manner prescribed by the statutes of the com- 5 Gray! rs.""
monwea'lth. ' ^""y' ^^■
Sect. 83. The mayor and aldermen and selectmen shall, whenever selectmen, &c.,
the public safety demands it, direct and cause the entrances of such '"ivs'^o/IiSu-
ways entering on and uniting with an existing public highway, to be tioiitiic public,
closed up; or may by other sufficient means caution the public against uSt,, ios, §§ 2, .%
entering upon such ways ; and if any such way shall not be closed, or
sufficient notice given that the same is dangerons, the city or town shall
be liable for damages arising from defects therein in the same manner as
if it had been duly laid out and established.
Sect. 84. In cities in which the city council, and in towns in which Abutters, when
the inhabitants at a legal meeting, have accepted the provisions of this J" B™s'sessld '
and the two following sections, if a street or way has been or shall lor expense, if
be opened over private land by the owner thereof, and ]ierinitted to is5j,3i5"Y§i,4.
be used by the public before the same has been accepted and laid out
according to law, the owners of the lots abutting thereon shall gi-ade
such street or way at their own expense, in such manner as the safety
and convenience of the public shall in the o])iiiion of the mayor and
aldermen or selectmen require. If the owners of such abutting lots,
after reasonable notice from the mayor and aldermen or selectmen,
neglect or refuse so to do, or to close the street from public use, the
mayor and aldermen or selectmen may cause the same to be graded, aHd
after due notice to the parties interested shall assess the ex])ense thereof
upon the owners in such proportion as shall be judged rcasonalde. All Assessments a
assessments so made shall lie a lien upon the abutting lands in the same ^'^^'
manner as taxes are a lien u])on real estate.
Sect. 85. The mayor and aldermen or selectmen may fix and estab- Grade, how es-
lish the grade of a street or way so opened and used, and cause a jilan onJvher^cicp'M^
of such grade to be deposited in the office of the city or town clerk. ite<i.
And all persons making improvements upon the lots abutting thereon, *"■' °'**'*"
after the grade has been established and recorded, shall conform to the
grade. But nothing contained in this and the preceding section shall
affi^'ct any agreements heretofore made respecting such streets or ways,
between the owners of lots and the city or town.
Sect. 86. The grading of such street or way by the owners of the Grading, not a
land, in jiursuance of the notice by the mayor and aldermen or select- fa'^uSimont of
men, shall not be construed to be a dedication of the same to the public grade not an ac-
use, nor shall the establishment and record of the gi-ade, or the grading strwts^notto
thereof bv the mavor and aldermen or selectmen, constitute an accetit- be obstrueted
11 1 11- -r* 1 1 11 without con-
ance 01 the same by the city or town. But no such street or way shall sent, &e.
be dug up or obstructed without the consent of the mayor and aldermen l^'^' ""' ^^ '' -'
or selectmen.
[ascertaining location.]
Sect. 87. When ten or more freeholders represent to the mayor and if location of
aldermen of a city or selectmen of a town, that the exact location of a tlm, 'selectmen,
street, road, or way, over which they have jurisdiction, cannot readily *'•;,' '2^^"'""
be ascertained, they shall make investigation thereof, and if it appears lUu', 132, §4.
that the representation is correct, shall, after giving the notice required
in laying out a similar road or way, proceed to ascertain the correct
location, erect the necessary bounds, and file a certificate thereof, for
record, as provided in sections seventy-four and eighty-eight.
244
REPAIRS OP WAYS AND BRIDGES.
[Chap. 44.
Commisfiion-
ors, &c., to
mark termini
Hud angles of
ways. IVnalty
for nei^lect.
18*8, i'>2.
1855, y5.
7 Gray, 405.
ERECTIOJ^" OF MONUMENTS.
Sect. 88. The county commissioners, mayor and aldermen, and select-
men, shall cause permanent stone bounds not less than three feet
long, two feet of which at least shall be inserted in the earth, to be
erected at the termini and angles of all roads laid out by them, when
practicable ; and when not so, a heap of stones, a living tree, a pennanent
rock, or the corner of an editice, may be a substitute for such stones; or
said bounds may be permanent stone bounds not less than three feet
long, with holes drilled therein, and filled wuth lead, placed a few inches
below the travelled }>art of the street or way, as the officer whose duty
it is to cause the same [to be] erected may determine. And if they
neglect to establish such monuments after being notified so to do by
an owner of land through wdiich any such way is laid out, (since the
twenty-fifth of April, eighteen hundred and forty-eight,) the county if
it be a county road, and the city or town if it be a city or town road,
shall pay to the owner of the land the sum of fifty dollars for each month
that such neglect continues, to be recovered in an action of tort.
Ways not to be
Ifiiil out over
buryin^-
^rounds, un-
less, &c.
R. S. 24, §59.
Same subject.
K. S. 2-t, § 00.
■WATS OVER BURYING-GROirNDS.
Sect. 89. No highway or town way shall be laid out or constructed
in, upon, or through, an enclosure used or appropriated for the burial of
the dead, unless authority to that effect is specially granted by law,
or the consent of the inhabitants of the tOAVu where such enclosure is
situated is first obtained.
Sect. 90. No highway or town way shall be laid out or constructed
in, upon, or through, such part of an enclosure belonging to private pro-
prietors, as may be used or appropriated to the burial of the dead, unless
the consent of such proprietors is first obtained therefor.
CHAPTER 44.
OF THE REPAIRS OF WAYS AND BRIDGES.
public ways and bridges.
Section
1. Ways and bridges to be repaired at expense
of town.
2. When several towns to repair bridge, com-
missioners may make orders. How en-
forced.
3. Towns to vote sums to be paid in labor and
materials.
4. Highway tax may be raised in money.
5. Nou-residents, bow assessed.
0. Selectmen to assign surveyors' limits.
7. Surveyor to give notice. Party taxed may
Work, &c.
8. Surveyor may remove obstructions.
9. Fence, &c., to prevent spreading of disease,
not to be removed.
Surveyors not to turn water-courses so as
to incommode, &c.
Surveyors may contract for repairing ways.
may be authorized to collect taxes in
money.
13. Surveyor's power when sum voted is defi-
cient, or not paid.
14. If towns neglect to raise money, surveyor
with consent of selectmen may repair at
town's expense.
15. Unless town shall otherwise determine,
10.
11.
12.
Section
two-thirds the tax to be expended before
July first. Manner in which tax shall be
expended in succeeding year.
16. Penalty for nut iu'cnunting.
17. Tax of delinquents tu be collected in money.
18. Surveyor to pay over surplus money. Pen-
alty.
19. Towns to pay damages occasioned by ro^
pairs.
20. Petitioner aggrieved may apply for jury or
agree with adverse party, Ac.
21. Fine to use of executor, &c., for defect in
way causing loss of life.
22. Damages for injury by defect of ways re-
covered of town, &c., if notice, &c. Excep-
tion.
23. Party liable may tender, &c.
24. Penalty on to\ms for neglect, &c..
25. Fines imposed, appropriated for repairs,
except, &c.
26. Location not to be denied on trial, if repairs
made within six years.
PRIVATE WAYS AND BRIDGES.
27. Four or more proprietors may call meeting.
28. General powers and duties of proprietors
and surveyor
CUAP. 44.] REPAIRS OF PUBLIC WAYS AND BRIDGES.
245
Sectids
29. Peniilty on proprietor neglecting to comply
with votes.
30. Penalty for refusing to serve as survey-
or.
31. Forfeitures, how applied.
Section
3"^. Proprietors may contract for repairs, and
raise money for sucii coutritcts.
33. Surveyors may collect taxes.
34. Penalty on surveyor for neglect.
35 Chapter to apply to cities, except, &c.
PUBLIC WATS A2JD BRIDGES.
Sectiox 1. Higliways, town ways, streets, causeways, and bridges, ways and
shall be kept in rejiair at the expense of the town, city, or place, in which bridges to be
they are situated, when other jjrovision is not made therefor, so that the penseoftcwii.
same may be safe and convenient for travellers with theii- honses, teams, J^'ura^^gi''
and carriages, at all seasons of the year.
Sect. '2. When two or more towns are required by law to maintain Where several
or keep in repair a bridge u])on a highway or town waj% and differ as to p^7 brW^eT "^
the mode or time of doing the same, the county commissioners having commissioners
jurisdiction to lay out highways in cither of such towns to whom apjdi- liers.™"
cation is tirst made by one of the towns, may, after a hearing upon due J**^'2^> 5§i'
notice to all parties interested, pass such orders concerning the main-
tenance and ro]jair of such bridge as in their opinion the public good
mav require. Sucli orders shall be final, and shall be enforced in the
same manner as other orders by the commissioners are by law enforced.
Sect. 3. Towns shall vote such sums to be paid in labor and materials Towns to vote
on the highways and town ways, as are necessary ; and the assessors ™"abJr imd^a'-
shall assess the same on the polls and estates, real and personal, of the teriais.
inh.ibit.ants, residents and non-residents, of their town, as other town '•••^''■SS.
charges are by law assessed ; and shall deliver to ea<'h surveyor a list of
the ])ersons within his limits, and the sums at which they are severally
assessed.
Sect. 4. Towns may vote to raise such sums of money as are ncces- Highway tax
sary for making and repairing highways and town ways ; ami order that "'."mi^ney"""^''
the same be assessed upon the jjolls and estates of the inhabitants, resi- u. s. 25, §9.
dents and non-residents, as other town charges are assessed ; and the
same shall be collected as other town taxes are collected.
Sect. .5. The lands of non-resident proprietors shall be taxed for the Non-residents,
making and repairing of highways in the same manner as for other town i°s."25,'|2o".
taxes ; and upon default of payment, the same proceedings shall be had
as are ]irovided for the collection of other town taxes of such jjersons.
Sect. 6. The selectmen of every town having more than one sur- Seic'tmentoas-
veyor of highways, shall annually in writing before tlie first day of May, Ets."'^*'^^"'^"'
assiiiu to each surveyor the limits and divisions of the highways and us. as, §7.
town ways to be kept in repair by liim.
Sect. 7. The surveyor shall give reasonable notice, as directed by Surveyor to
the town to each person in his list, of the sum he is assessed to the ^artyuxed
highways and town ways ; and to the inhabitants within the limits of mny. ivork, &c.
his district, assessed as aforesaid, seven days' notice of the times and " '~
jilaces he .shall a|i])oint, extraonliiiary casualties excepted, for providini]
materials and working on the highways and town ways ; and each
inhabitant shall have an opportunity to work thereon, in person or by
his substitute, or with his oxen, horses, cart and plough, at the prices
which the town shall affix to such labor, to the full amount of the sum
at wiiich he is assessed ; but if any ]ierson so assessed pays to the sur-
veyor in money the sum assessed to him, the surveyor shall according
to his best judgment carefully expend the sum so paid in repairing said
ways.
Sect. 8. Surveyors of highways, except as is provided in the follow- .Surveyor may
ing section, and in sections six and nine of chai)ter forty-six, may cut fjon".^'^"'"'*'^"""
down or lop off" trees and bushes, and dig up and remove whatever ob- if- s. 25, §.i.
structs or encumbers a highway or town way, or hinders, incommodes,
21*
is:is, 30.
Sec § 17
246
REPAIRS OF PUBLIC WAYS AND BRIDGES. [ChAP. 44.
I*Vnce, &r., to
■MVvout spread-
Mi^ ol'disc'iise,
'lot to be re-
inovott.
iC. S. 2J, §4.
SurveyorB not
to turn water-
courses po as to
i icommode, &c.
iv. S. 25, § 5.
■^ Me|. 599.
•Surveyors may
icoutract for re-
uairing ways.
.£. S. 25, § 13.
may collect
taxes, &c.
It. S. 25, § 13.
power when
sum vote<i is de-
lieieut or not
paid.
K. .S. 25, § 1.3.
'.> Met. 522.
irtownsneg^lect
to raise money,
surveyor, itc.,
luay repair at
town's ex-
pense.
K. S. 25, § 14.
13 Pick. 343.
Two-thirds the
tax to be ex-
pended before
.Inly unless, &c.
Uo.v taxes
sh:dl be ex-
pended in suc-
eecding vear.
U. S. 25,'§ 10.
lS3il, 144.
IS47, 254.
Penalty for not
accountinf,^
U. a. 25, § 19.
or eml.'inoers, jiorsous travelling tliereon ; and when such way is encum-
bered with snow they shall forthwith cause the same to be removed, or
so trodden down as to make the way safe and convenient.
Sect. 9. No surveyor or other person shall remove or take down
fences, gates, or bars, placed on a highway or town way for the purpose
of preventing the spreading of a disease which may be dangerous to
the public health.
Sect. 10. No surveyor of highways shall, without the approbation
of the selectmen first had in writing^ cause a water-course occasioned
by the wash of a highway or town way to be so conveyed by the side
of such way as to incommode any house, store, shop, or other build-
ing, or to obstruct any person in the prosecution of his business.
Persons aggrieved by a violation of this section may complain to the
selectmen or mayor and aldermen, who shall tliereujjon view the water-
course, and may direct the surveyor to alter the same in such manner as
they shall determine.
Sect. 11. Towns may authorize their surveyors or any other person
to enter into contract^ for making or repairing the highways or town
ways within the same.
Sect. 12. They may empower their sur\-eyors to collect all such
taxes as are not paid in labor or otherwise within the time limited by
law, or at such periods as may be agreed upon by the town ; and for
tliat purpose the assessors shall deliver to them warrants of distress, in
substance like the warrants prescribed by law for collecting other town
taxes ; or they may deliver a warrant for collecting the deficiency in
any highw.ay tax to the collector, who shall then proceed to collect the
same in like manner as other taxes are by law to be collected, and shall
pay over the same to the respective surveyors, who shall account with
the selectmen for the expenditure thereof
Sect. 1.3. When there is a deficiency either of labor or money in the
amount ajijiropriated for the repair of highways or town ways within
the limits of any surveyor, or when said amount is not furnished or
paid to him, so that he is unable to make such re])airs, he may to an
amount not exceeding ten dollars emjiloy persons to make such repairs ;
and the persons so emidoyed shall be paid therefor by the town.
Sect. 14. If a town neglects to vote a sufficient sum of money for
the purpose of repairing the highways and town ways, or does not
otherwise eflectually provide therefor, each of its surveyors, first having
obtained the consent of the selectmen for that purpose in writing, may
employ ])ersons to repair the highways and town ways in their respec-
tive districts, so that the same shall be safe and convenient for trav-
ellers at all seasons of the year, and the persons so employed shall be
])aid therefor by the town.
Sect. 15. Two-thinls at least of the sums of money granted by each
town for repairing highways and town ways, shall be laid out and
expended for that purpose before the first day of July next after the
same are granted, or at such other time or times as the town at a legal
meeting called for that purjiose shall determine. If any part of the
money raised is to be expended in labor and materials in the month of
March or April of the succeeding j^ear, and after the surveyors of
highways for such year are chosen and qualified, it shall be expended
by the surveyors to wliom the tax was committed, under the direction
of the surveyors of the succeeding year having charge of the repairs of
the highways and town ways in the district in which the same is to be
thus expended.
Sect. 16. Every surveyor shall exhibit his tax bill to the selectmen
on the first Monday of July annually, and also at the expiration of the
tenn for which he is appointed ; and at those times shall render an
account of all moneys expended by him on the highways aud town
Chap. 44.] repairs of public ways and bridges. 247
ways. For each neglect he shall forfeit a sum not exceeding fifty
doUars.
Sect. 17. At the expiration of his term the surveyor shall render to Taxofdeiin-
the assessors a list of such persons as have neglected or refused to work iS'nnmoncy!
out or othei'tt-ise pay their highway tax, when required by him as pro- K. s. as, § ii;.
vided in section seven ; and such deficient sums shall be collected and
paid into the treasury like other town taxes.
Sect. 18. If anv money remains unex]iended in the hands of a sur- Surveyor to pay
veyor at the expiration of his office, he sh.ill jiay the same to the town '{•ZLity}'^'^'''
treasurer; who, after demand, may recover the same in an action of R- s. ai, §§ ir,
contract for money had ami received, with twenty j)er cent, in addi-
tion thereto, to the use of the town.
Sect. 19. When an owner of land adjoining a highway or town To\vnstopay
way sustains damage in his property by reason of any raising, lowering, jfouea'by"^"
or other act, done for the purpose of rejiairing such way, he shall have p-"'".''- ^.
compensation therefor, to be detemiined by the selectmen or mayor and i85y,(i7. '
aldermen: with whom he shall file his iietition therefor after the com- iS'^''-*'?-
mencement, and withm one year irom tlie completion oi tlie work; sjict. ir9.
and who shall finally adjudicate upon the question of damages within io^cusi',.''4ii.
thirty days after the filing of the petition therefor, unless the ))arties 5Gray,3;2.
agree in writing to extend the time. The benefit, if any, which the
complainant may receive by reason of such alteration or repair, shall be
allowed by way of set ofl".
Sect. 20. If the petitioner is aggineved, either by the estimate of Petitioner ag-
his damages or by a refusal or neglect to estimate the same, he may, ^^j\y'f™^aTy,
within one year from the exjiiration of said thirty days, apply for a jury, y^*Jj-
and have his damages ascertained in the manner provided where land '
is taken in laying out highways. Or he may, by agreement with the
adverse party and upon application made witliin the same time, have
them ascertained by a committee to be appointed, in the city of Bos-
ton by the su]ierior court, and elsewhere by the county commissioners
in their respective jurisdictions.
Sect. 21. If the life of a person is lost by reason of a defect or want if lifo is lost
of repair of a highway, town way, causeway, or bridge, or for want of ^^""f^l^atm^'
suitable rails on such way or bridge, tiie county, town, or person, by mny recover
law obliged to repair the same, shall be liable to a fine of one thousand k.'^'os, 5 21.
dollars, to be recovered by indictment to the use of the executor or ad-
ministrator of the deceased person, for the benefit of Ids heirs, devisees,
or creditors : provided, that the county, town, or jierson, had previous
reasonable notice of the defect or want of repair of such way or bridge.
Sect. 22. If a person receives or sufiers liodily injury, or damage in Damatjesfor
his ]n-oiierty, through a defect or want of repair, or of sufficient railing *!,s|'',Ji'^"'''^^'
in or upon a highway, town way, causeway, or bridge, he may recover, 5;'^li'i5 '■_
in an action of tort," of the county, town, i)lace, or persons, by law gji^. dss.''
obliged to repair the same, the amount of damage sustained thereby, if JV^J^'h; ^j;' 451;
such county, town, place, or persons, had reasonable notice of the defect, ;; Cush! m.
want of rejiair, or of sufiicient railing, or if the same had existed for the ocu'si!; hi!
space of twentv-four hours iirevious to the occurrence of the iiijurv or l(:;}^\- -i'M-
-1 Ti " 1 1 1 n 1 11 " ," 11 Gush. SW.
damage. But no such damage shall be recovered by a person whose 5 Gray, 01.
carriage and load thereon exceed the weight of six tons. n^n^av'ni' '**'
Sect. 23. If, before the entry of an acti<in ])r()vi<led for in the pre- Party u'ai>ic
ceding section, the defendant tenders to the plaiiititi' the amount which ^''^s.'Ss.'s-is*''"
he would be entitled to recover, together with all legal costs, and the r Cusb. osi.
plaintiff does not accept the same, and does not recover upon the trial
more than the sum so tendered, the defendant shall recover his costs.
Sect. 24. If a town neglects to repair any of the ways or bridges Penalty on
which it is by law obliged to keep in rejiair, or neglects to make the lecm'"'"^""
same safe and convenient when encumbered with snow, such town shall J*-,?; ;'■''?,;■'■
pay such fane as the court m its discretion maj' order.
248
REPAIRS OF PRIVATE WAYS AND BRIDGES. [ChAP. 44.
Tines imposed,
).l>propriated
\ IF repairs, ex-
C.-pt, &C.
l;. S. 25, §25.
Location, when
1 lot to be denied,
i;. S. 25, § 2li.
5 Greenl. 368.
^ Pick. 51.
:; Pick. 408.
« Pick. .112.
4 Cush. Vii.
:> Gray, 7;J.
7 Gray, 343, .345.
Sect. 25. Except in cases where it is otherwise specially provided,
fines imposed on a town for deficiencies in the wajs and bridges within
the same, shall be ajjpropriated to the repairing of such ways and
bridges ; and the court imposing such fine sh.'ill appoint one or more
persons to su])erintend the collection and aj^plication of the same, who
shall make a return of their doings therein to the court.
Sect. 26. If on the trial of an indictment or action brought to re-
cover damages for an injury received by reason of a deficiency or want
of repair in a highway, town way, causeway, or bridge, it aji]iears that
the county, town, or person, against whom such suit is brought, has, at
any time within six years before such injury, made reiiaii's on such
way or bridge, such county, town, or person shall not deny the location
thereof.
Tour or more
jToprietors
niay call meet-
' IS-
U.S. 25, §34.
General powers
and duties of
liroprietors and
surveyor.
K. S.25, §35.
Penalty on pro-
prietor nejjlect-
iu^ to comply
wnth votes.
K. S. 25, § 3G.
Penalty for re-
tusing^ to serve
as surveyor.
li. S. 25, § 37.
Forfeitures,
how applied.
K. S. 25, § 3S.
Proprietors
may contract
lor repairs, and
raise money for
such contracts,
&c.
U.'S.25, §530,
40.
Surveyors may
collect taxes.
K. S. 25, § 41.
Penalty on sur-
veyor for ne<^-
lect.
E. S. 25, § 42.
Ch.apter to ap-
ply to cities, ex-
cept, &c
PEIVATE WATS AND BEIDGES.
Sect. 27. When four or more persons are the ]iropriotors and right-
ful occupants of a private way or bridge, and three of them make apjjli-
cation in writing to a justice of the jieace to call a jiroprietors' meeting,
the justice may issue liis wan-ant therefor, setting tbrth the time, place,
and purjjose, of the meeting; which shall be ]iosted up in some public
place of the town where Such way or bridge is situate, seven days at
least before the time .appointed for the meeting.
Sect. 28. The proj)rietors and occujiants so assembled shall choose
a clerk and surveyor, who shall be sworn. They may determine by a
majority of those present the manner of calling future meetings ; what
repairs of the way or bridge are necessary; and the ])roportion of money
and of labor and materials to be furnished by each pro]irietor and occu-
pant for such repairs. The surveyor shall have the like powers with
respect to such ways or bridges as are exercised by surveyors of highways.
Sect. 29. A projirietor or occupant refusing or neglecting to comply
with such vote when required by the survejor, shall be held to pay
him the amount of his proportion in money, with ten per cent, interest
thereon, in an action of contract.
Sect. 30. If a person so chosen refuses or neglects to accept that
trust and take the oath, he shall forfeit the sum of five dollars, to be
recovered in the manner provided for the like neglect or refusal of a
person chosen surveyor of highways.
Sect. 31. Damages and forfeitures recovered under the provisions
of the two preceding sections shall be appUed to the use of the propri-
etors for repairing said ways or bridges.
Sect. 32. The projn-ietors and occupants may, at a legal meeting
for that pur])ose, authorize any person to contract by the year, or for a
longer or shorter time, for making and keejiing in repair such private
ways or bridges; may vote to raise such sum of money as they may
/:leem necessary for can-ying such contracts into effect ; and may choose
assessors who shall assess each projirietor and occujiant for his ]3ropor-
tion of such sum, according to his interest in such way or bridge, and
deliver the lists of such assessments to the surveyor, with ])ro])er war-
rants of distress, in substance as is prescribed by law for collecting town
taxes.
Sect. 33. The surveyor may levy and collect such taxes in the same
manner as surveyors of highways are empowered to collect highway
taxe.s.
Sect. 34. If a surveyor neglects or refuses to pay over according to
the direction of his warrant the moneys so collected, he shall be liable
to the same penalties as are provided for a like neglect or refusal of sm'-
veyors of highways to pay over moneys to the town treasurer.
Sect. 3.5. ' The pro\-isions of this chajiter shall ajiply to cities except
as otherwise provided in their charters or acts in amendment thereof.
Chap. 45.] regulations respecting ways and bridges. 249
CHAPTEE 45.
OF REGULATIONS AND BY-LAWS RESPECTING WAY'S AND BRIDGES.
guide posts.
Section
1. To%m8 to erect ami maintain g^ide poste.
2. Selectmeu to report locatious, &c. Pen-
alty.
3. Towns to determine places for posts. Pen-
alty.
4. Posts to be erected at places, with guide
boards.
5. Penalty for neglect to erect posts.
SIDEW.VLKS.
6. Sidewalks, how constructed. Penalty for
riding, &c., over. Surveyor's authority.
Cities.
Section
7. Sidewalks, when selectmen, &c., may grade,
&c. Expense, how paid.
8. not to be obstructed, unless, &c.
9. Removal of enow, &c., from, in cities.
BY-LAWS.
10. By-laws to prevent pasturing cattle in high-
wa5-8.
11. to regulate travel over certain county
bridges.
12. over certain town bridges.
13. over incorporated bridges.
14. No penalty incurred unless by-laws are
posted up.
GUIDE POSTS.
Section- 1. Every town shall in the m.anner provided in this chap- Towns to erect
tor, erect and maintain guide posts on the highways and other ways ""'(ic'poBt's."
within the town, at such places as are necessary or convenient tor the &. s. 23, §28.
direction of travellers.
Sect. 2. The selectmen of each town shall submit to the inhabitants selectmen to
at every annual meeting a report of all the ]places in which guide ])osts f,7,"s?&c "'
are erected ami maintained within the town, and of all jilaces at which ivnaity.
in thgir ojjiiiion they ought to be erected and maintained. For each ••''•'^'S^-
neglect or refusal to make such report they shall severally forfeit the
sum often dollars.
Sect. 3. Upon the report of the selectmen, the town shall determine Towns to deter-
the several places at which guide posts shall be erected and maintained, no"ts!''penaity.
which shall be recorded in the town records. A town which neglects it. s. 25, §30.
or refuses to determine such places, and to cause a record thereof to be
made, shall forfeit the sum of live dolhars for every month during which
it neglects or refuses so to do ; and in such case, upon any trial for not
erecting or maintaining guide ])osts re|)orted to be necessary or con-
venient by the selectmen, the town shall be estopped from alleging that
such guide posts were not necessary or convenient.
Sect. 4. At each of the places determined by the town there shall rests to be
be erecteil a substantial post of not less than eight feet in height, near pi"],'.^'' ,".[(,,
the upper eml of which shall be placed a lioard or boards, and u])on guide boards,
each board sh;ill be plainly and legibly painted or otherwise marked the " **■ ^' ^^^'
name of the next town or ]ilace, and such other town or place of note
as the selectmen think proper, to which each of such roads leads,
together with the distance or number of miles to the same ; and also
the figure of a hand, with the forefinger thereof pointing towards the
towns or places to which said roads lead : 2}>''Jvided, that the inhabitants
of any town may at their annual meeting agree upon some suitable sub-
stitute for such guide posts.
Sect. 5. Every town which neglects or refuses to erect and main- Penalty fomeg-
tain such guide posts, or some suitable substitutes therefor, shall forfeit {,"',*" "'^'^
annually the sum of five dollars for every guide post which it so neglects R- s. 25, § 32.
or refuses to maintain.
SIDEWALKS.
Sect. 6. A person owning or occupying lands adjoining a highway sidewalks, how
or road in a town, may construct a sidewalk within such highway or p",',aVtv'^fOT'rid-
road, and alonii the line of such land, indicating the 'width of such side- ing, &c., over.
32
250
BY-LAWS RESPECTING WAYS AND BRIDGES. [CUAP. 45.
Surveyor's au-
thority. Cities
1849, 34, §§ 1, 2,
3.
When select-
men, Ac, may
grade, i&e., side-
walks.
Expense, how
paitl.
1SS5, 43, § 1.
Sidewalks not
to be obstruct-
ed, unless, (tc.
1S5d, 43, § 2.
removal of
snow, A:c.,from,
in cities.
lS5r, 04, §§ 1, 2.
walk by trees, posts, or curb-stones, set at reasonable distances apart, or
by a railinsj erected thereto ; and where a sidewiilk is so constructed,
whoever rides or drives a horse or team upon and along the same shall
forfeit the sum of one dollar to be recovered by such owner or occupant
in an action of tort. But this section shall not diminish or interfere
with the authority of surveyors of hinhways, or any other uiitlKuity
that can be legally exercised over highways or roads ; nor shall it in
any manner diminish the liability of any person for uureasouably ob-
structing highways or roads, nor shall it apply to cities.
Sect. 7. In cities in which the city council, and in towns in which
the inhabitants, have adopted the provisions of this and the following
section, the mayor and aldermen or selectmen may establish and grade
sidewalks in such streets as in their judgment tlie jiublic convenience
may require, and may assess the abutters on such sidewalks one-half the
expense of the same, the residue being jjaid by such city or town. All
assessments so made shall be a lien upon the abutting lands in the same
manner as taxes are a lien upon real estate.
Sect. 8. No sidewalk constructed or graded in a city or town shall
be dug up or obstructed in any jjart thereof, without the consent of the
mayor and aldermen of the city, or of the selectmen of the town, in
which such sidewalk is establislied.
Sect. 9. City councils may by ordinance provide for the removal of
snow and ice from sidewalks in such portions oi' their cities as they
deem expedient, which ordinance shall determine the time and manner
of removal, and shall affix penalties not exceeding fifty dollars to any
A'iolation of its provisions by any owner or tenant of the estate abut-
ting upon the sidewalk from which the snow and ice are required to be
removed.
By-laws to pre-
vent pasturing
cattle in high-
ways.
1857, 82.
to regulate
travel over cer-
tain couuty
bridges.
K. S. 25, § 44.
certain
town brid^-es.
K. S. 25, §45.
over incorpo-
rated bridges.
K. S. 25, § 47.
7 Gray, 457.
No penalty
unless by-laws
are posted up.
R. S.25,§§4«,
47.
BY-LAWS.
Sect. 10. A city or town may make suitable by-laws and regulations
to prevent the pasturing of cattle or other animals, either with or with-
out a keeper, ujion any or all of the streets or ways in such city or
town, and maj' annex penalties not exceeding twenty dollars for each
violation thereof. But no such by-law or regulation shall attect the right
of a person to the use of land within the limits of such way adjoirung
liis own premises.
Sect. 11. The commissioners of each county may establish by-laws
to prevent persons from riding or driving liorses at a rate faster than a
walk over any bridge maintained by such county, wliicli shall have cost
not less than one thousand dollars; and annex jienalties nut exceeding
one dollar for a breach thereof, to be recovered in an action in the name
of the county treasurer.
Sect. 12. A town may at an annual meeting establish by-laws to pre-
vent persons from riding or dri\ing horses at a rate faster than a walk
over any bridge within the limits of such town, which shall have cost
not less than five hundred dollars ; and annex penalties not exceeding
one dollar for a breach thereof; but such b_y-laws shall first be apjiroved
by the commissioners for the couuty in which such town lies.
Sect. 13. The proprietors of an incorporated bridge may make
such by-l:iws as they deem necessary to prevent ])ersons from riding or
driving horses over such bridge at a rate faster than a walk ; and annex
l)enalties to such by-laws not exceeding two dollars for each offence, to
be recovered to the use of the corporation.
Sect. 14. No person shall be liable to any of the penalties in the
three ]ireeeding section.s, unless the commissioners, town, and proprie-
tor.s, respectively, keep posted u]) at each end of such liridges, in some
conspicuous place, a board painted with a white ground containing in
black letters the substance of their said by-laws.
Chap. 4G.] boundaries of highways and encroachments thereon.
251
CHAPTER 46.
OF THE BOUNDARIES OF HIGHWAYS AND OTHER PUBLIC PLACES, AND
ENCROACHMENTS THEREON.
Section
1. Feucee, .tc, when deemed boundaries of
highways, &c.
2. Limitation.
3. Wlicu building adjudged nuisance, taken
down, sold, &c. CostB.
4. Gates, rails, &c., how and wlien removed.
5. Gates, fences, &c., on town or private ways,
, how removed.
Section
6. Shade trees may be planted in highways ;
how removed.
7. penalty for injuring, &c.
8. oivner of boast dama^^inj,' , liable, &c.
9. may be set out at public expense, when,
&c. Sums to be appropriated.
old, &c.
a. -'4, 1 63.
Section 1. Where buildings or fences have been erected and con- Fences, &c.,
tinned for more tlian twenty years, Irontins upon or asfainst a training "■i'>'",<i<'emed
fi,^l . 1 iTi 1. 1 - ^ noundaries of
eld, burying ])lacc, common landing place, highway, private way, street, hifrhways, ic.
lane, or alley, and from the length of time or otherwise the boundaries }; piel^'sog^'
thereof are not known, or cannot be made certain by the records or by t* Mot. ira.
monuments, such fences or Iniildings .shall be deemed and taken to be the n Cusii."*'
true boundaries thereof. When such boundaries can be made certain,
no length of time, less than forty years, shall justify the continuance of
a fence or building on a town or jirivate way, or on a highway, training
field, burying jilace, landing jilace, or other land ap])ro})riated for the gen-
eral use or convenience of the inhabitants of the commonwealth, or of a
county, town, or parish ; but the same may upon the presentment of
a grand jury be removed as a nuisance.
Sect. 2. The limitations of time prescribed in the preceding section Limitation,
shall take effect from and after the tliirty-first day of December in the ks. 24, §62.
year one thousand eight hundred and thirty-nine.
Sect. 3. When a building, fence, or other encumbrance, erected or whon building
continued on a town or private way, or on a highway, training field, p!,'^,''.'^1^8"tal^"n''
burying place, landing place, or other land appropriated" for the general down, si •• ■
use or convenience of the inhabitants of the eommonwealtli, or of a k'.'s.^Lm,
count}', town, or parish, is adjudged a nuisance and ordered to be abated,
and the materials, u]ion a sale thereof by auction, shall be insufficient
to pay the costs and charges of prosecution and removal, the court may
order the deficient sum to be raised and levied from the goods and
chattels of the party convicted of erecting or continuing such nuisance.
Sect. 4. Any person may take down and remove gates, rails, bars. Gates, raii8,&c.,
or fencefs"!, uijon or across a liiwhwav, unless the same liave been there ?" highy.ays,
1 1 x^ I i> • N 1. /.I. 1 how and when
placeil tor tlie jjurpose ot jireventing the s])reading of a (bseasc dangerous removed.
to the public health, or have been erected or continued by the license lujiass'. Ii.'^'
of the county commissioners or of the selectmen of the town ; in which
case a person aggrieved by such taking down and removal may apply to
the commissioners, or selectmen, respectively, who may order the same
to be replaced.
Sect. 5. If fence[s], gates, rails, or bars are upon or across a town on town or
way or jirivate way, the same may be removed by the order of a justice of {jo^'reniorai
the jieace, unless the same are there placed for the purpose of preventing k. s. JS.Ha.
the spreading of a disease dangerous to the public health, or unless the
same are erected or continued by license of the town, or of the person
for whose use such )iri\ate way was laid out ; and a person aggrieved
by such removal may a])ply to the commissioners ; and if ujion exami-
nation it appears that the same were erected or continued by license as
aforesaid, the coimnissioners shall order them to be re])laced.
Sect. 6. The mayor and aldermen, selectmen, or any municipal shadetreesmay
officer of a city or town to whom the care of the streets or roads may IIjJh""''^'' ^S
be intrusted, may authorize the planting of shade trees therein, wher-
252
FERRIES.
[Chap. 47.
Shade trees,
how removed.
1833, 2jli, § 1.
See Ch. «, § 8.
penalty for in-
juring:, &e.
1S60, asc, § 2.
owner of
beast daraai^infj,
liable, &c,
1859, 21)1.
may be set
out at public
expense, when,
&c. Sums to be
appropriated.
185r, 115, §§ 1,
2,3.
See Ch. 44, § 8.
ever it may not interfere with the public travel or with private rights ;
and shade trees standing and trees planted pursuant to such license
shall be deemed and taken to be the private property of the jierson so
planting them, or upon whose premises they stand or are planted, and
shall not be deemed a nuisance ; but upon complaint made to the mayor
and aldermen, or selectmen, they may cause such trees to be removed
at the expense of the owner thereofj if the pubhc necessity seems to
them so to require.
Sect. 7. Whoever wantonly injures, defaces, tears, or destroys, an
ornamental or shade tree, or shrub, statue, fountain, vase, or other plant
or fixture of ornament or utility, in a street, road, square, court, park,
public garden, or other enclosure, shall forfeit not less than five nor
more than one hundred dollars, to be recovered by complaint, one-half
to the complainant and the other half to the use of the person upon
whose 2'roperty, or within whose j)remises, the trespass was com-
mitted.
Sect. 8. Whoever negligently or carelessly suffers any horse or other
beast driven by or for him, or any beast belonging to him and lawfully
on the highway, to break down, destroy, or injure any tree not his own,
standing for use or ornament on said highway, or negligently or wilfully
by any other means breaks down, destroys, or injures any such tree,
shall be subject to an action for damages, at the suit of the owner or
tenant of the land in front of which the tree stands.
Sect. 9. In a city in wliich the city council, and in a town in which
the inhabitants, have accepted this section, the mayor and aldermen or
selectmen may set out ami maintain shade trees upon the public squares
and highways, at the expense of such city or town, which may a]i]tro-
priate annually, for that purpose, a sum not exceeding twenty-five cents
for each of its ratable polls in the year next preceding that in w"hich
such appropriation is made.
CHAPTER 47.
OF FERRIES.
Section
1. Ferrymen to be licensed by commissioners.
2. Tolls to be established by commissioners.
Ferrymen to j^ive bond.
3. .Safe boats to be kept at ferries, &c. Penalty.
4. Kemedy for persons sustaining damage
through negligence of ferrymen.
Sectiox
5. Penalty for keeping ferry without author-
ity.
6. When towns to maintain ferry.
". When two towns shaU bear expense jointly.
8. Penalty for neglect.
Ferrymen to be
licensed by
commissioners.
K. S. 2u, §§ 1, 2.
Tolls to be es-
tablished by
commissioners.
Ferryin'^n to
give bou'l.
K. S. 2(1, § 2.
Safe boats to be
kept at ferries,
&c.
Section 1. No person shall keep a ferry and receive pay, unless he
first obtains a license therefor from the county commissioners. Such
license may be granted to suitable persons for such time as the commis-
sioners think proper, and they ma}- revoke it when necessary.
Sect. 2. The commissioners shall establish the fares or tolls at each
ferry for passengers, horses, can-iagcs, and other thing.s, there trans-
ported, always having regard to the length and situation of the ferry,
anil the number of persons passing the same ; and in all cases taking
bond with sufficient sureties of each ferryman for the fiithful perform-
ance of his duty. But this and the ]ireceding section shall not ajiply to
ferries established by law ])rior to the thirtieth day of AjiHl in the year
one thousand eight hundred and thirty-six.
Sect. 3. Every ferryman shall keep a safe and good boat or boats in
good repair, adapted to the waters where they are to be used, and shall
Chap. 48.]
SEWEKS AND DRAINS.
253
give ready attendance on passengers on all occasions, according to the Ponaity.
regulations establislied for his ferry. For every neglect in keeping such ^'' ^-^i^'SSS, 4.
a boat, or in giving such attendance, be shall torf'eit a sum not exceed-
ing twenty dollars, and be further liable in an action of tort for such
damages as any person sustains by such neglect.
Sect. i. Whoever sustains an injury by the negligence or default of Romedyfor
a ferryman may have a remedy by an action upon the bond required in tJiun'of tory^
this chapter; ami in such action like proceedings maybe had as in men.
actions brought on the bonds of sheriffs. ■ i*-S-20.§5-
Sect. 5. Whoever without lawful authority keeps a ferry and Penalty for
demands or receives pay or toll therefor, shall forfeit a sum not exceed- l^ritholft autiror-
ing five dollars for every day that he keeps such ferry, and be liirther >ty-
Uable in an action of tort for such damages as are thereby occasioned '^'
to any person authorized to keep an established ferry.
Sect. 6. When the commissioners judge it necessary to establish when towns to
a ferry, and no person appears to keep the same for the stated profits "■.'"s.'lli"^?"^'
thereof, the town where such ferry may be shall provide one or more
suitable persons to keep and attend the same at such place and in such
times of the year as tlie commissioners order, which persons shall be
licensed as aforesaid ; and the expense of maintaining such ferry, beyond
the amount received for tolls, shall be paid by the town.
Sect. 7. If such ferrj' is established between two towns, they shall wiientwo
maintain the same, either jointly or alternately, as the commissioners cxpeuBo"*"^"
shall order. K.S.8o;§8.
Sect. 8. A town neglecting to maintain a ferry as provided in the Penalty for nejj-
two preceding sections, shall forfeit for each month's neglect a sum not ij?s. 20, §9
exceeding one hundred dollars.
CHAPTER 48,
OF SEWERS AND DRAINS.
Sectiox
1. Board of aldermen in Boston may lay and
repair sewors and drains.
2. Laud to be taken and damages appraised as
in laying- out hiirhways.
3. In towns which sliall accept, &c., main
drains and sewers may be biid.
4. Persons entering their drains into the main
drain to be assessed, &c.
5. Such assessments to constitute a lien.
6. Party aggrieved may have jury. To file
specification of objections.
7. To\vu may provide that part of expense
shall be paid by town, &c. In Boston, not
less than one quarter to be bo paid.
Section
8. Highways, streets, &c.,not to be dug- up to
lay drains, &c., without consent of select-
men.
9. Drains, &c., how to be constructed.
10. Persona benefited to share expense of
making drains, repairing, &c.
11. to share expense of removing obstruc-
tions, &c.
12. refusing to pay their proportions, shall
pay double the amount, &c.
13. Notice to be given before opening any drain.
14. Provisions not to aflect agreements of par-
ties.
Section 1. The board of aldermen of the city of Boston may lay, Board of aider-
make, and maintain, in said city, all such main drains or common sewers JJJIJy lay^andre-
as they shall adjudge to be necessary for the public convenience or the jjnir sewers and
public health, and may repair the same from time to time whenever it is5r°225, § i.
is necessary.
Sect. 2. .... .- -^ __ ._. ^ _, , .__.
board shall proceed in the manner required by law in takincj land for n-les^apprai^'
*^ When land is taken by virtue of the preceding section, the i.and to be
proceed in the manner required by law in taking land for
])ublic liighways or streets ; and persons suifering damage in their prop- -"^ji ii^yiu^ out
erty sliall have the rights and remedies for the ascertainment and the it57r2^5,§2.
recovery of the amount of such damage provided by law for the ascertain-
22
/
254 SEWERS AND DRAINS. [ChAP. 48.
ment and recovery o. damages for lands taken in said city of Boston
for jniblie highways or streets.
In certain Sect. 3. In any city or town in wliich chapter one hundred ami fif-
SSns anirsow- t^en of the statutes of eighteen hundred and forty-one has been aeeejited
ers may bo i:.i 1. according to the provisions of that act, and in any city in which this
9 Cash. 233. ''' find the three foUou-ing sections of this chapter have been accepted
by the city council, and in any town in which the same have been
aeeejited by the legal voters at a meeting called for that purpose, the
mayor and aldermen of the city and the selectmen of the town may lay,
make, maintain, and repair, all main drains or common sewers ; and all
the main drains or common sewers shall be the property of such city or
town.
Persons enter- Sect. 4. Every person who enters his particular drain into such main
m.oin drain "o" drain or common sewer, or who, by more remote means, receives benefit
be assessed, &e. thereby for draining his cellar or land, shall pay to the city or town a
' proportional part of the charge of making and repairing the same, to be
ascei'tained, assessed, and certified, by the mayor and aldermen or select-
men, and notice thereof shall be given to the party to be charged, or his
tenant or lessee.
Such assess- Sect. 5. Assessments so made shall constitute a lien on the real
tatc'aUeii.""*''' estates assessed for one year after they are laid, and may, together with
isii, 115, § 3. incidental costs and expenses, be levied by sale thereof if the assessment
is not ])aid within three months after a written demand for jiayment,
made either upon the person assessed or upon any person occupying the
estate ; such sale to be conducted in like manner as sales for the non-
payment of taxes.
Party aggrieved Sect. 6. A person aggrieved by such assessment may, at any time
Mo^e''orm'u^'^' within three months from receiving notice thereof, apply for a jury,
cceding. Such application shall be made in like manner and the proceedings
S^'lio?'^*" thereon shall be the same as in case of binds taken for laying out of
highways : provided, that before making his application the party shall
give one month's notice in writing to the selectmen or mayor an'l
aldermen of his intention so to apply, and shall therein particularly
specify his objections to the assessment made by them; to which speci-
fication he shall be confined upon the hearing by the jurj%
Part of expense Sect. 7. Nothing herein contained shall prevent a city or town from
™wn''&c.'"'^ ^^ providing, by ordinance or otherwise, that a part of the expense of con-
How,' in Bos- structlng, maintaining, .and repairing, main drains or common sewers,
1841, 115, §5. *^*''*11 ^^^ P'^i'l ^y *'^'^'^ '^^^J o"" town. And in the city of Boston, not less
than one-quarter part of such expense shall be paid by the city, and shall
not be charged upon those using the main drains or common sewers.
Highways, &e., Sect. 8. Whoever digs or breaks up the ground in a highway,
dugupttfiay Street, or lane, in any town, for the laying, altering, or repairing, of a
^rains.&c. drain or common sewer, without the consent of the selectmen in writ-
'" ' ing, shall forfeit five dollars for each oifence to the use of the town.
Drains, &q., Sect. 9. All drains and common sewers in a street or highway, shall
Bt°uctcd'!''' ™° ^'^ substantially made or rejiaired with brick or stone, or with such
K. s. a?, §2. other materials, and in such manner, as the selectmen of the town shall
jicrniit or direct.
Persons benefit- Seot. 10. When a person, by the consent and under the direction
pen°eof'makiuo- of the Selectmen, at his own charge, makes and lays a common sewer or
dr^M, repiur-" main drain for the benefit of himself and others who think fit to join
K.'s. 27, §3. therein, every person who afterwards enters his jtarticular drain into
See § 13. t]jp same, or by any more remote means receives benefit thereby for the
draining of his cellar or land, shall jiay to the owners of such common
sewer or main drain, a proportional part of the chai-ge of making and
repairing the same, to be determined by the selectmen of the town and
certified under their hands; saving .always to the p.irty .aggrieved by
any such determination the right to a trial by jury, as pro\i<led in sec-
tion six.
Chap. 49.] regulation op trade. 255
Sect. 11. When a common sewer or main drain is stopped or gone Persons benefit-
to decay, so that it is necessary to open the same in order to repair it l^^/^ expense*
or to remove sucli stoppage, all persons benefited by such repair or of removing ob-
removal of obstructions, as well those who do not as those who do cause k. s. 27, fi.
such re])airs to be made or obstruction to be removed, shall i)ay to the
person incurring the expense their proportional parts thereof, to be
determined as provided in the preceding section.
Sect. 12. Every person so required to pay his proportional part of refusing to
the expense of making or repairing a drain or common sewer, shall have portions^ Bhaii
notice of the sum and of the person to wlioni the same is to be paid ; P»y <ioubie the
and if he does not, within seven days after such notice, pay the same to iTs^'ir', §5!
the person authorized bj' the selectmen to receive it, he shall be held to
pay double the amount certified by the selectmen as aforesaid, with all
expenses arising upon such neglect ; and the person so authorized by
the selectmen may recover the same in an action of contract in his own
name.
Sect. 1.3. Whoever has occasion to open a common sewer or main Xoticetobe
drain in order to clear and repair the same, shall, seven days at least oi«'n!n'g any
before he begins to o])en the same, give notice to all parties interested, '',''"',"•„!
by advertising in such manner as the selectmen may direct, that such ^•''— '''§^-
parties may, if they think ])roper, object thereto and state their objec-
tions in person or in writing to the selectmen ; and if the selectmen
judge the objections reasonable, the parties making the same shall not
be held to pay any part of such expenses ; but if they do not make their
objections to the selectmen within three days after such notice, or if the
objections are not adjudged reasonable, tlie selectmen shall in writing
under then- hands give liberty to the persons applying, to open such
common sewer or main drain, and to clear and repair the same ; and all
persons interested therein shall pay their proportions to be determined
as provided in section ten.
Sect. 14. Nothing contained in this chapter shall afiect any cove- Agreements of
nants or agreements among the proprietors of such drains or common fected? ""^ ^
sewers. k- s. 27, § 7.
TITLE XIII.
OF THE REGULATION OF TRADE IN CERTAIN CASES.
Chapter 49. — Of the Inspection and Sale of Provisions and other Merchandise.
Chapter 50. — Of Sales by Auctioneers, and Hawkers and Pedlers.
Ch.\PTER 51. — Of Weights and Measures.
Chapter 52. — Of Shipping and Pilotage.
Celvpter 53. — Of Money, Bonds, Bills of Exchange and Promissory Notes.
Ch.\pter 54. — Of Agents, Consignees, and Factors.
Chapter 55. — Of Limited Partnerships.
Chaptkr 56. — Of the Unauthorized Use of Trade-marks and Name*,
256
INSPECTION AND SALE OF PROVISIONS, ^c. [ChAP. 49.
CHAPTER 49.
OF THE INSPECTION AND SALE OF PROVISIONS AND OTHER
MERCHANDISE.
appointment of inspectors-general, &c.
Section
1. Inspectors -general to be appointed by the
governor for five years. To be sworn.
Present inspectors to continue in office, un-
less, €&C.
2. Deputy -inspectors.
BEEF.
3. Weighers of beef, when and how appointed.
4. Fees for weighing.
BREAD.
5. Bread, weight of, how sold.
0. prices of, &c., to be displayed, where sold.
7. to be weighed, «Sic.
8. Penalty.
9. Rolls, &c.
BUTTER AND LARD.
10. Inspector-general of butter, &c., to give
bond.
11. Deputies to be appointed; to give bond
and be sworn.
12. Manner of inspecting.
13. Brands of casks, &c.
14. Size of kegs, and quality of casks.
15. Casks, &c., to be filled with brine before
packing ; how branded.
IG. Inspector-general to make returns ; con-
tents.
17. Fees.
18. Penalty for delaying to inspect.
19. Imported butter, &c., not subject to inspec-
tion.
20. Penalty for counterfeiting brands.
21. for putting other butter into branded
kegs, &c.
22. for exporting, &c., butter, &c., not in-
spected.
23. When butter, &c., may be seized and
UbeUed,
CHOCOLATE.
24. Chocolate, how to be stamped.
25. Ingredients ; boxes, how branded.
20. Chocolate made contrary to law may be
seized, &c.
FIRE-ARMS.
27. Provcrs of fire-arms to be appointed and
sworn.
28. How tire-arms shall be proved.
29. How stamped.
30. Fees.
31. Penalty for buying, selling, &c., arms not
proved.
32. for forging stamps.
FISH.
33. Inspector-genera! to give bonds, and have
no private interests in pickled fish.
34. may appoint deputies, who shall give
bond and be sworn.
35. Inspectors to inspect all fish, &c.
36. Fish, how prepared, packed, and branded.
37. Number, measure, and quality, of mackerel,
salmon, shad, &c.
38. Casks, Ac, to contain same kind; penalty
for shifting contents of.
39. how branded.
40. Fish of foreign catch subject to U. S. duty,
how branded.
Section
41. Penalty on inspector for neglect under pre-
ceding section.
42. Pickled fish inspected in other states not
subject to reinspection.
43. Small fish, how packed.
44. Quality and capacity of casks.
45. Casks to be examined.
46. Fees.
47. Inspector's proportion of deputies' fees,
48. Alewives, &c., how prepared for packing.
49. Sorts of alewives, &c.
50. Quahty and capacity of boxes.
51. Brands.
52. Fees.
53. Inspector-general to make returns, &c.
54. Penalty for exporting alewives, &c., con-
trary to law ; for substituting fish of infe-
rior quality. Fish imported need not be
reiuspected.
55. Fish, when forfeited.
50. Penalty for lading uninspected fish on
board of vessels.
57. for selling tainted fish for food.
5S. for branding without inspecting, &c.
59. Quintal, weight of.
00. Clam bait, weight, expense of weighing,
FRUIT, nuts, and VEGETABLES.
01. Fruit, nuts, and vegetables, to be sold by
dry measure. Penalty.
62. Nuts and berries measured by the strike.
GRAIN AND MEAL.
63. Grain and meal to be sold by the bushel.
04. Weight of bushel.
05. Jleasurers to be appointed. Duty,
60. Penalty for short weight when measurer
not employed.
67. Fees of measurer, who to pay.
OS. Penalty for false weights, &c., or collusion,
&c.
GUNPOWDER.
69. Quality and size of casks, &c., for gun-
powder.
70. All casks to be marked.
71. Penalty for falsely marking, &c.
72. Weighers of hay to be appointed.
73. duty of.
74. may be removed.
75. Penalty for setting up hay scales without
authority.
76. Pressed hay, how branded.
77. Forfeiture for selling williout brand.
78. Inspectors of bale or bundle hay, appoint-
ment of; to be sworn.
79. duties of.
80. Hay, how numbered and marked.
81. Inspectors to furnish weights, &o.
82. Fees.
83. Penalty for selling without inspection.
HOOPS AND STAVES.
84. Cullers of hoops and staves to be chosen.
85. Quality and size of staves,
80. of hogshead hoops.
Chap. 49.] inspection and sale op provisions, &c.
257
Section
87. Fees.
88. Penalty for fraud in culling,
HOPS.
89. Inspector-general to give bond.
90. to appoint deputies.
(II. No hops to be exported without inspection,
except, &c.
02. Quality, and how packed.
93. How inspected, sorted, and branded; fees.
94. Inspector's return.
95. Penalty for delay of inspectors.
96. for fraud.
97. for shifting contents of bags.
98. for altering or counti'rfeiting marks.
99. for iutermixing hops after inspection.
100. for exporting uninspected hops.
101. Hops when forfeited.
lOi. shipped coastwise, &c.
LEATHER, BOOTS, &C.
103. Inspector-general to give bonds.
104. Deputies to be appointed, who shall give
bonds.
105. Leather to be weighed and stamped.
lOti. Same subject.
107. Fees.
lOS. Sole and belt leather not to be sold until
inspected, weighed, and sealed, except, &c.
109. Penalty for buying or selling leather not
inspected.
110. for counterfeiting, &c., inspector's marks.
111. when weight varies tive per cent.
112. Appoiiitmeutofmeasurers of upper leather.
113. Duty of measurers.
114. Fees.
115. Penalty for counterfeiting measurer's
marks.
116. Manufacturers of boots, shoes, &c., may
stamp their articles ; such stamp a war-
ranty.
117. Penalty for fraudulently stamping.
LIME iVSrt LIME CASKS.
118. Inspectors of lime may be chosen; to be
sworn.
119. Casks, how branded.
120. Fees.
121. Quality of lime and casks.
122. Descriptiouof casks for Maine lime. Same
rules, &c., except as to size of casks.
123. Penalty for selling in other cask8> &c.
124. Forfeitures.
125. Penalty for shifting contents of casks.
LUMBER, ORN.VMENTAL WOOD, AND SHIP TI>^
BER.
126. Surveyor-general of lumber for Suffolk and
vicinity appointed by governor, to give
bond, &c.
127. to appoint deputies. Not to deal in lum-
ber.
128. to receive applications and direct surveys.
129. to keep record of surveys, fees, &c.
130. to make annual return to secretary.
131. Surveyors of lumber, appointment {rf*.
132. duties of.
133. Boards and planks.
134. Joists and dimension timber.
135. Spruce, hemlock, juniper, southern pine,
&c.
130. Ash, maple, &c., boards, &c.
137. Hewn timber.
i:iS. Oak, juniper, and spruce knees.
139. Mahogany and cedar.
140. Hewn and round ship timber. White and
Norway pine, how marked.
22* 33
Section
141. Fees.
142. Penalty on surveyors for fraud, neglect, &c
143. on persons selling without survey.
144. on person acting as surveyor without au-
thority.
MARBLE.
145. City and town authorities may establish or-
diuances for survey of marble.
METALS AND ORES.
146. Assayers of ores and metals; appointment.
147. Duties and compensation.
MILK.
148. Inspectors of milk, how appointed, to be
sworn and give notice.
149. to keep oflSce, books, &c. May enter
stores, &c., and take and analyze milk, &c.
150. Measures to be sealed.
151. Penalty for neglect to record name, &c. ;
for selling by measures not sealed, &c. ; for
selling adulterated milk, &c.
nails.
152. Xails and brads, how to be made and
packed.
153. Manufacturer's name to be branded on cask.
154. Forfeiture and pcmtlty.
155. Penalty for counterfeiting brand, shifting
contents of casks, &c.
156. for attempting to transport out of state
nails not branded, &c.
OILS.
157. What shall be deemed pure spermaceti oil.
158. Penalty for adulteration.
159. for selling adulterated oil as pure oil,
160. Same subject.
161. Test to be Harris's oleometer.
PAPER,
162. Paper, how packed and marked.
163. Penalty for selling paper not packed, &c.
1(H. Forfeiture,
POT AND PEARL ASHES.
165. Inspector-general to give bond.
166. Deputies to be appointed, to give bonds,
and be sworn.
167. Casks, quality and size of.
168. how branded.
169. Ashes, how inspected ; sorts, &c.
170. Casks to be weighed.
171. Penalty for unreasonable delay.
172. Inspector-general to make returns.
173. Fees.
174. Inspector's proportion of deputies' fees.
'175. Inspectors may search vessels. Forfeiture.
176. Penalty on masters, &c., for receivmg ashes
not branded.
177. for obstructing search.
178. for branding falsely.
179. for shifting contents of casks.
POTATOES, ONIONS, AND SALT.
180. Potatoes, onions, and salt; weight, meas-
urement. Penalties.
WOOD, BARK, .A^'D COAL.
181. Dimensions of cord wood.
182. Penalty for selling wood, Ac, not measured.
183. Fees.
184. Wood brought by water, how measured.
Towns may make regulations, &c.
185. Carters to have tickets.
180. Cities may regulate inspection and sale of
biU'k.
258
INSPECTION AND SALE — BEEF, BREAD, BUTTER AND LARD. [ChAP. 49.
Section
187. Certain coals to be sold by wcig^ht, except,
&c.
188. Wcif^hers who are not sellers to be ap-
pointed and sworn.
189. Seller to procure certificate of weight.
190. Forfeiture, &c.
Section
191. Form and dimensions of charcoal measures.
192. Dimensions of charcoal boxes, bins, or cans.
193. Penalties for illci^al measures.
191. Persons to be appointed to seize illegal
measures, &o., and arrest without warrant,
&c.
Inspectors-gen-
eral, how ap-
pointed.
To be sworn,
&c.
R. S. 28, §§ 1, 2,
3.
Deputy -inspect-
ors.
K. S. 28, §4.
Weighers of
beef, wlien and
how appointed.
K. S. 28, § 30.
Fees for weigh-
ing.
K. S. 28, § 38.
APPOINTMENT OF INSPECTOES-GENEKAL, &C.
Section 1. There shall be inspectors-general of butter and lard, fish,
hops, leather, and pot and pearl ashes, appointed by the governor with
the advice and consent of the council, for the term of five years from
the time of their respective appointments, unless sooner removed by
the governor and council, wlio, before entering upon the duties of their
respective offices, sh.ill be sworn. The inspectors-general now in office
shall hold their offices according to tlie term of their resj^ective commis-
sions unless sooner removed.
Sect. 2. Each ins])ector-general may appoint deputy-inspectors
removable at his pleasure, who shall once in every six months make
such returns to him as he requires to carry into efiect the provisions of
this chapter.
BEEF.
Sect. .3. The mayor and .aldermen and selectmen of each city and
town where beef cattle are sold for the ]nirpose of market or barrelling,
shall a])point one or more persons, conveniently situated in such city or
town, and not dealers in cattle, to be weighers of beef; who shall be
sworn.
Sect. 4. The fees for weighing shall be as follows : For weighing any
number of cattle not c.Kceeding five, twenty cents each ; for all above
five anil not exceeding ten, fifteen cents each ; for all above ten and not
exceeding twenty, ten cents each ; for all above twenty, five cents each
after the first twenty ; and twelve and a half cents for each certificate,
which shall contain the several weights of all the cattle offered for
weight by one person, unless otherwise regulated by the seller thereof;
which shall be paid by the seller.
Bread, weight
of, how sohl.
1859, ir4, § 1.
prices of, Ac,
to be displayed,
where sold.
1859, 174, § 3.
to be weighed,
&c.
1859, 174, § 4.
Penalty.
1S59, 174, §5.
Rolls, .fee.
1859, 174, §§ 2, 4.
BREAD.
Sect. 5. A loaf of bread for sale shall be two pounds in W9ight.
Bread, exce]it that composed in chief part of rye or maize, shall be sold
in loaves, lialf, three-quarter, and quarter, loaves, but not otherwise.
Sect. 6. In every shop or place where bread is sold by retail, and in
each front window thereof, there shall be conspicuously placed a card,
on which shall be legibly printed a list of the difi'erent kinds and quaU-
ties of loaves sold there, with the price of each by the loafj half, tliree-
quarter, and quarter, loaf
Sect. 7. Bread sold in any shop or jilace .shall be weighed in pres-
ence of the buyer, and if found deficient in weight, bread shall be added
to make up the legal weight.
Sect. 8. Whoever violates either of the provisions of the three pre-
ceding sections sh.all forfeit ten doll.ars for each ofibnce, to be recovered
in an action of tort to the use of the party suing tlierefor.
Sect. 9. The four preceding sections .shall not apply to roUs orfiincy
bread weighing less than one-quarter of a pound.
Inspector-gen-
eral of butter,
&c., to give
bond.
E. S. 28, § 44.
BUTTER AND LARD.
Sect. 10. The inspector-general of butter and lard shall give bond
witli sufficient sureties to the treasurer of the commonwealth, in the
penal sum of one thousand dollars.
Chap. 49.] inspection and sale — butter and lard. 259
Sect. 11. He shall, in every seaport from wliidi Imtter and Inrd are Deputies to be
exported, aud in such other places as he shall judge necessary, ajipoint ^h'e'"boii<i,' ^d
deijutv-instiectors, for whose official conduct he sliall be answerable ; Be sworn.
1 i 11 1 1 i- »i • ^ 1 ■ .■ x-^i K. S. 28, §43.
who shall be sworn before the inspector-general or a justice of the peace,
and give bond to the inspector-general witli sufficient sureties in the penal
sum of five hundred dollars for the faithful discharge of the duties of
their office.
Sect. 12. The inspector-general or his deputies shall examine casks. Manner of in-
kegs, or firkins, containing butter or lard inten<led to be ex])orted, and iirs^'^'-iSM
with a hollow iron searcher perforate the contents thereof from one head «■
to the other, and tliereby draw out so much as shall determine the quality
of the whole ; and shall see that it has been preserved with a due juopor-
tion of good fine salt, that it is sweet and in all respects fit to be exported
to any foreign market without danger of spoiling; and they shall return
forthwith the butter or lard so drawn out of any cask, keg, or firkin.
Sect. 13. Each cask, keg, or firkin, of butter or lard, which ajipears Brands of caeke,
to be good and fit to be exported, shall be branded in plain and legible *% js 549
letters with the words huW'i; or lard, a.ni\ first, or second, or third ; and
all other butter or lard with tlie word refuse ; and each cask, keg, or
firkin, so inspected, shall be also branded with the letters Ma.s.s., (for
Massachusetts,) the name of the place where it is inspected, the initial
letter of the christian name of the inspector-general or deinity, and the
whole of his surname, and the month and year in which the same is
inspected. When the name of the month consists of more than one
syllable it may [be] abljreviated.
Sect. 14. The several inspectors may, when requested, ins])ect and size of kegs and
brand kegs of butter or lard of the following sizes, namely: kegs twelve K""s"aj°\|'|o'*
inches long and of seven and a half inches diameter in the heads, or ten 5i.
inches long with six inches head. All other casks, kegs, or firkins, in
which butter or lard is packed for exportation, shall be made of sound
and well-seasoned white oak or ash staves and heading, full bound,
twelve and a half inches in length, and eight and a half inches diameter
in the head, or fifteen inches in length, and ten and a half inches diame-
ter in the head.
Sect. 15. Each cask, keg, or firkin, before butter or lard is packed Casks, &c., to
therein, shall be filled with a strong brine, which shall remain therein be lii led with
1 1 ^ ^ • • ■ -\ f 1 11 nrine before
three days ; anfl as soon as the bnne is emptied irom the cask, keg, or piieking ; how
firkin, it shall be weighed by the owner of such butter or lard, who shall r.'s!^^,' § 62.
with a marking-iron mark on one of the heads thereof the full weight of
the cask, keg, or firkin, and brand the initial letter of his christian name
and his surname at large.
Sect. 16. The inspector-general shall annually in the month of May inspeetor-gen-
make a return to the secretary's office of the whole number of casks, tir|,8° "'"'^'^ '""
the difterent qualities, and tlie weight of each qualitv, of butter and Contents.
lard inspected by him and his deputies during the 3'ear preceding the • ■ > s ■
first day of said month.
Sect. 17. The fees of the inspector-general or any deputy for ser- Fees,
^dces in inspecting, branding, weighing, and delivering to the owner an k. S. 28, §54.
invoice or weigh note, under his hand, of the weight of each cask, keg,
or firkin, shall be eight cents for each cask, keg, or firkin, to be paid by
the purchaser of the same.
Sect. 18. If the inspector-general or a deputy, on application made Penalty for de-
for the inspection of butter or lard, unreasonably refuses, neglects, or gp'^'c"" *" '"'
delays, to jiroeeed to such inspection and Ijranding, for the space of three k. s. 28, §55.
hours after application so made to him, he shall for each offence forfeit
two dollars.
Sect. 19. Butter or lard imported into this state from another of imported but^
the United States may be shipped without inspection. ^I'^'s 28 §§53
Sect. 20. Whoever counterfeits a brand belonging to or used by the 58.
260
INSPECTION AND SALE — CHOCOLATE, FIRE-ARMS. [ChAP. 49.
Vontilty for
counterfeiting
brands.
R. S. 28, § 56.
for putting
otliLT hutter in-
to branded kegs,
&a.
K. S. 28, § 57.
for exporting,
Ac, butter, Sic,
ni>t inspected.
It. S. 2S, §§ 40,
OS.
"When butter,
&c., may be
seized and li-
belled.
U. S. 28, ? 59.
K. S. US, §§20,
21.
inspector or his deputies, or impresses or brands a cask, keg, or firkin,
of butter or lard, with a brand or brands of such ins])ector, or witli a
counterfeit brand, shall forfeit ten dollars for each otlence ; and if an
owner of butter or lard falsely marks a cask, keg, or firkin thereof, he
shall forfeit three dollars for each oflence.
Sect. '21. Whoever empties a cask, keg, or firkin, of butter or lard,
inspected and branded as by this chapter is required, and puts in other
butter or lard for sale or exportation without first cutting out the brands
and marks, shall for each such cask, keg, or firkin, forfeit ten dollars.
Sect. '22. Whoever exports or ships for exportation from this state
butter or lard not ins])ected and branded as aforesaid (except butter and
lard imported into this state from any other of the United States,) shall
forfeit one dollar ; and the master of every such vessel shall forfeit fifty
cents for each cask, keg, or firkin, so shipped or exported.
Sect. 23. If butter or lard is shipped for exportation or exported
from the state contrary to the provisions of this chapter, the inspector-
general or a dej)uty-inspeetor may seize and libel the same according to
the provisions of chapter one hundred and fifty-three, concerning the
seizing and libellins of forfeited soods.
rUocoLite, how
to be stamped.
K. S. 2«, § liO.
ingredients of.
Bo."ves, iiow
branded.
li. S. 2S, § 01.
when may be
seized, &e.
R. S. 2S, § 02.
It. .S. US, §§20,
21, &.C.
Provers of fire-
arms to be ap-
pointed and
sworn.
!l. S. 28, §03.
ISii, 207.
Fire-arms, how
to be proved.
K. S. 28, §04.
how stamped.
E. S. 28, § 05.
CHOCOLATE.
Sect. 24. Manufacturers of chocolate shall not make any cake of
chocohite except in jians in which shall be staiuj)ed the first letter of
their christian name, the whole of their surname, the name of the town
where they reside, and tlie quality of the chocolate in figures, JVo. 1,
iVb. 2, JVo. 3, as the case may be, and the letters Mass.
Sect. 25. Number one shall be made of cocoa of the first quality,
number two of the second quality of cocoa, and both shall be free from
adulteration ; number three may be made of the interior kinds and
quality of cocoa. Each box containing chocolate shall be branded on
the end thereof witli the word chocolate, the name of the manufacturer,
the town where manufactured, and the quality, as described and directed
for the pans in the preceding section.
Sect. 26. If chocolate manufactured in this state is offered for sale
or found within the same, not being of one of the qualities described in
the two preceding sections and marked as therein directed, the same
may be seized and libelled.
FIEE-AEMS.
Sect. 27. The governor, with the advice and consent of the council,
shall appoint suitable persons, not exceeding si-x in each county where
the manufacture of fire-arms is carried on, to be provers of tire-arms,
who shall be sworn, and who shall jjrove all musket barrels and jiistol
barrels which, being sufficiently ground, bored, and breeched, are ottered
to them to be proved.
Sect. 28. All musket barrels and pistol barrels manufactured in this
state shall before they are sold or stocked, be proved by one of the
provers with a ball suited to the bore of the barrel and a charge of jjow-
der equal in weight to the ball. The jtowder used in such proof shall
be such that one ounce thereof in a howitzer of four and a half inch
calibre at an elevation of forty-five degrees shall be of sufficient j)ower
to carry a twelve-pound shot one hundred and thirty yards ; or one
ounce thereof in a howitzer of five and a half inch calibre at an eleva-
tion of forty-five degrees shall be sufficient to carry a twenty-four-jjound
shot eighty yards.
Sect. 29. If they stand the proof and in no respect fail, the prover
shall stamp them on the upper side, within one and a half inches of the
breech, with a stamp consisting of the initial letters of the prover's name,
Chap. 40.] inspection and sale — fish. 2G1
and over those letters the letter P, and in the lino with the initial let-
tors and farther np the barrel the figures dosignating the year in which
the proof is made, and over such figures the letter M, which letters and
figures sliall be so dee]ily impressed on the barrel that the same cannot
be erased or disligured, and shall be in the form following: /s. isw.
When barrels burst or in any manner fail in the proving as aforesaid, so
that in the oi)inion of the prover they are unfit for use, they shall not be
stamped.
Sect. 30. For so proving each musket barrel the prover shall be en- Fees for prov-
titled to receive from the owner thirty-three cents, and for each ])istol i"fs"'":^"™M.'
barrel tweuty-five cents, whether the same stand proof and are stamped,
or not.
Sect. 31. Whoever manufactures within this state a musket or jiistol, Penalty for
or sells or delivers, or knowingly purchases, a musket or ]iistol so nianu- &"7'°?mf[Iit°'
factnred, without hiivinLT the barrels first iiroved, marked, and stanijied, proved,
or sells, stocks, or finislies, or knowingly purchases, a musket barrel or ' ' '' '
pistol barrel mauufictured within this state, which has not been ])roved,
marked, and stam])ed, shall forfeit for each offence ten dollars: prorhhd.,
that the penalties ami jirovisions mentioned in this section shall not ex-
tend to muskets or pistols, or musket or pistol barrels, manufactured in
an armory of the United States, for the use of, or in execution of a con-
tract for the manufacture of fire-arms made or to be made with, the
United States.
Sect. 32. Whoever forges or alters the stamp of a prover of fire- for forging
arms, impressed on a musket or pistol barrel pursuant to law, shall pay fJl's ^^^ 5 5g
a fine not exceeding fifty dollars.
FISH.
Sect. 33. The inspector-general of fish shall give bond with suflR- inspector-gen-
cient sureties to the treasurer of the commonwealth in tjie ]icnal sum Ixi'Iirt*" °'^''
of ten thousand dollars, and shall have no interest directly or indirectly k. s. 2S, §n!i.
m the cure or jiackmg of pu^kled nsh.
Sect. 34. He may apjioint deputy-inspectors in every seajiort or may appoint
other town where such fish is jiacked for exportation, for whose official siil'i'i'.''ive"bond
conduct he shall l)e answerable. He sliall take bonds of each of them ">ui ijeBworn.
with sufficient sureties, and shall receive from each dejnity an excise or k3-!,'u;o,§l.'
fee for his commission and bond, of one dollar, and no more. The depu-
ties shall be sworn either before the inspector-general or some justice of
the ]5eace.
Sect. 35. The inspector-general and deputy-inspectors shall inspect to inspect all
all fish for the inspection of which provision is made in this chapter. it'! s.'asj §71.
Sect. 36. Under the supervision of the inspector-general and his Kish, how pre-
deputies respectively, all kinds of sjilit pickled fish and fish for barrelling, J^iurbralfded'''
exce])t herring, and all codfish tongues and sounds, halibut fins and k- S- Js, §;.■!.
napes, and sword fish, whenever said articles are intended for ex])orta- ' ~'" ' •
tion, shall be well struck with salt or pickle in the first instance, and ])i-e-
served sweet and free from rust, taint, or damage ; and when the same
are found in good order and of good quality, they shall be jiacked either
in tierces containing each three hundred pounils, in barrels containing
each two hundred pounds, in half barrels containing each one hundred
pounds, in quarter barrels containing each fifty jiounds, in eighths of a
barrel or kids containing each twenty-five pounds, or in kids, or pack-
ages containing each less than twenty-five ])ounds on which the num-
ber of pounils therein shall be branded. Every cask, kid, or package,
shall 1)0 packed with good clean salt suitable for the ];iurpose, and after
packing with sufficient salt to preserve its contents, shall be headed or
well secured, and filled up with a clean strong pickle.
Sect. 37. There shall be four qualities of mackerel, three of salmon
262 INSPECTION AND SALE — FISH. [ChAP. 49.
Miickerei.Bai- and sliacl, and two of other kinds of pickled fish. Mackerel of the best
im'n'ibcr^'ni'cas''' quality, Dot mutilated, measuring not less than thirteen inches from the
mi, and quauty extremity of the head to the crotch or fork of the tail, free from rust,
ij.' s. 28, § 73. taint, or damage, shall be branded yuMmitr owe. The next best quality,
isio, 170, § 1. being not less than eleven inches, measuring as aforesaid, free Irom rust,
taint, or damage shall be branded number two. Those that remain after
the above selections, if free from taint or damage, and not less than
thirteen inches, measuring as aforesaid, sliall be branded mmihtr three,
large. Those of the next inferior quality, free from taint or damage, not
less than ten inches in length as aforesaid, shall be branded number three.
All other mackerel free from taint or damage shall be branded number
four. Those salmon and shad whieR are of the best quality for family
use, free from rust or damage, shall be selected for number one and num-
ber two, the best of them selected and branded number one, the residue
number two ; all that remain free fi-om taint and sound shall be branded
number three. Of all other pickled fish the best which are free trom
taint and damage shall be branded number one, those that remain free
from taint and sound, number two.
Casks, &c., to Sect. 38. Each cask, kid, or package, shall be filled with fish of the
cont:un same game kind, or ijarts of the same kind of fish ; and whoever intermixes,
kind; penalty i •/. • i ,■ , , • , i i , i i
for shiftingcon- takes out, or shuts, any inspected nsh winch are ]jacked or branded as
k"s. 28, §74. aforesaid, or puts in other fish for sale or exportation, shall forfeit fifteen
i*!9, ia2, §1. dollars for each package so altered. If any casualty renders it neces-
sary to repack a cask of inspected fish, it shall in all cases be done by an
inspector of such fish,
how branded. Skct. .39. The inspector shall brand in plain legible letters on the
R. s. 28, § 7d. ijead of each cask of fish inspected by him, the denomination of the fish
packed or repacked therein, the initials of his christian name and the
M'hole of his surname, and, if a deputy, the n:mie of the ]ilace for which
he is appointed, the letters Mass., and the year in which the fish are
packed; and shall also, when in his judgment it may be necessary,
nail in a suitable manner any cask in which fish are packed.
Fish of foreign Sect. 40. Pickled fish of foreign catch, on which an import duty is
u.' s! dutf^how lai"^^ ^y the laws of the United States, which is brought into this state
branded. and here inspected or reinspccted, shall, in addition to the brand men-
' ' ■ tioued in the preceding sections, be branded with the word " Foreign "
on the head of each cask, barrel, or package, in letters not less than one
inch in length, and separate and distinct from the other brands.
Penalty on in- Sect. 41. If ail inspector of fish ins]iects or reinspects any fish of
spcctorforneg- ^i-ij.|-,j^.j^ ^..^(.j-.j-^ ^^ imported and brought into this state, and refuses or
isou, 131, §2. neglects to comply with the requirements of the preceding section, he
shall forfeit and pay for such refusal or neglect, fifteen dollars for every
cask, barrel, or package, so neglected.
Certain fish not Sect. 42. Pickled fish, duly inspected in the state or country in
to be reinspect- ^^.jjj^.], j^ jj, packed, shall uot be subject to reinsjiection in this state.
K. s. 28, §77. Sect. 43. Small fish, which are usually ])acked whole with dry salt
nacked^*''' ''°^'' ^^" I'i'^'kle. shall be ]jut in good casks of the size and materials retpured
K. S. 28, §76. in this cha])ter for the packing of split jiickled fish, and shall be jiacked
close in the cask and well salted ; the casks .shall be filled full with the
fish and salt, and no more salt shall be put with the fish than is neces-
sary for their preservation; and the casks containing such whole fish
shall be branded with the denomination of the fish, and a like designa-
tion of the qualities as is before prescribed in this chapter in respect to
the qualities of other pickled fish.
Casks, quality Sect. 44. Casks used for packing or repacking ]iickled fish intended
il'Vas"!';^."''' ■^°^' exportation, except casks containing less tlian twenty-five jjounds
weight, shall be made of sound, well-seasoned white oak, asli, red oak,
spruce, i)iiie, or chestnut staves, of rift timber, sound and well-seasoned,
with heading of either of said kinds of wood, and \\heu of pine such
Chap. 49.] inspection and sale — fish. 263
Iic;uling shall be free from sap and knots, and be planed ; the barrels,
half barrels, and tierces, shall be well hooped with at least three good
hoops of sufficient substance on each bilge and three hoops of the hke
quality on each chime ; the barrel staves shall be twenty-eight inches in
length, and the heads shall be seventeen inches between the chimes ;
the barrels shall contain not less than twenty-eight nor more than
twenty-nine gallons each ; the half barrels not less than fifteen gallons
each; and the tierces not less than forty-five nor more than forty-six
gallons each. Each cask shall be made in a workmanlike manner, and
branded on its side, near the [bung], with the name of the maker.
Sect. 45. The inspector-general or his de])Uties shall strictly examine Casks to be ex-
and inspect all casks in which th(»- may be required to pack fish; and k"'s.'^28, § 79.
shall reject such as are not made m a substantial manner and according
to the j)rovisions of this chapter.
Sect. 46. The fees for inspecting and branding, exclusive of coop- rcpsforin-
erage, shall be, for each tierce fourteen cents, each barrel nine cents, ^''s^'M'tw
each half barrel six cents, each cask of a smaller denomination three
cents, and, in addition to the fees aforesaid, one cent for each cask
nailed as before provided ; and all fees shall in the first instance be paid
by the original owner of the fish or by the ]ierson employing the inspect-
or, and may be recovered by them respectively oi" the person who after-
wards purchases or exports the same.
Sect. 47. The inspector-general may receive from each of his depu- inspector's pro-
ties for every cask offish inspected by liim, the following fees : for each ties''!!""'^'''^''""
tierce, four cents, for each barrel, one cent, for each half barrel, half a it. .s. lv, §si.
cent, and for each smaller cask, one-quarter of a cent.
Sect. 48. Alewives or herrings intended to be packed for sale or aicwIvcb, &c.,
exportation, shall be sufficiently salted and smoked to cure and preserve '\",7,J',!|.k'd^'^
the same, and afterwards shall be closely packed in boxes in clear and k. s. as, §k2.
dry weather.
Sect. 49. Smoked alewives or herrings shall be divided and sorted how sorted
by the inspector or his deputy, and denominated according to their 5?. s'-'lis,' §»3. '
quality, number one and manber tico. Number one shall consist of all
the largest and best cured fish ; number two of the smaller but well-
cured fish ; and in all cases, those which are belly broken, tainted,
scorched or burnt, slack salted, or not sufficiently smoked, shall be taken
out as refuse.
Sect. 50. Boxes made for the purpose of packing .smoked alewives noxcs, quality
or hen-ings, and containing the same, shall be made of good sound i{!'s!^t£"s'ti "*"
boards sawed and well seasoned ; the sides, top, and bottom, of not less
than half inch, and the ends of not less than three-quarters inch, boards,
securely nailed, and shall be seventeen inches in length, eleven inches
in breadth, and six inches in depth, in the clear, inside.
Sect. 51. Each box of alewives or herrings inspected shall be Brands,
branded on the top by the inspecting officer with the first letter of his i83u,'i3j/§^.'
christian name, the whole of his surname, the name of the town where
it was inspected, with the addition of Mass., and also with the quality
of number one, or number tico. Herrings taken on the coasts of Nova
Scotia, Newfoundland, Labrador, or Magdalen Islands, and brought into
this state, shall also be branded with the name of the place or coast
where taken.
Sect. 52. The fees for inspecting, packing, and branding, shall be Fees for in-
five cents for each box, which shall be paid by the purchaser ; ami the k'T'">'''§'»o
inspector-general may require fi-om liis deputies one cent for each box
inspected, packed, and branded by them.
Sect. 53. The inspector-general shall, in the month of January an- inspcetor-pn-
nualh', make a return into the office of the secretary of the common- ti'rlis^&J:^ "^
wealth, of all the fish inspected by him and his de]iuties during the year n- s. -js, §72.
preceding the first day of said January, designating the quantities, kinds, " '
•2U
INSPECTION AND SALE FRUIT, NUTS, AND VEGETABLES. [ChAP. 49.
ronalty for ex-
I'lirting; ale-
. rives, &Q.
lor substitut-
i ig iuferior
'isli.
( 'ertaln fish not
To be reiuspcct^
1{. S. 38, § 87.
Fish, when for-
f.-ited.
i:. S. 28, §8S.
i:. S. 118, §§ 20,
■Jl, &c.
Penalty for lad-
ing uninspected
iisTi.
K. S. 28, § 89.
for sellino^
tainted fish for
food.
K. S. 28, § 90.
for branding
witliout in-
speetiug, Ac.
U. S. 28, §91.
<inintal, weight
of.
1837, 106.
Clam bait,
weio^ht, expense
of weighinj^.
1849, 48, §§ 1, 2,
and qualities of j)iekkHl and smoked fish respectively, and distinguishing
the quantities, kinds, and qualities, of pickled fish of a fir-st inspection
from those reinsj>ectcd ; and the secretary shall, as soon as may be after
receiving such returns, cause the same to be published in any newspa-
per in Boston authorized to publish the laws of the commonwealth.
Sect. 54. No smoked alewives or herrings shall be e.\j)orted from
this state unless inspected and branded as aforesaid, under a jienalty of
two dollars for each box exported ; nor shall alewives or herrings be
taken from a box, insjjected and branded as aforesaid, and replaced by
others of an inferior quality, with intent to defraud any person in the
sale of the same, under a ])enalty of five dollars for each box so changed:
provided, that all smoked herrings apd alewives, arriving from any
other state in the United States and having been there inspected, may
be exported in a vessel from this state without being reinsjiected.
Sect. 55. Pickled or smoked fish, which has not been insjiected and
branded according to the provision.s of this chapter, ))ut on board of a
boat or vessel, or into a carriage of conveyance, with intent that the
same shall be sold within, or exported from, this state, shall be forfeited,
and the inspector-general or a dejnity may seize and libel the same.
Sect. 56. If a master of a vessel or other person puts or receives on
board of a vessel, or iii a carriage of conveyance, for trans]iortation
from this state, pickled fish, or smoked fish, not inspected and branded
as provided in this clia]iter, he shall forfeit a sum not exceeding ten dol-
lars for every hundred pounds of such fish, and in the same proportion
for any other quantity.
Sect. 57. Whoever sells within this state or exports therefrom taint-
ed or damaged fish, unless with the intent that the same shall be used
for some other purjjose than as food, shall forfeit the sum of ten dollars
for every hundred pounds of such fish, and in the same ]iroportion for
any other quantity ; and u]ion a trial in such case the burden of proof
shall be upon the defendant to show for what purpiose such fish was so
exported or sold.
Sect. 58. If the ins])eetor-general or a deputy-insjieetor brands a
cask or package of fish, the contents of which he has not duly inspected,
packed, salted, or coopered, or jiermits any other jierson to use his
brands, in violation or evasion of the provisions of this chapter, he shall
forfeit twenty dollars for each oftence, and be hable to removal from
oflice.
Sect. 59. When fish arc sold liy the quintal, it shall be understood
to mean a quintal of one hundred jiounds avoirdupois, and all contracts
concerning fish sold in this manner shall be construed accordingly.
Sect. 60. When clam bait is sold by the barrel, it shall be understood
to mean two hundred and thirty jiounds avoirdupois of clams ; and all
contracts concerning clam bait sold in this manner shall be construed
accordingly. If a disagreement arises between the jnirchascr and seller
respecting its weight, either jtarty may have it weighed, and if it is not
of the weight aforesaid, the seller shall jwy the ex]iense of weighing
and coopering the same ; otherwise the purchaser shall jiay such expense.
Fruit, nuts, &r..
standard meas-
ure of.
Penalty.
1858, f«i, § 1.
See Ch. 51.
Nuts and ber-
ries measured
hv the strike.
IN'ill, -'lil, § 1.
isoi, 2;is, § 1.
feuit, nuts, and vegetables.
Sect. 61. The dry measure shall be the sole authorized public stan-
dard for measuring all fruits, vegetables, and nuts, when the same are
sold by measure. Whoever sells such articles by any other than dry
measure, shall forfeit and pay a sum not exceeding ten dollars for every
such offence.
Sect. 62. Chestnuts, walnuts, and cranben-ies and all other berries,
when sold, shall be measured liy the strike or level measure, in the same
manner as flax seed and other similar articles are measured.
Chap. 49.] inspection and sale — grain and meal, gunpowder. 265
geaut and meal.
Sect. 63. In nil contracts for the sale and delivery of wheat, corn, Grain and meai,
rye, oats, barley, buckwheat, cracked com, ground corn or corn meal, mn,%!ii.
ground rye or rye meal, and any other meal except oatmeal, the same i'^^'J?^' ^ h ,„
shall be bargained for and sold by the bushel. ' '
Sect. 64. A bushel of wheat shall be sixty pounds ; a bushel of corn Weight of
or rye, fifty-six ]iounds ; a bushel of oats, thirty-two jiounds ; a busiiel of k" s'.'as, § leo.
barley or buckwheat, forty-eight pounds; and a bushel of cracked corn, Jli^'^iUj
corn meal, rye meal, or any other meal except oatmeal, fifty pounds *"'
avoirdupois.
Sect. 6.5. The mayor and aldermen of cities and selectmen of towns MoaBurers tobe
shall annually ajjpoint one or more measurers of grain, and when but J'',il°'"**'''''
one is appointed by them they may authorize him to appoint dejnity- 11-55,2.32, §2.
measurers. Each of such measurers and deputies shall, when called '
upon by either of the parties to a contract for the sale of any quantity
exceeding one bushel of either of the articles mentioned in the pre-
ceding section, ascertain the weight thereof and give a certificate of the
number of bushels as ascertained by weight according to the rule therein
prescribed.
Sect. 66. Whoever sells or delivers any quantity exceeding one Penalty for
bushel of either of the articles aforesaid, witliout the same having been wS",', moa^urer
weighed by one of the public measurers appointed under the preceding "'^.'/mp'oyL'd.
section, shall forfeit the sum of two dollars for every measured bushel '"'■"''
so delivered not containing the number of jiounds herein before required,
to be recovered by the purchaser in an action of tort.
Sect. 67. Tlie iees of such measurers shall be prescribed by the Foesofmoas-
m.ayor and aldermen or the selectmen of the several places in which pay.'"''"*"
they are ajiiioiuted, and shall be paid one-half by the seller and one-half isss, 232, §4.
by the purchaser.
Sect. 68. If a measurer or deputy-measurer uses, or has in his pos- Penalty for
session with intent to use, for the purposes herein provided, any false &J^°orcoi'iu-'
weiirhts, scales, balance, or other instrament for weighing, or colludes rfon, &c.
with the purchaser or seller with intent to defraud the other part}', or '-— >»
makes and utters a fiilse and fraudulent certificate under this chapter,
he may be removed from office by the m.ayor and aldermen or select-
men, and shall also on conviction thereof be punished by a fine not
exceeding five hundi'ed dollars and by imprisonment not exceeding six
months in the house of correction.
GtrXPOWDER.
Sect. 69. Gunpowder manufactured in this state shall be put into Qu.aiity and sizo
strong and tight casks containing twenty-five pounds, fifty pounils, or ('dv'^',',*iS'np*vder.
one hundred i)ounds, each, unless the same is well secured in copi)er, k. s~ 28, § 92.
tin, or brass cani.sters holding not exceeding five pounds each, and J.j. ' ''' '
closely covered with copper, brass, or tin covers.
Sect. 70. Each cask containing gun])owder manufactured within ah casks to be
this state, or brought into the same by land or water and landed, shall k'.'s) 2s'. § 93.
be marked on the head with black paint, in legible characters, with the
word gunpowder, the name of the manufacturer, the weight of the cask,
and the year in which the powder was manuf ictured ; and each canister
of guii])owder shall be marked with tiie word gunpov-ckr.
Sei T. 71. Whoever knowingly marks a cask of gunpowder with the Penalty for
name of any ]ierson other than the manufacturer of the same, or changes fllrjfc.™'"^''
gunpowder from a cask marked with the n.aineof one manufacturer into k.^s. 28, § 94.
a cask marked with the name of another manufacturer, shall for each
offence forfeit a sum not exceeding twenty dollars.
23 34
266
INSPECTION AND SALE — HAY.
[Chap. 49.
"Weighers of
hay to be ap-
pomtcd.
It. S. 13, § 38.
R. S. 28, §§ 05,
duty of.
E. S. 2S, § 90.
may be re-
moved.
K. S. ■J.S § 97.
Penalty for set-
ting iil> Ii;i\'
Realrs witiioiit
autimritv.
K. S. :;»,'§ 9s.
Pressed hay,
how branik-d.
18.30, 2-H), § 1.
Forfeiture for
sellin;^ without
brand.
K. S. US, §§ 20,
21.
1830, 210, §§2, .3.
In^ipectors of
bundle hay, ap-
pointment of;
to be yworn, ,tc.
1847, 2W,5§ 1,2.
duties of.
1»17, 240, § 3.
Bundle hay,
ho;\- numbered
and marked.
ItHr, 246, § 4.
Inspectors to
furnish
weights, &e.
1847, 240, § 5.
Fees.
1847, 240, § 0.
Penalty for sell-
in^^ without iu-
spection, Are.
1W7, 240, § 7.
HAT.
Sect. 72. In cities in which tlie city council and in towns in which
the iiihabit.ants shall adojit this and the three following sections, the
mayor and aldermen and selectmen may from time to time ajijioiiit, for
a term not exceeding one year, some person or persons to have the
superintendence of the hay scales belonging to their place, who shall
weigh hay offered for sale therein, and any other article oii'ered to be
weighed.
Sect. 73. The persons so appointed shall conform to all sucli rules
and regulations as shall be establislied by the city council or selectmen
respectively concerning the hay scales, and the comj^ensation or fees for
weighing liay and other articles.
Sect. 74. The mayor and aldennen or selectmen may remove any
weigher of hay, and fiU any vacancy that may occur from death or other-
wise.
Sect. 75. If a person not so appointed sets up hay scales in a town
or city, for the purpose of weighing hay or other articles, he shall forfeit
twenty dollars a month so long as the same are continued, to be recov-
ered in an action of tort and ajipropriated to the use of the city or town.
Sect. 7G. Pressed hay ofl'ered for sale sliall be branded u]>on the
crate enclosing it with the first letter of the christian name and the whole
of the surname of the person packing and screwing or otlierwise pressing
said hay, and with the name of the city or town and state where the
hay is pressed.
Sec:t. 77. Pressed hay offered for sale without being so liranded shall
be forfeited, one-half to the person or persons prosecuting therefor and
the other half to the use of the city or town where the same is so offered
for sale, and may be seized and libelled.
Sect. 78. The mayor and aldermen and selectmen of each city and
town in which bale or bundle hay is sold, may, on tlie jietition of ten or
more legal voters of sucli city or town, annually ajipoint one or more
persons as insjiectors of bale or bundle hay, who sliall be sworn ; and
may remove any insiiector so appointed, and fiU any vacancy that may
occur from death or otherwise.
Sect. 79. Each inspector shall inspect and weigh all bale or bundle
hay within the limits of the city, town, or ward, lor wliieh he may be
.ap]jointed, when requested so to do by the owner or vendor.
Sect. 80. Bales or bundles of hay so inspected wliich are found to
be sweet, of good quality, and free from damage or improper mixture,
shall lie branded or marked JVo. 1. Bales or bundles found to be sweet,
and free from damage or improper mixture, but consisting of hay of a
secondary quality, shall be branded or marked JVo. 2. Bales or bundles
found to be wet, or in any way damaged, or which shall contain straw
or other substances not valuable as hay, shall be branded or marked bad.
Each bale or bundle so inspected shall be brandeil or marked with the
first letter of the christian name and the whole of the surname of the
inspector, and the name of the place for which he is inspector, together
with the month and year when inspected, and also the net weight of
the bundle.
Sect. 81. Each inspector shall furnish himself with proper scales,
weights, seals, and other suitable instruments, for the purposes aforesaid.
Sect. 82. The fees .for inspecting, weighing, and marking, hay, as
jirovided for in this cha]iter, shall be fixed by the respective officers
having the power of apjiointment, and shall be paid by the employer of
the inspector.
Sect. 83. Whoever sells bale or bundle hay in a place where an
inspector is a]ipointed, which has not been inspected and weiglicd as
herein provided, shall forfeit for each bale or bundle so sold two dollars ;
Chap. 49.] inspection and sale — hoops and staves, hops. 267
but no inspection need be made where the vendor and vendee agree to
waive an inspection.
HOOPS AND STAVES.
Sect. 84. In every maritime place from which staves are usually Cullers of
ex]5orted, there shall be annually chosen two or more suitable persons BtTv^Btobe
to be viewers and cullers of staves and hoops, who shall be sworn. u^"!'"'?;
Skct. 85. White oak butt staves shall be at least five feet in length, Q„auty and size
five inches wide, and one inch and a quarter thick on the heart or thin- of staves,
nest edge and every part thereof; white oak pipe staves shall be at least ' '
four feet and eight inches in length, four inclies broad in the narrowest
jKirt, and not less than three-quarters of an inch thick on the heart or
tiiiiiiu'st edge : white oak and red oak hogshead staves shall be at least
f )rty-two inches long, and not less than half an inch thick on the heart
or thinnest edge ; white oak and red oak barrel staves for foreign market
shall be thirty-two inches long, and for home use thirty inches long, and
shall average half an inch thick on the heart or thinnest edge ; white
oak and red oak hogshead and barrel staves shall be at feast four inches
in breadth, and none less than three inches in breadth in the narrowest
part, and those of the breadth last mentioned shall be clear of sap ; and
all staves shall be well and proportionably split.
Sect. 86. Hogshead hoops that are exposed to sale or exported shall of hogshead
be from ten to thirteen feet in length, of white oak or walnut, of good k°s!^28, § 102.
and sufficient substance, and well shaved ; those of oak shall not be less
than one inch broad at the least end, and those of walnut shall not be
less than three-quarters of an inch broad at the least end ; each bundle
shall consist of thirty hoops; .and all hoops of ten, twelve, and thirteen
feet respectively, shall be made up in distinct l)undles by themselves.
If hoojjs of less dimensions than those prescribed by law, are jiacked, or
if a buniUe contains less than thirty hoo])s, the bundle shall be forfeited,
and may be seized by the culler of hoops and libelled for the benefit of
the place where it is offered for sale.
Sect. 87. Cullers sh.all be .allowed for their time and services, fifty Fees for cuU-
cents a thousand for hoops, twenty-eight cents a thousand for barrel '^^s^ ^ .^^
staves, thirty-three cents a thousand for hogshead staves, forty cents a '
thousand for jiipe staves, and forty-four cents a thousand for butt staves,
as well refuse as merchantable : the merchantable to be paid for by the
buyer, the refuse by the seller.
Sect. 88. If a culler connives .at or is guilty of fraud in culling penalty for
staves or hoojis, he shall forfeit fifty dollars for each ofi"ence; and if he £™s'^ ^,7l'JJ5-
refuses to perform service when requested shall forteit five dollars.
HOPS.
Sect. 89. The inspector-general of hops shall give bond with sufii- inspcctor-gen-
cient sureties to the treasurer of the commonwealth, in the penal sum bond." ^™
of three thousand dollars. _ «• «• 28, § 104.
Sect. 90. He shall apjioint one or more deputy inspectors in such to appoint
parts of the state as will best accommodate the growers and consumers r.'s'. 28"'§§ 105,
of liops; shall be responsible for their offici;d conduct, may require from n".
each of them sufficient bonds with sureties, and receive from each one-
fiftii part of the fees received by him.
Sect. 91. No hops, other than those which are of the growth of No hops to bo
another state, as hereinafter mentioned, sliall be exported from this state, ouUiispVction,"
unless they are of the qualities prescribed by this chapter, and have been j|"'g''^*.''io-
duly inspected and marked accordinglj-, and are in square bags or pock-
ets, each bag to contain as nearly as may be four hundred pounds, and
each pocket two hundred pounds weight of merchantable hojis. Hops
of the growth of another state being duly inspected therein and accom-
268
INSPECTION AND SALE — HOPS.
[Chap. 49.
Hops, quality
of, and how
packed.
K. S. 2S, § 108.
how iiiRpcct^
ed, sorted, aud
branded.
Fees.
K. S. 28, § 109.
Inspector's re-
turn.
K. S. 28, § lOO.
Penalty for de-
lay of inspect-
ors.
K. S. 28, § 111.
for fraud of
Inspector.
K. S. 28, § 112.
for shifting
contents of
bags.
E. S. 28, § 11.1.
for altering
or counteri'eit-
lug marks.
K. S. 28, § IH.
for intermix-
ing hops alter
inspection.
K. S. 28, § 115.
for exporting
uninspected
liops.
K. S. 28, § llli.
Hops, when
forfeited.
R. S. 28, § lir.
R. 8.118, §§20,
21, &c.
panied with certificates of the same, shall not be subject to reinspection
in this state.
Sect. 92. No hops shall be deemed merchantable unless they have
been well picked, are free from steins and leaves, and projierly kiln-
dried. The bags or pockets in whicli they are packed shall be m;ide
sufficiently strong to preserve the hops from damage, and of such a
texture as will fairly receive the marks of the cultivator and inspector;
and they shall be marked with the name of the cultivator and the place
in which he lives.
Sect. 93. The inspector-general or one of his deputies shall examine
the contents of every bag and pocket of hops intended to be exported,
in such manner as to ascertain the quality of such hops, and if it is
found that they are merchantable as before prescribed, and firmly packed,
that they have been so packed at least ten days previous to such exami-
nation, and that the bags or ]iockets are such as are required, the in-
s]iccting officer shall distinguish the same by marking them in legible'
cliaracters with the words ^firat sort, or second sort, or refuse, as their
quality may be ; he shall add thereto the date of the year of which in
liis opinion they are the growth, together with the initials of liis chris-
tian and the whole of his surname, aud the letters Mass.; for which ser-
vices and weighing and delivering an attested sche<lule of the same, he
shall i-eeeive at the rate often cents for every hunilre<l pounds weight so
inspected, to be paiil to him by tlie purchaser, exclusive of the charges
of repacking and of mending the bags or pockets, which shall be paid
by the vendor of the hops, and exclusive also of the storage, .should
said hops be stored by said inspector more than thirty days after being
inspected.
Sect. 94. The in.spector-general shall annually in January make a
return to the secretary of the commouwealtli of tlie number of bags of
hops inspected and marked by him and liis dc]iuties during the year
preceding the first day of said month, designating in such return the
different qualities and the weight of each quality resjjectively.
Sect. 95. If an inspector of hops on application made to him un-
necessarily neglects or delaj-s to examine, mark, and weigh, any liops,
he shall for each offence forfeit five dollars.
Sect. 96. If an inspector is guilty of fi-aml in inspecting hops, or
puts his mark on any bag, jiocket, or package, of ho]is, which has not
been actually examined, inspected, and found merchantable, he shall
forfeit twenty dollars for each bag, pocket, or ]iackage, so falsely marked.
Sect. 97. Whoever empties a bag or pocket of ho]is marked as afore-
said, and puts in other ho]>s for sale or exportation, without first oblit-
erating the marks, shall for each offence forfeit five <lollars.
Sect. 98. Whoever counterfeits or alters a mark belonging to or
]iro]ier to be used by the insjiector-general or his deputies, or marks a
b.ag or pocket of hops therewith, shall forfeit ten dollars, and the hops so
marked shall be forfeited, and may be seized and lilielled.
Sect. 99. Whoever intermixes, takes out, or shifts, any hops from a
bag or pocket, insjiected and marked as is above required, or ]iuts into
such bag or pocket any other hops for sale or exportation, shall forfeit
twenty dollars for each offence.
Sect. 100. Whoever exports or ships for exportation out of this
state, any hops not inspected and marked as aforesaid, shall forfeit
twenty dollars ; .and the master of each vessel having tlie same on
bo:ird, ten dollars for eacli bag or jiocket so shijijied or exported.
Sect. 101. If hops are exported or sliip]H'(l for exportation from this
state contrary to the provisions of this cha]iter, the same shall be for-
feited, and the inspector-general or any deputy-inspector may seize and
libel the same.
Sect. 102. Nothing contained in this chapter shall be construed to
Chap. 49.] inspection and sale — leather, boots &c. 269
affect hops shipped coastwise to any place within this state for the pur- Hops shipped
pose of being inspected and maiked; but in such case, a certificate from i"."s!"sr§ nsi
the owner shall accompany them, settina; forth the owner's name, the
number of bags, pockets, or jjackages, and the name of the inspector to
whom they are sent for inspection.
LEATHER, BOOTS, &C.
Sect. 10.3. The inspector-general of leather shall give bonds with inspoctor-gen-
sufficient sureties to the treasurer of the commouwealth in the penal ?r'L; 'S,"i*,.?i"
sum oi tliree tliousanu dollars. itoi, 217.
>Sec't. 104. He shall appoint one or more deputy-inspectors in any Deputies to be
place upon the application of the mayor and aldennen oi- selectmen, gjjjjl'^^.e' "'''°
shall be answerable for their doings, and shall take a bond with sufficient bonds!'
sureties from each of them, to himself and his successors in office, in a ^'' *'-^'§i'-'-
penal sum not exceeding three hundred dollars.
Sect. 105. Each inspector shall furnish himself with proper scales. Leather to be
weights, and seals, and when requested shall insiiect witliin the place "'■•'.i",^t"'.
tor which he is apponited all sole and belt leather ouered tor his inspec- stamped,
tion, shall weigh each side of leather which he inspects, and shall im- J?,-^- **' 55 125,
press thereon his name and the name of the place for which he is i»5i, 217.
inspector at fidl length, and also the weight thereof; and on leather
which he finds manufactured of good hides in the best manner, he shall
imjjiess the word best, on that manulactured of good hides in a mer-
chant^ible manner, the word ffood, on that manufactured of damaged
hides in a merchantable manner, the word danu((/ed, and on leather not
belonging to any of the qualities aforesaid, the word bad.
Sect. 106. Each deputy-ins])ector who is ap]jointed for one place in Same subject,
a county shall, upon ajiplication made to him, inspect sole and belt J^f ^^r ^ '^'^'
leather in any other place of the s:une county, when there is no in-
spector for such other place ; and he shall uj)on the like apjilication
inspect leather in any place of an adjoining county when there is no
inspector appointed in such adjoining county.
Sect. 107. The inspector-general and each deputy-inspector shall be Fees,
paid for inspecting, weighing, and sealing, each side of leather, the sum J|^J' '^^' 5§ '• *•
of one cent, which shall be paid by the jnirchaser ; and he may receive
from each of his deputies one mill for each side of leather ins])ected,
weighed, and sealed, by such deputy. "When an inspector is called to
insjiect a lot of leather of less quantity than one hundred sides, or
which is more than one mile distant from the inspector's place of busi-
ness, he shall receive two cents a side for each side inspected, weighed,
and sealed, and ten cents a mile travelling fees, to be computed both
ways.
Sect. 108. No sole or belt leather made of the hides of neat cattle, soie and bolt
except such as has been previously inspected and sealed by one of the {^^bc sold unai*
inspectors of this state, or by some inspector la'n'fully appointed for that inspected.
puq)ose in some other of the United States, shall be sold for any pur- f^f/g^fy^ '^•
pose whatsoever, within a place in which there is an inspector, until it
has been inspected, weighed, and sealed, by one of the inspectors of
such place.
Sect. 109. Whoever, within a place for which an inspector has been penalty,
appointed, buys or sells sole or belt leather not inspected as aforesaid, J|;3;j ' ^J ^ 124.
shall forfeit one dollar for each side of leather so bought or sold. issij 217.'
Sect. 110. Whoever counterfeits, alters, or defaces, the inspector's for counter-
marks on a side of leather inspected, shall for each offence forfeit the k. s.'as, § 128.
sura of twenty-five dollars. ^*^'' ^i'-
Sect. 111. If a side of sole or belt leather, when dried in a merchant- when weight
able manner, so varies as to weigh five per cent, more or less than the ^^"^ ^^^ ^"
weight marked thereon by the inspector, he shall be subject to the pay-
23*
INSPECTION AND SALE — LIME AND LIME CASKS. [ChAP. 49.
R. S. 28, § 130.
1S31,217.
Appointment of
iin'iisurers of
ui»inT leather.
1.S41, 111), § 1.
Duty of meas-
urers.
1841,119, §§2,3.
Fees.
1811, 119, § 5.
Penalty for
counterfeiting
marks, &e.
1S41, nil, §4.
Manufacturers
of boots, shoes,
&c., may stamp
tlieir articles.
Such stamp a
"vvarrautv.
K. S. -is', § 131.
Penalty for
fraudulently
stamping.
K. S. as, § 132.
meiit of the whole variation, at a fair valuation, to be recovered in an
action of tort by tlie ]wrty injured thereby.
Sect. 11"2. The mayor and aldennen or selectmen of any pl.-ice, when
thereto requested by two or more citizens thereof, shall annually in April
appoint one or more persons as measurers of upper leather, who shall be
sworn.
Sect. 113. Each measurer shall furnish himself with proper racks or
measures, and suitable seals ; shall, when requested, go to any jilace
within the city or town for which he is appointed measurer, and there
ascertain the number of square feet in each side of upper leather made
of the hides of neat cattle, buftalo, or other animal, usually heretofore
sold by measure, except such as shall have been previously measured
and sealed by a measurer of some place in this state, or by some person
lawfully appointed for that pui-pose in another of the United States; and
shall seal the same, impressing thereon his name and the name of the
place for which he is a measurer, at full length, and the measure thereof
in square feet, as low as a quarter.
Sect. 114. Every measurer shall be paid for measuring and sealing
each side of upper leather the sum of one cent, which shall be paid by
the person who requests him to measure and seal the same.
Sect. 115. Whoever counterfeits, wilfully alters, or defaces, such
marks on any side of upper leather so measured, shall for each oflPence
forfeit the sum of twenty-five dollars.
Sect. 116. Each manufacturer of leather, or of boots, half boots,
shoes, pumps, sandals, slijipers, or over-shoes, shall have the exclusive
right of stanqiing the articles by him manufactured, with the first letter
of his christian name, the whole of his surname at large, and the name
of the place of his abode ; and such stamping shall be considered as a
warranty that the article stamped is merchantable, made of good
materials, and well manufactured. Such articles shall not be considered
merchantable unless so stamped.
Sect. 117. Whoever fraudulently stamps, or aids and abets in fraud-
ulently stamping, either of the articles enumerated in the jireceding
section, with the name or stamp of another person, shall be punished
either by fine not exceeding one hundred dollars, or imjjrisoument not
exceeding six months, or both.
Inspectors of
lime may be
chosen ; to be
sworn.
K. S. US, § 133.
Casks of lime,
how branded.
K. S. 2S, § 134.
Fees.
E. S. 28, § 135.
Quality of lime
and casks.
K. S. 28, § 130.
Description of
LIME AND LIME CASKS.
Sect. 118. Each city and town in which lime is manufactured, or
into which it is imported, may annually choose one or more inspectors
of lime; who shall be sworn, and shall insjiect all lime manufactured in
such place at the time when it is filled at the kiln, and all lime imported
or sold therein.
Sect. 119. Every cask of lime so inspected shall be branded with the
word inspected, with the first letter of the christian name and the whole
of the surname of the inspector, and with the name of the place where
it is manufactured.
Sect. 120. The inspectors shall receive for the inspection and brand-
ing of each cask of such manufactured lime, four cents, to be paid by
the manufacturer or owner; and for the inspection of each cask of lime
so imported or sold, the same sum, to be paid by the purchaser.
Sect. 121. No stone lime manufactured within this state shall be
sold, or exposed to sale, or shipped on board of a vessel, in casks, unless
it is well burnt and pure, in good and suflicient new casks, containing
either fifty or one hundred gallons each, made of well-seasoned heads
and staves, with ten good and suflicient hoops on each cask, well driven
and sufficiently secured with nails or pins.
Sect. 122. When an inspection is demanded of lime manufactured
Chap. 49.] inspection and sale — lumber, wood, timber. 271
in and imported from the state of Maine, the inspector shall require that casks for Maine
such lime be in casks manufectured from sound and well-seasoned lum- s"me rules, &c.,
ber, with at least ten good hoops well driven and secured u])on each except n» to size
cask; the staves of the cask shall be thirty inches in length and not less isie, 237, §§ i, 2.
than half an inch in thickness; the heads shall be not less than three-
fourths of an inch in thickness and shall be well crozed in ; each cask
to be not less than twenty-six and one-half inches between the heads and
seventeen inches between the chimes, with a good and suitable bilge, and
made in a workmanlike manner ; and the same rules, regulations, restric-
tions, and liabilities except as to the size of the cask, shall apply to lime
imported from tlie state of Maine, as are provided respecting lime manu-
factured in this state.
Sect. 12.3. Whoever sells, exposes to sale, ships, or receives on board Penalty for seil-
of a vessel, in casks, any lime manufactured within this state, or the J."|y" '^l'"
state of Maine, other than such as is contained in casks made according i'- s. as, § i3r.
to the provisions of the preceding sections, and having the aforesaid
marks or brands respectively, shall forfeit one dollar and fifty cents for
each cask sold, offered for sale, shipped, or received on board of a vessel :
provided, that nothing contained in this chapter shall be construed to
restrain any person from retailing lime by the bushel, or other quantities
not in casks.
Skct. 124. If a cask of lime is sold, or exposed to sale, or put on ForfeitnrcB.
board of a vessel, contrary to the provisions of this chapter, the same k I' iigVs^lf)
shall be forfeited, and an inspector may seize and libel the same. 21, &c.
Sect. 125. If, after a cask containing lime has been branded as afore- Penalty for
said, any person shifts the contents of such cask and puts therein other t'nts of Sts.
lime with intent to sell the same, he shall forfeit one dollar and fifty K- s. as, § 139.
cents for each cask of lime so shifted. ^'^^' ^^^'
LFMBEE, OENAMENTAL 'WOOD, AND SHIP TIMBER.
Sect. 126. A surveyor-general of lumber shall be appointed by the Sun-eyor-gen-
governor, with tlie advice and consent of the council, for a district to I,',r's°um''i'k'a'd
consist of the county of Suffolk, the cities of Charlestown, Cambridge, vieinity, how
and Roxbury, ami the towns of Dorchester, Quincy, and Bi'ighton. j!iv'"i',ouli; ^c.
He shall reside in the district, keep an office in Boston conveniently is59, aai, §§ 1, 2.
located ami accessible to the public, be sworn, give bond with sufficient
sureties to the treasvtrer of tlic commonwealth in the sum of two thou-
sand dollars for the faitliful discharge of his duty, and hold his office
for three years, and until a successor is appointed and qualified, unless
sootier removed.
Sect. 127. He shall ap]ioint a sufficient number of competent and to appoint
discreet de])Uty-sur\-eyors, removal)le at his pleasure, and for whom he ^'i' "t to^iical in
shall be resjionsilile; they shall be citizens of the places for wliich tliey lumber.
are appointed, and be sworn and give bond to him for the faithful dis- '■'^'•'iSJi, 5§a,3.
charge of their duties. He shall apjjoint one or more of them to survey
oak and other wood commonly used in ship-building, and one or more
to survey mahogany, cedar, and other ornamental wood and lumber.
No surveyor-general or deputy shall be a dealer in lumber of the kind
he ifi appointed to survey, or suney any lumber in which he has a pecu-
niary interest, directly or indirectly, or for any person or persons by
whom he is employed, by a salary or per diem allowance.
Sect. 128. All applications for surveys shall be made to him. All to receive ap-
surveys made by his deputies and the order of their services, in rotation SlJ-cct surveys.
or otherwise, shall be under his directions, and he shall, by himself or
his deputies, survey and admeasure all lumber brought into the district
for s.ale, exce]it lumber manufactured in this state, which shall also be
surveyed when a request is made therefor by ])urchaser or seller.
Sect. 129. He shall keep a record of all lumber surveyed by himself tokeeprecoM
272 INSPECTION AND SALE — LUMBER, WOOD, TIMBER. [ClIAP. 49.
of surveys, fees, or liis deputies for any person or firm, and the amount of fees received
^'9 22i, §4. ^y e-'icli, and as often as once in three months, and when collected by
them, lie shall be entitled to ten per cent, thereof. The record shall be
at all times open to the inspection of any members of the city councils,
and to the selectmen, of the several cities and towns in the district,
to miiko annu- SEt T. 130. He shall annually on or before the fifteenth day of Octo-
ai return to sec- ]j^,y^ niake a return to the secretary of the commonwealth, spccif^'ing
1859, 224, §0. tile amount and various kinds and qualities of all lumber surveyed in
the district during the year ending on the thirtieth day of the preceding
month, by whom surveyed, and the amount of fees received by him and
his deputies.
Surveyors of Sect. 131. Cities, except those situated in the district mentioned in
appointaiieut'oi' Section one hundred and twenty-six, may fi-om time to time establish
K. s. 15, § :!s. such ordinances as they deem expedient, with suitable penalties, respect-
' ing the appointment of surveyors of lumber therein,
duties of. Sect. 132. Surveyors of lumber in cities and towns, when requested
1S5S, 104, § 3. j^Q (.Q j-JQ i^y either the ])urchaser or seller, shall survey oak and other hard
wood commonly used in shi])-buildiiig, mahogany, ash, and other orna-
mental wood, and all other lumber brought for sale into, or manufactured
in, this state. But no surveyor shall survey lumber in wliich he has a
pecuniary interest.
Boards and Sect. 133. Of pine boards and planks, except southern pine, there
Sorts ™d uum- shall be six sorts. The first sort shall be denominated number one, and
i)i'r8. include boards not less than one inch thick, square edged, ti-ee fi-om rot,
*' shakes, and nearly free fi-om knots and sap, except such boanls and
planks as are not less than fifteen inches wide and not more than one-
eighth waste, which shall be received as number one. The second sort
shall be denominated number two, and include boards not less than one
inch thick, and of which not less than seven-eighths is suitable for plan-
ing and first class finish : provided, that such boards as are clear but
deficient in thickness as aforesaid, shall be received as number two. The
third sort shall be denominated number three, and include boards not
less than seven-eighths of an inch thick, and of which not less than
three-fourths is suitable for planing and second class finish. The fourth
sort shall be denominated number four, and include lioards not less than
seven-eighths of an inch thick, nearly free from rot and nearly square
edged, free from loose and large branch knots, and suitable for covering
buildings ; all Norway pine boards and planks shall be included in the
fourth, fifth and sixth sorts. The fifth sort shall be denominated num-
ber five, and include all boards and planks of every description not be-
ing within the other four denominations, except wlieii one-thu-d is
worthless, which boards and ])lanks shall be denominated refuse.
Joists and di- Sect. 134. Of pine joists and dimension timber there shall be three
Sss^iw'?'"'"^'"" sorts. The first sort shall be denominated number one, and include all
joists and dimension timber that are sound and nearly square edged.
The second sort shall be denominated number two, and include all
other descriptions, excc]it when one-third is worthless, which joists and
dimension timber shall be denominated refuse.
.Spruce, hem- Sect. 135. Of spruce, heiulock, juniper, and southern pine, boards,
souViKTu piue, planks, sawed timber, and joists, there shall be three sorts. The lirst
&e. soi't shall be denominated number one, and include all boards, planks,
' sawed timber, and joists, that are sound and nearly square edged. The
second sort shall be denominated number two, and include all other
descn]itions, except when one-third is worthless, which boards, planks,
sawe<l timber, and joists, shall be denominated refuse.
Ash,mapie,&c., Sect. 136. Of asli, maple, and other hard wood and ornamental boards,
iSs^wts'o. pl'inks, and joists, there shall be three sorts. The first sort shall be de-
nominated number one, and include all boards, ])lanks, and joists, that
are fi'ee from rot, shakes, and bad knots. The second sort shall be
Chap. 49.] inspection and sale — lumber, wood, timber. 273
denominated number two, and include all other descri]itions, except when
one-tliird is worthless, which boards, planks, and joists, shall be deuom-
iuated refuse.
Sect. 137. Of hewn timber, except mahogany and cedar, tliere shall lie Hewn timber.
three sorts. The first sort shall be denominated numlier one, and in- j^",."'' '"''^ '"™"
elude all timber that is sound and nearly square edged. Tlie second isss, iw, §7.
sort shall be denominated number two, and include timber of all other
descriptions, except [when] one-third is worthless, which timber shall
be denominated refuse.
Sect. 138. Of oak, juniper, and spruce knees, there shall be two Onk, juniper,
sorts. The tii-st sort shall be denominated number one, and include all knees'"^""^"
sound knees of the following dimensions : ann or root one foot six inches isss, i«, §s.
long, body of knee three feet long, working tliickness four inches ; ann
or root two feet and six inches long, body of knee tliree feet long, work-
ing thickness five inches ; arm or root two feet and nine inches long, body
of knee tliree teet and six inches long, working thickness six inches ;
arm or root three feet and three inches long, body of knee four feet and
six inclies long, working thickness seven inches ; ann or root three feet
and six inches long, body of knee four feet and three inches long, work-
ing tliickness eight indies ; ann or root three feet and nine inches long,
body of knee four feet and six inches long, working tliickness nine
inches ; arm or root four feet long, body of knee fi\e feet long, working
thickness ten inches and ujiwards. The second sort shall be denom-
inated refuse, and shall include all other descriptions of less dimensions
than those specified in the first denomination ; all knees sliall have the
working thickness marked thereon, and on the first sort, the number
" one " shall be marked.
Sect. 139. Of mahogany and cedar there shall be but one sort, and Mahogany and
it shall be the duty of the surveyors who are especially appointed tosur- jJj^'""^ioj 5 9.
vey mahogany and cedar, to number all the mahogany and cedar logs or
sticks contained in each lot or cargo in regular numerical order, an<l to
mark the number of each log or stick upon the same in legible charac-
ters. And the said surveyor shall, to the best of his ability, ascertain
the whole number of feet, board measure, in each and every log or stick,
and what (piaiitity thereof is merchantable, and what is refuse. And
said surveyor shall thereujion issue a certificate or survey bill, of said
survey, in which shall be stated the number of each log or stick, and the
whole number of feet contained in the same, and siiecifjang the number
effect which is merchantable and refuse, respectively.
Sect. 14tJ. Hewn timber, and round timber, used for masts and ship- uewn and
building, shall be surveyed and sold as ton timber, at the rate of forty """'^vhjfe*™^
cubic feet to the ton ; oak and other timber and jilanks commonly used Ni>rway pine,
in ship-building, shall have the true contents marked thereon in cubic "^*' ''^' ^ '**"
feet or board measure, and in the first and second sorts, the nvmibers
" one " and " tiro " shall be marked thereon respectively. In the survey
of white and Xorway jiine boards, jilanks, joists, sawed timber, and di-
mensions, the contents of the same shall be truly marked thereon in legi-
l)le numbers, and on the fii-st, second, third, fourth, and fifth sort of
white and Norway pine boards, planks, and dimensions, the numbers
sliall be marked rcspecti\ely. All lioards, planks, joists, sawed timber,
and dimension lumber, shall be received and sold according to the con-
tents thereof, as fixed and marked under the aforesaid regulations. In
the admeasurement of round timber, one-fourth of the girth shall be
taken for the side of tlie square.
Sect. 141. Tlie fees for surveying and marking sh.all be paid by the Fees.
purchaser, as follows: for white, southern, and Norway ])ine, sjiruce, ^■"'S, iM, §11.
hemlock, juniper, and white wood boards, planks, joists, sawed timber,
and dimension, twenty-four cents for every thousand feet board meas-
ure ; for southern pine flooiiug boards, tliirty-four cents for every thou-
35
274 INSPECTION AND SALE — MARBLES, METALS, MILK. [ChAP. 49.
sand feet board measure ; for all kinds of pine, spruce, hemlock, and ju-
niper timber, twelve cents for every ton ; for oak anil other hard wood,
twenty-four cents for every ton ; for knees commonly used in ship-build-
ing, three cents for each knee ; for ash, ma])le, and other hard wood and
ornamental boards, planks, and joists, forty cents for every thousand
feet board measure ; for Cuba, Saint Domingo, and other branch or hard
mahogany, one dollar for every thousand leet board measure ; and for
mahogany from the bay of Honduras, and for cedar, seventy-iive cents
for every thousand feet board measure.
Penalty on sur- Sect. 142. If a surveyor is guilty of or connives at any fraud or de-
fViiiui?ne>'iect, <^^it, in the surveying, numbering, or marking, the contents of any kind
&c. ° ^ of wood or lumber, required by this chajiter to be surveyed ; or if a sur-
' veyor when requested by the owner of lumber to survey the same
refuses, without good reason, to perform the duty, he shall forfeit for
each oifence a sum not less tlian ten nor more than fifty dollars,
on persons Sect. 14.3. Wlioever sells or purchases any lumber or wood herein
Burvef."'' ""* named, brought into this state for sale, which has not been suneyed,
i8os, i(H, § 13. numbered, and marked, according to the provisions hereof, shall forfeit
a sum equal to double the amount of fees for surveying the same,
on person act- Sect. 144. Whoever presumes to perform any of the duties of sur-
'vilhoutautho'r- ^eyor of lumber, without authority, shall forfeit not less than fifty nor
ity. more than two hundred dollars.
ISaS, lU, § 14.
MAEBLE.
City and to^vn Sect. 145. The mayor and aldermen and selectmen of a city or
es'tiibiisil'ordi'''' town m.ay establish such regulations, with suitable penalties, respecting
nauces for sur- the ajipointnieiit of a surveyor, and the survey and admeasurement of
iSi,°ioo ' marble of every descri)ition, foreign or American, that is imported or
brought into such jslace for sale, as they from time to time deem expe-
dient.
METALS AXD ORES.
Assayersof Sect. 146. Tlie govcmor with the advice and consent of the council
anpoin^toti '"""^ may ap])oint one or more suitable persons to be assayers of ores and
is4ii, 123, § 1. metals, who shall be sworn.
duties and Sect. 147. Each .assayer shall assay such ores and metals as may be
compensatiou ofl'^j.^.^] iq ]^[„^ f,j,. aggay, and give a certificate thereof, for which service
isle, 123, § 2. he shall be paid a reasonable compensation by the person procuring
such assay to be made.
WTLK.
Inspectors of Sect. 14S. The mayor and aldermen of cities shall, and the select-
""'''t 'd'-T T > n^f^n of towns may, annually ajipoint one or more persons to be inspect-
swiirn, .and fjive oi's of milk for their res])ective ])laces, who shall, before entering ujion
issoli'oo §§ 1 3. t'^^ duties of their offices, be sworn. Each insjiector shall give notice
of his appointment by publishing the same two weeks in a newspaper
publislu'<l in liis city or town, or if no newspaper is published therein,
by posting up such notice in two or more public places in such town,
tokofp office, Sect. 149. Tlie inspectors sliall kecj) an office and books for the pur-
'"'miv ™tcr pose of recording the names and jilaces of business of all persons
stores, &c., and engaged in the sale of milk within their limits ; they may enter any
lyzcmiiktrc. placowhere milk is stored or kept for s:de, and all carriages used in the
185U, 2o(i, §s 1, conveyance of milk, and whenever they have reason to believe any milk
found therein is adulterated, they shall take specimens thereof and
cause the same to be analyzed, or otherwise satisfactorily tested, the result
of which they shall preserve as evidence, .and shall prosecute for all
violations of the provisions of section one hundred and fifty-one. They
shall receive such compensation as the mayor and aldermen or select-
men determine.
2,3
Chap. 49.] inspection and sale — nails, oils. 275
Sect. 150. All measures, cans, or other vessels, used in the sale, or Measures to be
buyinrj at wholesale, of milk, shall be annually sealed hy the sealer of issi^abo, H-
weights and measures by wine measure ; and all cans so used shall be See cb. 51.
marked by the sealer with figures showing the quantity which they
hold.
Sect. 151. Whoever neglects to cause his name and place of busi- Permityrorneg-
ness to be recorded in the ins])ector's books, and his name legibly placed na'^o",^,™"'
u])on all caiTiages used by him in the conveyance of milk, before ensja- <or Belling by
ging in the sale thereof, and whoever sells, or buys at wholesale, milk by Sed';7oi-"seii-
any other measures, cans, or vessels than those sealed as before pro- ■"!-' adulterated
vided, or adulterates, by water or otherwise, milk to be sold in this state, isao.'aaa.'
or being recorded in the books of the insjieetor as a dealer in milk, con- ^'»«> 200, §§ 2,
veys from place to place, or knowingly sells or causes to be sold adul-
terated or unwholesome milk, shall forteit twenty dollars for each offence.
And whoever offers for sale milk ]iroduced from cows fed upon tlie refuse
of breweries or distilleries, or anv substance deleterious to the quality
of the milk, shall forfeit twenty-live dollars for the tirst, and fifty dollars
for every subsequent, offence.
NAILS.
Sect. 152. Wrought nails, cut nails, and brads of all sizes, man- xaiis and brntis,
nfactured within this state, shall be packed in strong and sufficient andV^cked""''*'
casks made of seasoned timber, well hooped, not containing more than i{. s. 28, §§ ic..i,
three hundred pounds each, and shall be well made and packed free from '^'
waste pieces of iron (unless refuse nails or brads) or any fraudulent mix-
ture increasing the weight.
Sect. 153. Every cask of wrought or cut nails or brads, shall be Casks, how
marked or branded on the head bj' the manufacturer, in plain, legible I'^j^'n'^'si
letters, with the initials of his christian name and the whole of his sur-
name, (or, if manufactured by a corporation or company, by the name
of such corporation or style of such comj)any,) and the net weight of
its contents.
Sect. 154. If any cask, package, or quantity, of wrought or cut Forfeiture and
nails or brads, manufactured in this state and not so branded or marked, 5{™g'!^' 5,-.
is offered for sale or is put on board of a vessel or caiTiage of convey-
ance to be carried out of this state, the same shall be forfeited ; and the
manufacturer sliall for each ])ound of refuse, scraps, or waste, which is
mixed with said nails or brads, forfeit one dollar.
Sect. 155. Whoever counterfeits a brand used or intended to be Penalty for
used for the purpose aforesaid, or destroys or alters a mark or impres- brand^^rhiftm-i-
sion made by another person's brand on a cask of wrought or cut nails contents of
or brads, and causes a different impression by such counterfeit brand to k.''s!'28,'§ 166.
be marked or im]iressed thereon, or shifts any such nails or brads fi'om
one branded cask to another, and thereby avails himself of another
person's brand, shall forfeit the sum of twenty dollars.
Sect. 156. Whoever places on board a vessel or carriage of convey- forattempt-
ance any cask or other quantity of wrought or cut nails or brads manu- I,'j5o?Btate^'"^
factured in this commonwealth, which are apparently intended to be mills not brand-
transported out of the same, and are not branded and marked as above K.'sllis, §107.
provided and directed, shall forfeit a sum equal to the fuU value of such
nails or brads.
OILS.
Sect. 157. All descriptions of oils sold under the names of sperm, pure sperma-
spermaceti, lamp, summer, fall, winter, and second winter oils, shall be R'*g°'i, c,ga
deemed pure winter jiressed or summer strained spermaceti oil.
Sect. 158. Oils sold under the names aforesaid which are adulter- Penalty for
ated with while, tight pressed, or any other oil of less value than pure r''"s*'5Is"*§T70.
spermaceti oil, shall be deemed whale oil, and the vendor shall be liable
276 INSPECTION AND SALE — PAPER, POT AND PEARL ASHES. [ChAP. 49.
to the purchaser for double the amount of the difference in vahie between
pure s])ermaeeti oil and whale oil, when the quantity sold exceeds five
gallons, and four times the diiference when said quantity is less than five
gallons, unless the proportions of the respective oils of which the mix-
ture consists are disclosed to the purchaser in writing at the time of
sale ; and when the quantity sold is less than five gallons, the vendor
shall attach to the vessel in which it is delivered a label, upon which
shall be legibly written the names and proportions of the respective oils
composing such mixture.
Penalty for sou- Sect. 159. Whoever sells any oil or oils commonly known under
oifrs^'mr'c oil' '-'^^ names of sperm, spermaceti, lamp, summer, fall, winter, and second
i;. s. j-i, § i?i. winter oils, which have been adulterated from pure S]3ermaceti oil, by a,
i6oi, su. mixture of whale, tiglit pressed, or other inferior oil, and does not, in the
manner )irescribed in the preceding section, disclose to the ])urchaser
the proportion of the oils of which it consists, shall for each ottence for-
feit the sum of fifty dollars, to be recovered in an action of tort by the
person suing for the same, and to his use.
Same subject. Sect. 160. Oils sold under any of the names mentioned in the pre-
K. s. :;s, § 172. ceding section which have been mixed with tight pressed oil shall be
deemed tight pressed oil, ami the vendor thereoti or of tight pressed oil
under any of the names aforesaid, shall be liable to the jnirchaser for
double the value of the difference between the first quality of s])erma-
ceti oil and tight pressed oil, and to the ])enalties provided in the ])re-
eeding section ; unless at the time of sale the vendor discloses in writing
the mixture aforesaid, and, if not mixed, its quality.
Test. Sec:t. 161. The test of pure spermaceti oil shall be Harris's ole-
E.s.28,§ir3. ometer.
PAPER.
Papor, how Sect. 162. N'o paper, excepting ]ia]ier of foreign manufacture, press
n 'li; ■fl""'* paper, bonnet pa]ier, and p:ii)er usually sold by weight, shall be sold or
H. s. 'id, § m. olfered for sale, unless the same is packed in reams, half reams, or quar-
ter reams, each ream containing twenty quires, each h.alf ream, ten
quires, each quarter ream, five fpiires, and each quire, twenty-four
sheets ; and unless on the face of each parcel there are stamped or
otlierwise legil)ly marked the names of the manufacturers, their place
of residence, and the words one ream, half ream, or quarter ream, as
the case may be : provided, that printing paper may be packed in ])ar-
cels of two reams each, and shall be stamped or otherwise legibly
marked with the words tico reams, and the names of the manufac-
turers, and their place of residence.
Penalty for sell- Sect. 163. Whoever offers for sale or sells any paper contrary to the
pm-ko(l"&c"" provisions of the preceding section, or transports or causes to be trans-
li. s. L's, § 175. ported out of this state, or ])uts on board of a vessel or carriage of con-
1S3U, hio. veyance, with intention to transjwrt the same out of this state, any
jjaper, contrary to said jirovisions, shall, for each ream, package, or jiar-
cel, so ottered for sale, sold, or put on board of a vessel or carriage of
conveyance, for/eit the sum of four dollars.
Forfeiture. Sect. 164. AH such paper not jiacked, or not stamped, as aforesaid,
u' I' iwS'/^o shall be forfeited to the use of any person who may seize and libel the
21- ' ' same.
POT AXD PEARL ASHES.
Inspector-gen- Sect. 165. The ins]iector-general of pot and pearl ashes shall give
bond." ^""^ bond with sufficient sureties to the treasurer of the commonwealth in
II. s. 28, § 177. the penal sum of five thousand dollars.
to appoint Sect. 166. He shall .appoint de]nity-inspeetors in every seaport where
siiaiT'^dve'''"' pot and pearl ashes are exported, and" in such other places as he judges
bonds,''&c. necessary, who shall be sworn either before him or before a justice of
ti. c> liO) J 17o<
Chap. 49.] inspection and salk — pot and pearl ashes. 277
the peace, and for whom he shall be answerable ; and he shall take bond
from each of them with sufficient sureties for the faithful discharge of
the duties of his office.
Sect. 167. Every cask in which j^ot or j)earl ashes are packed for Casks forpot,
exportation shall be made of sound and well-seasoned oak or white ash quality 'imd size
staves and heading, full bound, twenty-nine inches in length, nineteen "'•
inches di;uneter in the head, and of such weiglit in jiroportion to its con- ' ' '
tents as will amount as near as may be to fourteen jier cent, tare tliereon.
Sect. 168. Every manufacturer of pot and pearl ashes shall brand how bramici.
eacli cask containing the same with the initial letters of his christian ^" *' ^' ^ '*"■
name and the whole of his surname, and with the name of the town
where they were manufactured, before the same are removed from the
manufactory, and shall forfeit one dollar for each cask so removed before
being so branded.
Sect. 169. No person shall ship any pot or pearl ashes for exporta- Ashoe, how in-
tion before he has submitted the same to the examination of the inspect- tjorts'^'ic
or or his deputy, who shall if necessary start them out of the casks k. s.bs, §i8i.
and carefully inspect and sort them into three different sorts ; and put
each sort by itself in tight new casks, well hooped and coopered, which
the inspector shall distinguish by the words Jfrst sort, second sort, or
third sort, with the words j)ot ashe^, or jjearl ashes, as the case may be,
branded in jilain, legible letters, together with the letters of his name,
the ]ilace of ins)iection, and the word Massachusetts at full length on
each cask: 2)rorid<:d, that pot or pearl ashes which have been imjiorted
into this state from any of the United .States where laws exist for the
insjiection of the same, may be exported without being rein.spected in
this state, if they are accompanied by a certificate of insjiection signed
by an inspector of the state whence they were imported, descriVung the
quality and weight thereof, and if the casks containing them are branded
with the name of the state fn^m which they were imported, and are in
all respects made conformably to law.
Sect. 170. The inspector, at the time of starting pot or pearl a.shes Casks to be
for inspection, shall weigh the casks and mark the weight with a mark- K^'l.'^SiJJ'jigo.
ing iron on each head.
Sect. 171. If an inspector of pot and pearl ashes unreasonably refuses, penalty forun-
neglects, or delays, to make an inspection, for the space of three hours reasouabie de-
after an application therefor, he shall for each offence forfeit live dollars, k: s. as, § is4.
Sect. 172. The inspector-general shall annually in January make a inspei-tor-<:en-
return into the office of the secretary of the commonwealth, of "the num- ^mis? '"""""^^
ber of casks of pot and pearl ashes inspected by him and his deputies J'- «• -s> § i"9-
during the ye.ar preceding the first day of said January, specifying the
number under each brand and the weight of e.ach quality.
Sect. 173. An inspector shall receive for inspecting, weighing, and Fees,
delivering to the owner an invoice or weight note under his hand ot the ' ""'' "
weight of each cask of pot or pearl ashes, six cents for every hundred
weight so inspected ; and the further sum of twelve cents for coopering
and nailing each cask and putting the same in shipping order, to be
paiil by the ptirchaser.
Sect. 174. The inspector-general shall not receive from any deputy inspector's
more than seven and a half per cent, on the sum first mentioned in tjie {'i'^" JJ. eg'*^''"'
preceding section, nor any part of the sum allowed for cooperage. k. S. -js, § is:).
Sect. 175. Any inspector mav enter on board of vessels lying in the inspectors may
harbor where he is autliorized to make inspection, and if u]K)n search he >\?rfcinuv.^'''*'
discovers any cask of pot or pearl ashes not branded as l)efire directed '?•?•**'',§ '*j',-
in this chapter, the same shall be forfeited, and the inspector shall seize •.a. ' " '*'' '
and libel the same.
Sect. 176. The master or commander of a vessel who receives on penalty for rc-
board a cask of jjot or pearl ashes not branded as aforesaid, shall forfeit "„( jji-^naed*^*
twenty dollars for each cask so received. k. s. •*, § iss.
24
278
INSPECTION AND SALE — POTATOES, ONIONS, SALT. [ChAP. 49.
Penalty for ob-
structiug
search.
It. S. 2.S, § 189.
18:)9, 135.
for branding
falsely.
K. S. 28, § 190.
for shifting
contents of
casks.
li. S. 2S, § 191.
Sect. 177. If the master or commanding officer of a vessel, or any
of his servants or. seamen, obstructs or hinders the inspector in making
searcli as aforesaid, the person so offending shall for each ofl'ciice forfeit
fifty dollars.
Sect. 178. Whoever, with intent to defraud, brands with the name
of another person a cask of ])ot or pearl ashes manufactured bj- himself,
or brands such cask manufactured by another person with his own name,
or counterfeits a brand belonging to or proper to be used by an insjaector,
or impresses or brands a cask with a brand of such inspector, or with a
counterfeited brand, shall for each offence forfeit two hundred dollars.
Sect. 179. Whoever empties a cask ins])ected and branded as is
required by this chapter, and puts in other pot or jiearl ashes for sale or
exportation, without first cutting out the brand marks, shall tor each cask
forfeit two huntli-ed dollars.
Potatoes, on-
ions, and salt ;
wei;^ht ; meas-
uronn'ut.
Penalties.
R. S. 2S, § 199.
1S47, 14.
i83ii, an.
SeeCh. 51,§ 19.
POTATOES, OXION.S, AND SALT.
Sect. 180. In purchases and sales of potatoes, onions, or salt, the
standard weight of the bushel of potatoes shall be sixty pounds, of onions
fifty-two pounds, and of salt seventy pounds. In order to ascertain the
mean or true weight, the vendor shall weigh ten measures at least in
every hundred bushels, five measures at least in every fifty bushels, and
two measures at least in every less quantity than fifty bushels sold. And
every person who sells jiotatoes, onions, or salt, without ascertaining the
weight as aforesaid, shall for every bushel so sold, and in like proportion
for a greater or less quantity, forfeit the sum of two dollars to be recov-
ered in an action of tort to the sole use of any person who first prosecutes
therefor : pfovided, that this section shall not extend to sales of such arti-
cles when the vendor and purchaser appoint a third person to measure
or ascertain the weight or quantity of the same or mutually agree
thereon, nor to such sales not exceeding ten bushels, where the purchaser
does not requu-e the same to be weighed.
Cord wood,
dimensions of.
K. S. 28, § -JUO.
Penalty for sell-
ing wood, &c.,
not measured.
R. S. 28, § 201.
1839, 135.
7 Cush. 371.
Fees.
K. S. 28, § 202.
Wood, bronght
by water, bow
measured.
Towns may
make regula-
tions, &c.
K. S. 28, § 203.
WOOD, BAEK, AND COAX.
Sect. 181. Cord wood exposed for sale shall be either four, three, or
two feet long, including half the kerf; and the wood, being well and close
laid together, shall measure in quantity equal to a cord of eight feet in
length, four in width, and four in height.
Sect. 182. If any fire wood or bark exposed to sale in a market, or
upon a cart or other vehicle, is offered for sale before the same has been
measured by a public measurer of wood and bark and a ticket thereof
signed by him delivered to the driver, certifying the quantity which the
load contains, the name of the driver, and the ])lace in which he resides,
the driver and owner shall for each load thereof severally foi-feit the sum
of five dollars.
Sect. 183. The measurers of wood and bark in any place shall be
entitled to such fees for their services as the mayor and aldermen or
selectmen shall establish ; and the fees shall in each case be paid to the
measurer by the driver, and shall be rejiaid by the purchaser.
Sect. 184. Cord wood brought by water into a ))lace for sale and
landed, shall be measured by a jiublic measurer; and for that jiurjiose
the wood shall be corded and ]iiled by itself in ranges, making up in
height what shall be wanting in length, and being so measure<l, a ticket
shall be given to the jiurchaser, who shall ])ay the stated fees for such
service. But cities and towns may establish ordinances and regulations
with suitable penalties, for the insjiection, survey, a<lmeasuremciit, and
sale, of wood, coal, and bark for fuel, brought into such places for sale,
and may also provide for the a]i]iointmeiit of such surveyors, in.spectors,
and other officers, and establish their fees of office.
Chap. 49.] inspection and sale — wood, bark, and coal. 279
Sect. 185. Each wh.irfinger, carter, or driver, who conveys any fire- Carters to have
wood or bark from a wharf' or landing jilace, shall be furnished by the r'''s.'2s, §2(h.
owner or seller with a ticket certifying the quantity which the load con- isssi, i3o.
tains and the name of the driver; and if firewood or bark is thus con-
veyed without such ticket accompanj-ing the same, or if a driver refuses
to produce and show such ticket on demand to any sworn measurei-, or
to give his consent to have the same measured, or if such ticket certifies
a greater quantity of wood or bark than the load contains, in the opinion
of the measurer after measuring the same, the driver and owner shall for
each load thereof forfeit the sum of five dollars. But nothing contained
in this chapter shall be construed to extend to a ])ers(m who transports,
carts, or causes to be transported or carted, from a wharf' or landing
place to his own dwelling house or store, cord wood or bark which he
has ]iurchased on a wharf' or landing place, or has lauded thereon upon
his own account.
Sect. 186. The city council of a city may estaldish ordinances and cities may regu-
regulations, with suitable penalties, for the insjtection, survey, admeasure- i'J*,! sale of b^k
ment, and sale of bark for fuel or manufacturing purposes brought into issi, :iiii.
said city for sale, whether the same is exposed for sale in ranges or upon
a cart or other vehicle ; and said city may provide for the a])pointment
of such sur\eyors, inspectors, and other officers, as may be necessary to
carry into eflect said ordinances, and may establish their fees : provided,
that no penalty for any one violation shall exceed the sum of five
dollars.
Se<t. 187. Anthracite, bituminous, or mineral coal when sold in certain coals to
quantities of five hundred iiounds or more, except bv the caru;o, shall be '«• ?"i<i hy
111 -1 1 1 1 T ' \ ■ 7 11 1 1 wii^jNit, except,
sold l)y weight, and two thousand pounds avoirdupois shall be the &c.
standard for the ton by which the same shall be weighed and sold. "'°^' *^' ^ *"
Sect. 188. The mayor and aldermen or selectmen of every place weipiierswho
where such coal is sold shall apjjoint one or more jiersons not engaged i'"i,',.".'' n'^'i^'^ted
in the business of selling coal to be weighers of such coal, who shall be ami sivoru.
sworn, and be removable at the pleasure of the boanl a))]>ointing them, i^^''> >'>•*>§§ 3, 5.
and shall receive such fees as may be ordered by the board, which shall
be paid by the seller.
Sect. 189. On or before the deliveiy of such co.al the seller shall seller to pro-
cause the same to be weighed by a sworn weigher of the jilaco in which o" wcilril!!"^"'"
the same is sold or delivered, and a certificate of the weight thereof i»sii, iss, § 2.
signed by the weigher shall be delivered to the buyer or his agent at
the time of the delivery of the coal.
Sect. 190. Whoever violates any provision of the three preceding rorfciturc, &c.
sections, shall for each offence forf'eit thirty dollars. '''^°' *"**'^'*-
Sect. 191. In the sale of charcoal, the baskets, tubs, or vessels used rormanddi-
in measuring the same, except as hereinafter jirovided, shall be of a cyliu- Xneua'rmeas-
drical form and of the following dimensions in the inside thereof, to wit: ures.
nineteen inches in diameter in every part and eighteen inches and one- '' "*'
tenth of an inch in depth, measured fi-om the highest part of the bottom
thereof; each of which .shall be deemed to be of the cajiacity of two
bushels, and shall be filled level full ; and every such vessel shall be
sealed by a sealer of the ))lace in which the person using the same shall
usually reside or do business.
Sect. 192. Charcoal may be measured in boxes, bins, or cans, of the Dimensions of
following capacities, to wit : of fi\e, ten, twenty, thirty, forty, or fifty hins^r'canf"^'
bushels, such boxes, bins, or cans, being first lawfully scaled as aforesaid ; itas,' 30j, § a.
and five thousand one hundred and thirty-two cubic inches shall be
deemed equal to two bushels, or the le\el basket, tub, or vessel, described
in the preceding section.
Sect. 193. Every vendor of charcoal, who has in his possession any penalty for
basket, tub, box, bin, vessel or measure of less dimensions than those jpL"i"7,',*'^' .''.'-
required by the two preceding sections, or not sealed as therein provided, isTiii, im.'
280
AUCTIONEERS.
[Chap. 50.
1853, 305, § 3.
Iti59, 250, §§ 1, 2.
Persons to be
appuintod to
seize illerjal
measures, »tc.,
and arrest witli-
out warrant, .to.
1859, 250, §§ 1, 2.
with intent to use the same or pcnnit tlie same to be used for measuring
charcoal, sold or agreed to be sold, shall Ibrieit ten dollars lor every suck
measure in his possession. And every person who measures, in any such
basket, vessel, or measure, any charcoal sold or offered for sale, unless by
special agreement of tlie buyer and seller, shall forfeit a sum not exceed-
ing one dollar for every two bushels so measured or pretended to be
measured, and such basket, vessel, or measure shall be destroyed.
Sect. 194. The mayor and aldeniien or selectmen of every place shall
appoint one or more suitable j^ersons to seize all baskets, vessels, or
measures used or intended to be used for measuring charcoal, and not
confonning to the foregoing provisions ; and to arrest Avithout warrant
any person having in his possession such baskets, vessels, or measm'es,
and take him and them before the proper tribunal for prosecution ; and
upon his being convicted or found guilty, such tiibunal shall order said
baskets, vessels, and measures to be destroyed.
CHAPTER 50,
OF SALES BY AUCTIONEERS, AND HAWKERS AND PEDLERS.
auctioneers.
Section
1. Auctioneers to be licensed by selectmen,
Arc, for one year. Fees for license. Li-
cense to be recorded.
2. If license is refused, application may be
made to county commissioners, &c.
3. Auctioneers to give bond.
4. to keep an account of sales.
5. Penalty for receiving- goods from minors,
&c.
G. Auctioneer may sell within his county, &c.
Penalty.
7. Forfeitures.
8. Tenants auswerable if they permit unli-
censed sales in their premises.
9. Penalty for selling without license.
10. Sales by sherilTs, executors, &c.,aiot includ-
ed in this chapter.
11. Penalty for fraud or deceit.
12. Licenses in cities, itc. Penalty for selling
at places not authorized.
HAWKERS AND PEDLERS.
13. Articles which may be sold by hawkers
and pedlers without license.
Section
14. Cities and towns may regulate such sales
by miuors. Penalty.
15. Prohibited articles.
16. Secretary may grant lirenses on certificate
of mayor, &c., for sale of goods not prohib-
ited.
17. Form and effect of license. Party may sell
on payment, &c.
18. Fees for license.
19. Residents paying taxes, &c., may be li-
censed without fee.
20. State licenses. County licenses.
21. Records of licenses.
22. Sums paid for licenses, how appropriated.
23. Licenses may be transferred.
24. Persons licensed, to post name, &c., on par-
cels or vehicles, and exhibit license on de-
mand, &c.
25. Licenses not to protect party, &c. Shall be
void, if, &c.
20. Penalty for counterfeiting, &c., licenses,
and selling without license.
27. for unauthorized sales.
28. Hawkers, &c., licensed as auctionecra, not
to sell, &c.
AUCTIONEERS.
Auctioneers to SECTION 1. The Tuayor and aldermen nnd selectmen of any city or
^ s*^4^*§§'i'^*^' t*^^^^"t by ^^'i'^l^i"n under their hands, may license one or more suitable
2,*i2.'" ' ' inhabitants of their respective cities and toAvns, to be auctioneers within
the same for the tenn of one year, and may receive to the use of the
city or town for each license the sum of two dollars. They shall record
every license in a book to l>e kept by them for that ]>nrpose.
Sect. 2. If on application made to them in writinj:^ they unreason-
ably refuse or nefrlect to license the ap]>hcant, he may, after gi\nng them
fourteen days' notice and })onds to pay all costs, apply to the county
commissioners, who, u])on hearnio; tlic j^arties, may grant a license.
Sect. 3. Each auctioneer shall, if required, give bonds, in a reason-
If selectmen re-
fuse, county
commissioners
may license.
II. S. 29, §3.
Chap. 50.] hawkers and pedlers. 281
able penalty with sufficient sureties to the treasurer of the city or town Auctionccre to
where he is licensed, with condition that he shall in all things conform f^7,23",'§i.
to the laws relating to auctions.
Sect. 4. Every auctioneer shall keep a fiiir and particular account to keep an ac-
of all goods and chattels sold by him, and of the persons from whom 5°."s.*;;'i)', rs."*'
recei\ed, and to whom sold.
Sect. 5. An auctioneer who receives for sale by auction any goods Penalty for ro-
from a minor, knowing him to be such, or sells by auction any of his fr^Ji^OTs^
own goods before sunrise or after sunset, sliall forfeit to the use of the &c.^
town a sum not exceeding two hundred dollars for each otfence. 5'5iilss!'sti5!
Sect. 6. An auctioneer may sell at public auction in any jilaee within AHitioneermay
his county; and when employed by others mhy sell real or personal county '&" '''''
estate upon the premises where the same is situated in any place within iKir, 2:b.
the state. If an auctioneer sells by auction in any place where he is not ~' ' ' "
authorized to sell, he shall forfeit fifty dollars.
Sect. 7. If a jjerson sells or olfers for sale by auction any goods or Forfeitures,
chattels in any city or town except as is provided in this chapter, the i*s. aa>§9.
same shall bo forfeited to the use of the city or town, and may be seized
by the mayor and aldermen or selectmen, and libelled according to the
provisions of cha)»ter one hundred and fifty-three.
Sect. 8. The tenant or occupant of any house or store, having the Tenants an-
actual possession and control of the same, who knowingly permits a ,""j!'j,';,',!^;,'ij „„.
person to sell real or personal estate bv liublie auction in such house or lie.nseciBalcsin
i ■ ^j. 1^^ ii*i *. A tlu-ii- premises.
Store, or m an}- apartment or yard a]ipurtenant to the same, contrary to n. s.^;9, §io.
the ])i'ovisions of this chajiter, shall forfeit a sum not exceeding five
hundred dollars.
Sect. 9. If a jierson, not licensed and qualified as an auctioneer, sells Penalty for seii-
or attemiits to sell any real or jiersonal estate by public auction, he shall J.','.Sse'"'""* ""
for each offence forfeit a sum not exceeding five hundred dollm's. K. s. liu, §7.
Sect. 10. Xothing in the preceding sections shall extend to sales Sales by sher-
made by sherills, deputy-sherifts, coroners, constables, collectors of taxes, J.uuiwHuThis"
executors, administrators, guardians, assignees of insolvent debtors, or eiiaiiter.
any other person required by law to sell real or personal estate. ' '~'^
Sect. 11. Every auctioneer or other person who is guilty of fraud or Penalty for
deceit in relation to any sale by auction, shall for each oflence forfeit a iS",''a3a,'5™!'''
sum not exceeding one thousand dollars.
Sect. 12. Licenses may be granted upon such conditions respecting Licenses in
the places of selling goods and chattels within a city or town as the k''s!'2M§ 13,
mayor and aldermen or selectmen deem expedient; and if an auctioneer m- ^
makes a sale by auction at a place not authorized l)y his license, he shall "'' ' ' ^ "
be liable to like penalties as if he had sold without a license.
HAWKEKS AND PEDLERS.
Sect. 13. Any person may go about from town to town, or from jilace Ai-tieies winch
to place, or from" dwelling-house to dwelling-liouse in the same town, ""fiers w/tliout
exposing to sale and selling fruits and provisions, live animals, brooms, 'ii^cj'sp-
agricultural iin]ilements, fuel, newsjiapers, books, pamphlets, agricultural sec'ss'is; lo.'
products of the United States, and the ju'oducts of his own labor or the
labor of his family.
Sect. 14. The city council of any city, and the inhabitants of anj' cities and
town, may authorize the mayor and aldermen or selectmen thereof to J,'iaVe'*'Buei7s!af8
restrain tlie sale by minors of any goods, wares, or mei'chandise, the sale by minors,
of which is ]iermitted in the preceding section, and while such authority mii]-zli,^2.
remains in force the mayor and aldermen and selectmen may make
rules restraining such sales by minors, or may grant licenses to minors to
make such sales upon such temis and conditions as they shall prescribe;
but such restraints and licenses shall not remain in force beyond their
teiTii of office. Whoever is guilty of a violation of the rules and regu-
24* 36
282 HAWKERS AND PEDLEES. [ChaP. 50.
lations so made, or sells any such articles without a license when the
same has been required, shall forfeit a sum not exceeding ten dollars for
each offence.
Prohibited arti- Sect. 15. The Sale of jewelry, wines, spirituous liquors, jilaying
i^B 244 § 2 cards, indigo, and feathers, in the manner specified in section thirteen,
See §§ 1?', 20, 35. is prohibited.
Secretary may Sect. 16. The secretary of the Commonwealth may grant a license
on'certiH™t.'''of ^'^ S^ about exposing to sale and selling any goods, wares, or merchan-
maynr, &c., for (Use, not prohibited in the preceding section, to any applicant wlio files
uot profi'ibitH. i'l his office a ceiiificate signed by the mayor of a city or by a majority
i.s4(i, 244, §§ :i, li. of the selectmen of a town, stating that to the best knowledge and be-
23, 25. ' ' ~ ' hef of such mayor or selectmen, the a))]jlicant therein named resides in
such city or town, is a citizen of the United States and of good repute
for morals and integrity. The mayor or selectmen before granting such
certificate shall require the applicant to make oath that he is the person
named therein, that he is a resident of such city or town, and a citizen
of the United States ; which oath shall be certified by a justice of the
peace, and accompany the certificate. Every license so granted shall
bear date the first day of January of the year in which it is granted, and
shall continue in force one year, and no longer.
Form and effect Sect. 17. The secretary shall cause to be inserted in every license
Party"iay sell ^^e names of such cities and towns as the applicant selects, with the
on i)aymeut,*c. sum to be paid to the respective treasurers thereof annexed, and shaU
See'§§ is', I'j, 25. receive from the apj)licant one dollar for each city or town so inserted.
Every person so licensed may sell as aforesaid any goods, wares, and
mercliandise, not prohibited in section fifteen, in any city or town men-
tioned in his license, upon first jjaying the sum so required to the treas-
urer of such city or town, who shall certify on the face of the Ucense the
sum so received.
Fees for license. Sect. 18. Every person licensed under the two preceding sections
S^'sl^.'^'' shall pay to the treasurer of each city or town mentioned in his license,
the sums following: for every town containing not more than one
thousand inhabitants, according to the United States census next pre-
ceding the date of his license, three dollars ; for every town containing
more than one thousand and not more than two thousand inhabitants,
six dollars ; for every town containing more than two thousand and
not more than three thousand inhabitants, eight dollars ; for every
town containing more than three thousand and not more than four thou-
sand inhabitants, ten dollars ; and for every city and town containing
more than four thousand inhabitants, ten dollars, and one dollar for
every one thousand inhabitants over four thousand contained therein ;
but the sum so to be paid to a treasurer shall in no case exceed twenty-
five dollars.
licBidcnts pay- Sect. 19. Any person resident, pajdng taxes upon his stock in trade,
may b"iicrased ^^^ qualified to vote, in a city or town, may there expose to sale and
without fee. sell goods, wares, or merchandise, upon obtaining a hcense ]iuisuant
See §§23, 25! to the provisions of sections sixteen and seventeen, and shall not be
required to pay to the treasurer of such city or town any sum therefor.
State licenses Sect. 20. The Secretary, upon the conditions required in section six-
cen'ses!^ ' teen, may grant special state licenses, uj)on ]ia}inent by the a]i]ilicant of
s^''sif'^'^' °''® hundred dollars for each license; and the person so licen.sed may
expose to sale any goods, wares, or merchandise, not prohibited, in any
city or town. He may also grant as aforesaid, upon papnent by the
applicant of one dollar for each county mentioned therein, s])ecial county
Ucenses ; and the person so licensed may expose to sale, witliin such
counties, any tin, britannia, glass, or wooden wares, of the manufactures
of the United States, or any other goods, wares, or merchandise, manu-
factured by liimself or his emjiloyer, and not prohibited in section fifteen,
upon tendering to the treasurer of each county mentioned in s:iid license,
respectively, the sums foUowiug: for Suffolk, Essex, IMiddlesex, and
See §25.
Chap. 50.] hawkers and pedlers. 283
Worcester, each four dollars ; for Norfolk, Berkshire, Hampden, Bristol,
and Plymouth, each tliree dollars ; for Franklin, Hampshire, and Bam-
stahle, each two dollars; for Nantucket, one dollar; for the county of
Dukes County, one dollar. And the county treasurers, respectively, upon
the receipt of any sum, as aforesaid, shall certify the amount so received
on the face of the license.
Sect. 21. The secretary shall keep a record of all licenses granted, Records of li-
with the number of each, the name and residence of the persons licensed, J^'"' 'i4 § g
the counties, cities, and towns, mentioned therein, of all special state See 5 as.'
licenses, and of all transfers of licenses. The treasurers of the counties,
cities, and towns, shall severally keep records of all licenses upon which
the sums jjrovided in this cha|)ter have been paid, with the number
of each, the name and residence of the persons licensed, and the sums
received thereon, and all such records shall be open for public inspection.
Sect. 22. All sums jjaid to the secretary under this ehajiter shall be Sums paid for
for the use of the state ; and all sums \y.nd to the treasurer of a county, app'ropnatedl
city, or town, shall be for the use of such county, city, or town. is4i), a+j, § s.
Sect. 23. A license granted under the provisions of section sixteen t'^'^ ' v
, ^ f, 111 ' 1- . 1 l-iceiisesmay be
or nineteen may be transierred by the secretary, ujion a]i])lication there- transferred,
for and upon evidence furnished by the ap))licant like that required for seejls!'^^'^'*'
gi-antinp; a license. The person to whom it is transferred shall thereafter
be liable in all respects as if he were the person originally licensed. No
person shall sell under such license excej^t the person named therein or
in such transfer.
Skct. 24. Every person hcenscd to peddle as herein before provided Persons n-
shall post his name, residence, and the number of his license, in a con- '„™|"'''jj° ''on*
spicuous manner upon his parcels or vehicle, and when such license is parcels or veiii-
demanded of him by any mayor, alderman, selectman, town or city ii'c™™^on'd&.''''
treasurer or clerk, constable, police officer, or justice of the ]ieace, shall """."'.;*"■
forth witii exhibit it, and if he neglects or refuses so to do, shall be sub- isAi'^iJii^lai
ject to the same penalty as if he had no license. So much of this chapter ^'-''^ ^ ^5.
as relates to hawkers and pedlers, or a synopsis thereof! shall be printed
on every license.
Sect. 25. No license to go about offi^n-ing for sale or selling as afore- Licenses, when
saiil shall operate to defeat or bar a jn'oseeution against the person ""J/y" 4™'*^°'
licensed, if it is proved that he exposed to sale any article except such shall be void, if,
as are permitted in section thirteen in any county, city, or town, where f^^ „,
he was not licensed to sell, or in which he had not paid the sum men- lu. ' ' '
tioned in his license ; but no person so licensed shall be required to make
paAinent to the treasurer of any county, city, or town, before he is pre-
pared to trade therein. The license of any person convicted of a viola-
tion of any provision of this or the ten ])receding sections shall be void.
Sect. 2(3. Whoever couiiteifeits or forges a license, or has a counter- penalty for
felted or forged license in his ])ossession, with intent to utter or use the ^'(.""I'j^nsc""'
same as true, knowing it to be false or counterfeit, or attempts to sell and seUing
under a license which has ex]iired, or is forfeited, or which was not "wi'.'awl's™^'
granted or has not been transferred to him, shall forfeit a sum not
exceeding one thousand dollars.
Sect. 27. Whoever goes from town to town, or from ])lace to place, for unauthor-
or from dwelling-house to dwelling-house, carrying fou sale or ex]josing j"}'' ';;'';■''•
to sale any goods, wares, or merchandise, or takes a residence in any
town lor that jiurjiose for a less tenn than one year, exce])t as herein
before pro\ided, shall forfeit a sum not exceeding two hundred dollars
for each offence.
Se(::t. 28. No hawker, jicdler, or other itinerant trader, holding an nawkers, &c.,
auctioneer's license, shall sell or expose for sale by public auction any '''■'■"*"'■ "» j'™-
, , ,. . ' , . "^ ' , , „ ■ tiDneers, notto
goods, wares, or merchandise, in any otiier city or town than that from 8eii,&c.
whose authorities such license was obtained ; nor in anyplace in such '**^~' ''^'^^*
city or town, except such as shall be expressly described or set forth in
sa'd license.
284
■WEIGHTS AND MEASURES.
[Chap. 51,
CHAPTER 51.
OF WEIGHTS AND MEASURES.
Section
1. Wh.it weights, measures, and balances to
be authorized staudards.
2. To be replaced wheu necessary, and marked,
stamped, &c.
3. Treasurer to keep and furnish duplicates to
sworn deputy ; deputy to keep aud use du-
plicates as standards.
4. to furnish to\ms with sets.
5. County, city, and towu treasurers to pro-
vide for safe keeping, &c.
C. Penalty on treasurers for neglect.
7. Treasurers to have standards proved. Pen-
alty.
8. Each towu sealer to have set of st.indard8.
9. .Sealers accountable to towns for preserva-
tion of standards.
Section
10. Treasurers, deputies, .and sealers, to have
seal. Form of.
11. .Sealers annually to notify inhabitants, &c.,
to have weights, &c., proved.
12. to annually visit and prove platform, &c.,
not to remove standards, &c.
1.1. Penalty for neglect.
14. Fees of sealers.
15. Vibrating steelyards allowed to be used, if
sealed.
16. Penalty for using unsealed weights, &c.
17. *' Hundred weight " to be construed the net
hundred.
18. Rules for weighing.* Penalty for viohation.
Who to be deemed public weighers.
19. Provisions respecting measures for salt and
grain.
Wli at weights,
measures, and
balances to be
authorized
standards.
U. S. const.
art. 1, §R.
1847, 242, §§1,2.
Kesolves, 1847,
55.
To be replaced
when necessa-
ry, aud marked,
stamped, .tc.
K. S. 30, § 3.
Treasurer to
keep and fur-
nish duplicates
to deputy ; dep-
uty to use dupli-
cates as stan-
dards.
E. S. 30, § 4.
1847, 24:.', § 1.
to furnish
towns with
sets.
184.S, .332, § 2.
1850, 295.
Hesolves, 1847,
55.
County, city,
and towu tre.is-
urers to provide
for safe keep-
ing, &c.
R. S. 30, § 5.
1848, 332, §§2,3.
Section 1. The weights, measures, and li.aLances, reeeiverl from the
United States and now in the treasury of the commonwealth, to wit,
one half bushel, one wine gallon, one wine quart, one wine ]iint, one
wine half pint, one yard measure ; a set of avoirdupois weights consist-
ing of fifty, twenty-five, twenty, ten, five, four, three, two, and one
pounds, and from eight ounces down to one draehm ; one set of troy
weights, from five thousand jiennyweights down to half a grain, and
from one pound down to the ten-tiiousandth ]iart of an ounce ; and
three sets of balances : also the measures caused to be ma<le by the
treasurer and now in the treasury, to wit, one of eight quarts, one of
four quarts, one of two quarts, and one of one quart, dry measure, shall
be, remain, and be used, as the sole authorized public standards of
weights and measures.
Sect. 2. Such weights, measures, .nnd balances, as may be procured
from time to time to replace those before mentioned, shall be jireserved
in the same form and of the same dimensions, the denominations of the
weights and measures being marked and stam])ed thereon resjiectively,
and they shall be sealed with the seal which is kept for that purpose by
the treasurer.
Sect. 3. The treasurer shall keep the authorized public standard
weights, measures, and balances, in the treasury, in his care and custody.
He shall furnish duplicates thereof to a dejiuty a]>]>ointed by him, who
shall be sworn and give bond for the faithful discharge of the duties of
his ofHce. The duplicates shall be kept by the de|)uty and used by him
for sealing weights, measures, and balances, in like manner as the stan-
dards ke])t in the treasury may be used by the treasurer.
Sect. 4. The treasurer shall furnish to each town hereafter incor-
porated, at a cost not exceeding one hundred and fifty dollars, a com-
jilete set of standard weights, measures, and balances, such as have
been furnished to other towns, made to conform as near as jiraeticable
to the models caused to be made by the treasurer as town standards.
Tlie expense of transportation shall be defrayed by the town.
Sect. 5. The several county, city, and town treasurers shall, at
the e\])ense of their respective counties, cities, and towns, jirovide
therein, places for the safe and suitable kee]iing and jireservation of the
weight.s, measures, and lialances, furnished by the commonwealtli, which
shall be used only as standards. They shall have the care and incrsight
thereof; shall see that tliey are kejit in good order and repair ; and if
any portion of them are lost, destroyed, or irreparably damaged, shall at
Chap. 51.] weights and measures. 285
the expense of the county, city, or town, replace the same by similar
weights, measures, or bnlaiiecs.
Sect. 6. Each treasurer who neglects to provide a suitable place for Penalty on
kee]iiiig such weights, measures, and balances, or to keep them in good neglect?" *"'
order and repair, or who suffers any of them through his neglect to be is*;, 332, §4-
lost, damaged, or destroyed, shall forfeit two himdred dollars to be
recovered by indictment.
Sect. 7. Each treasurer shall once at least in every ten years have Treasurers to
the standanls in his custody, tried, adjusted, and sealed Ijy the treasurer Ii'irrt/proyeij.
of the commonwealth or his deputy; the exjiense whereof shall be paid Penalty.
by the respective counties, cities, and towns. Every treasurer who IsiiJ 332] 1 5."
neglects to have the standards under his charge so sealed, shall forfeit a
sum not exceeding fifty dollars.
Sect. 8. When a city or town votes to have more than one sealer of Each town Beai-
weights and measures, the treasurer shall, at the exjjense thereof, pro- oi standards"'
cure and preserve the necessary additional seals, weights, and measures, K. S. 30, § li.
before specified ; so that each sealer may have a complete set of the same.
Sect. 9. Every sealer of weights and measures shall receive of the sealers ao-
treasurer a set of the standards and seal, and shall give him a reeei]it to'I'iVs'lror 'pres-
therefor, exjjressing the condition in which the same are ; and he shall ervariim of
be accountable to the city or town for the due preservation of the same k]"s.3o,§'io.
in the like condition, until he redelivers them to the treasurer.
Sect. 10. The treasurer of the commonwealth and his dejiuty, the Treasurcrs.dep-
county treasurers, and the city and town sealers, shall each keep a seal "JI:';'"t'o™avl^'^
for their several uses. The seals of the treasurer and of his dejnity shall >^;ai.
be the letters C 31., those of county treasurers shall be the initial k? s"3o,'§§ 3. 4.
and final letters of their respective counties, followed by the letters o^f!;
Co. ; those of city and town sealers, the name of their respective cities Scejis''
or towns, or such intelligible abbreviation thereof as the mayor and
aldermen or selectmen may prescribe.
Sect. 11. Every sealer of weights and measures shall annually in Sealers to noti.
May advertise in some newspaper, or ]jost up notifications in different i'c!"to'hav"'''
parts of the city or town, for every inhabitant who uses weights and wei^'hts, &c.,
measures for the purjsose of buving and selling, and for jjublic Aveighers 'u."s.%o, § m.
who have the same, to bring in their measures, weights, balances, scales, lf.'j~Jt~' ^^'
and beams, to be adjusted and sealed ; and he shall forthwith adjust
and seal all weights and measiu-es brought to him for that purjjose.
Sect. 12. The sealers of each city and town shall go annually to to visit and
every hay scale or platform balance which cannot be readily removed, P™ve hay scale,
and try, adjust, and seal, the same. No sealer, except for the puqioses not to remove
of this section, shall caiTy his standards of weights, measures, or scales, isi" 242, § b."'
from one ])lace to another, for the puqwse of adjusting others. See §13.
Sect. 13. For every neglect of any duty prescribed in the three Penalty for neg-
preceding section.s, the sealer shall forfeit a sum not exceeding twenty ^^^g 35^ j 01.
dollars.
Sect. 14. Each sealer of weights and measures, including the deputy Fees of sealers.
of the treasurer and county treasurers, shall receive a fee of throe cents i''^"-*^, §§4,c.
for every weight, measure, scale, beam, or balance, by him sealed, ex-
cept ]ilatform balances. For sealing each platform balance weighing
five thousand pounds and upwards, the sealer shall receive one dollar,
and for each plattbrm balance weighing less, fifty cents. Eveiy sealer
shall also have a reasonable compensation for all repairs, alterations,
and adjustments, which it is necessary for him to make.
Sect. 15. The vibrating steelyards which have been heretofore vibratins steel-
allowed and used in this state, may continue to be used : provided, tobo^^'ged^u''^
that each beam and the poises thereof shall be annually tried, proved, seatoi
and sealed, by a sealer of weights and measures, like other beams and ^' '
weights.
Sect. 16. Whoever sells by any other weights, measures, scales, Penalty for
286
SHIPPING AND PILOTAGE.
[Chap. 52.
usinfr unsealed
■weifflits, &c.
1847, 24-.', §§ 5, 6.
1S51, OS.
" Hundred
weif^ht " to be
construed the
net hundred.
K. S. 30, § 25.
Rules for
weij^^liin^.
renalty ior vio-
lation. WIio to
he deemed pub-
lic weij^tiera.
li. S. SU, §§ 36,
Provisions re-
speetin^ meas-
ures for salt
and gndn.
E. S. 30, § 23.
SeeCh.-H,§§63,
180.
beams, or balances, than those which have been sealed as before pro-
vided, shall forfeit a sum not exceeding twcntj' dollars for each oftence ;
and when by the custom of trade they arc provided by the buyer, if he
purchases by any other weights, measures, scales, beams, or balances, he
sliall be subject to a like penalty, to be recovered by an action of tort to
the use of the complainant.
Sect. 17. When commodities are sold by the hundred weight, it
shall be understood to mean the net weight of all packages fi-om one
to one hundred pounds avoirdupois ; and all contracts concerning
goods sold by weight shall be understood and construed accordingly.
Sect. 18. Every public weigher of goods or commodities shall
weigh the same according to the provisions of the preceding section,
and make his certificate accordingly ; and for each refusal or neglect
he shall forfeit a sum not exceeding ten dollars. Every weigher of
goods appointed by a city or town, and every weigher for hire or re-
ward, shall be deemed and taken to be a public weigher within the
provisions of this section.
Sect. 10. In every city and town in which section twenty-three of
chapter thirty of the Revised Statutes has been adopted according to
the provisions thereof, or in which the pro^^sions of this section shall
be accepted by the city council of the city, or by the inhabitants of the
town at a legal meeting, every measure by which salt or grain is sold,
in addition to being conformable in capacity and di.ametcr to the pub-
lic standards, shall have a bar of iron across the middle thereof at the
top, to be approved by a sealer of weights and measures, and a bar
or standard of iron from the centre of the first mentioned bar to the
centre of the bottom of the measure, to be a]i]iroved in like manner;
and every such measure .shall be filled by shovelling such salt or gi-ain
into the same, and the striking thereof shall always be lengthwise of
the first described bar. And whoever sells or exposes to sale any salt
or grain in any other measure, or fills or strikes such measure in any
other manner than is provided in this section, shall forfeit fifty cents
for every bushel of salt or grain so measured, filled, or stricken : pro-
vided, that salt may be measured from vessels in such measures as are
nsed by the government of the United States, and that nothing con-
tained in tliis section shall prevent the measuring of salt in tubs, or any
proportional parts of hogsheads, without bars, as may be determined by
any city or town.
CHAPTER 52.
OF SHIPPING AND PILOTAGE.
pilots and pilotage.
Section
1. Commissioners of pilots. Appointment,
tenure of office, and removal of.
2. to grant commissions as port and bay
pilots.
3. Duties, &c., of bay pilots. Fees.
4. Pilots not to interfere upon each other's
limits.
5. witbin limits, &c., to take charge of all
vessels, except, &c.
6. Vessels inward bound, except, &c., to pay
fees to first pilot, &c.
7. Lien for fees.
8. to give bond.
9. Surety on bond may terminate liability,
&c.
Section
10. Persons without pilot commissions not to
exercise duties.
11. Corami.ssioners to keep an office, register
complaints, &c.
12. Pilots to rentier accounts. Penalty.
13. Commissioners to make, amend, and pub-
lish, regulations.
14. to keep record.
15. Vessels of two hundred tons and under to
pay half pilotage.
10. Vessels exempt.
17. Pilotage of vessels taking steam towage.
SHIP OWNERS, MARINERS, AND CHARTERERS.
16. Ship owners, how far answerable for em-
bezzlement, loss, &c.
Chap. 52.]
SHIPPING AND PILOTAGE.
287
Sectiov
19. Contribution for embezzlement, loss, &c.,
in certain cases.
20. Charterer, to be deemed the owner, in case,
&c.
21. Preceding^ provisions not to affect other
remedies.
22. Boarding certain vessels without leave.
Penalty.
2-3. Persisting when forbidden, &c. Pcniilty.
24. Enticing crew to leave, &n. Penalty.
25. persons to leave who have received ad-
vancements.
26. Seamen exempt from arrest for debt to
landlord, &c.
27. Penalties, how recovered. Arrest.
28. Harbor limits.
29. Word " vessel " construed.
VESSELS AND BO.VTS TRAUSPORTING STON'E,
&C.
Section
30. Weighers of lighters, &c., to bo appointed
by selectmen, &c.
31. Liglitcrs, &c., to be marked.
32. Duty of weighers.
33. Deduction, when maybe made, &c.
34. Persons on board, where to keep while
marks are being taken.
35. Marks, to be annually examined.
.36. Fees.
37. Penalty for neglecting to have lighters
weighed.
38. Penalty for falsely placing marks, &c.
39. Cities, &c., may establish ordinances, &c.,
respecting weigliing, &c., lighters, ttc, em-
ployed in transporting stone, &c.
to grant com-
missions as
port and bay
])il0t8.
1W5, 421,§2.
PILOTS A^^) PILOTAGE.
Section 1. There shall be appointed by the governor with the conimiseionerB
advice and consent of the council, three persons to be commissioners of pilots. Ap-
,. ., 1 1 11 1 1 -I 1 . rt. .. 1 .» 1 1 ponitnuMit, ten-
01 pilots, who shall hold their omces for the term oi tliree years unless urLofomce,and
sooner removed by the governor and council. The commissioners now 5iss5°42i "i'l.
ill office .shall, unless so removed, hold their offices according to the
tenor of their respective commissions. When a vacancy occurs, a new
aj)]iointment shall be made for the full term.
Sect. 2. The commissioners shall grant commissions as pilots in
and for the several ports or harbors, to such number of comjK'tent and
trustworthy persons as they may deem necessary ; and general com-
missions as bay pilots, to all port pilots who may on examination prove
cfunpetent to serve as such, for any two or more ])orts witliin the state.
Tliey may also grant to not more than ten persons who are not port
pilots, and who upon examination jirove competent for the service,
general commissions as bay ])ilots, with authority to pilot vessels into
the ]iorts with which they are familiar.
Sect. 3. General or bay pilots may take charge of vessels bo.irded Duties, &c., of
by them outside of the lines established as the limits of the peculiar ',!.%^'"'°*^-
])i!otngo ground of the several ports, and pilot such vessels into their iws. I2i,§2.
jiort of destination, if included within their commission ; an<1 no other
])ilot subsequently boarding such vessel shall have the right to interfere
or claim any part of the pilotage fees therefor. If the jioit of destina-
tion of such vessel is not included within the commission of tiie pilot
first boarding her, any ]>ilot subsc(iuently boanling her, and within
whose commission her port of destination is included, may take charge
of such vessel, and carry her into ])ort, and in such case tlie i)ilotage
fees shall be divided between the two pilots jjro rata, according to the
distances passed under the charge of each, to be adjusted in case of dis-
pute by the decision of the commissioners or either of them ; but the
pilot tirst boarding the vessel shall receive not less than five dollars.
Sect. 4. No pilot shall interfere with the regular port pilots within pilots not to in-
the lines established as the limits of the iieculiar inlotafire rjround of any terfcreupon
11 1. , . , . . 1 ,.' ... ^ ., ^,, '^ . 1 . '^ each other's
port, by boarding a vessel within said lines, ii a julot oi said jiort is at limits.
the time out in the waters of said port, and in sight. But if no pilot ^^llit'll},^'
of the jiort is so out and in sight, a general or bay pilot commissioned i Uray, 257.
for the ]iort may take charge of any vessel within said lines, pilot her
into port, and receive the usual fees therefor. If in such case the ves-
sel is sulisequcntly boarded by a regular pilot of the port, the general
pilot first boarding her shall receive 2)ro rata ]iilotage, not less in
amount than five dollar.s, as jnovided in the jjreceding section.
Sect. 5. Every pilot shall, within the limits of his commission, and . ^*'"° limits,
1. , -^ ^ . . ,. 1 1. . , ,' A:c., to take
according to the provisions 01 the two preceding sections, take charge charge of all
288 SHIPPING AND PILOTAGE. [ChaP. 52.
veseis except, of all vessels, except fishing vessels other than whaling vessels, single-
K?'s. 32, §§ 7, 13. decked vessels of not more than three hundred and fifty tons sailing
isii,457§ 1. ' ' under a coasting license, vessels sailing from one port in the state to
1S47,.2,9, § 4. another, and not in comijletion of a voyage from a ])lace out of the
state, and jiassenger steam vessels regulated by United States laws, and
carrying a United States pilot.
VeBseis inward Sect. 6. Every vessel inward bound, other than those included in
&c""to pavTws tlie exception in the ])receding section, and excepting also vessels of
to first pilot, not more than two hundreil tons and those drawing less than seven
K?'s. 32, §§ 7, 12. feet of water, shall pay to the first pilot oflering his services and com-
iliJ'^oVi missioned for her ]iort of destination, tlie regular pilotage fee. But
vessels of not more than two hundred tons, not taking a ))ilot, shall jjay
only half pilotage fees, and those drawing less than seven feet of water
and not taking a jjilot, shall be wholly exempt therefi'om.
Lien for fees. Sect. 7. Every pOot shall have a lien for his pilotage fees, for the
space of sixty days, upon the hull and appurtenances of any vessel
liable to him therefor,
to give bond. Sect. 8. No i)erson shall receive a commission or exercise the office
naa, 2 ,y . of jj pilot, until he has given to the treasurer of the commonwealth a
bond with sureties satisiactory to the commissioners, in the penal sum
of one thousand dollars, for the faithful performance of all the duties
required by law of a pilot.
Surety on bond Sect. 9. A surety On a pilot's bond may, at the end of any year,
UiibiiH.™&c!*'' terminate his liability thereon for the future acts of the jiilot, by giving
K^. 32, §18. to the treasurer and the commissioners at least thirty days' notice of his
' ' determination ; and the commissioners shall thereupon immediately
notify the pilot, and require hina to jirocure a new surety, under penalty
of forfeiting his commission at the end of the year. And if at any time
a pilot's bond appeara to the commissioners insufiicient, they may re-
quire him, under a like penalty, to furnish a new bond.
Persons with- Sect. 10. Whoever, not holding a commission as a pilot, (except
out pilot com- persons emiiloved on board of the vessel for the voyage,) exercises the
missions not to 1 . l J , « , • i ■ ., r j? ii • .. ^
exercise duties, duties of a pilot on board of any vessel withm the waters oi this state,
5^et' 112! *' when a commissioned ])ilot oflers his services, or can be obtained at a
reasonable time, shall forfeit not less than twenty and not more than
fifty dollars, whether the vessel is liable to compulsory pilotage or not.
Commissioners Sect. 11. The commissiolicrs of pilots shall keep an office ojien at
flie'"^ri'4'"te1*' ^^ times to receive, consider, and register in a book kept for tlie pur-
compiamts, &c. posc. Complaints by and against pilots, and shall examine the e\idence
185d,421, §4. concerning the same. If a ]>ilot is guilty of an act whereby the conili-
tion of his bond is broken, the commissioners shall make complaint
thereof to the treasurer, wlio shall cause a suit to be forthwitli com-
menced and security to be taken lor the benefit of all persons \\-ho have
suflered by the misconduct or negligence of such pilot, and like proceed-
ings shall be had as in suits on shenfl"s bonds.
Pilots to render "Sect. 12. Each pilot shall once in every three months render to the
ac^uunts. Pen- commissioners an account of all vessels piloted and of all money
is55',42i, §5. received by him, or by any person for him, for pilotage, and pay to the
commissioners six per cent, on the amoimt thereof, which shall be in full
for their official services, and for the exjicnses of the office ; and pilots
may add six per cent, to the rates established by law at the time when
they perform the service of i)iloting any vessel, and collect the same m
like manner as they are authorized to collect the pilotage fees. K a
l)ilot makes a false return of moneys so received, he shall forfeit a sum
not exceeding fifty dollars.
Commissioners Sect. 13. The commissioners may from time to time make rules and
au.T|mhii"iires- I'egulations concerning jiilots and ]iilotage, establishing the ijort and
uiations. ° harbor Unes of the several ports and liarbors, and the limits -(vithiii which
{. s. 32,§§i , ygjjgg^ jjjjjjji K cvemut from compulsory pilotasre, and fixing the rates
24.
Chap. 52.] shipping and pilotage. 289
of pilotage, which shall be in proportion to a vessel's draught of water. 1847, 279, §2.
Such rules and regulations, after being approved by the governor and 1*55, 121, §0.
council, and publislied one week in one of the news])apers printed in the
city or county to wliich they apply, shall be in full force. All existing
rules and regulations not inconsistent herewith, shall continue in force
until altered, amended, or repealed, as above provided. The commis-
sioners shall, at least twice a year, at their own expense, publish all the
regulations in force concerning the pilotage of the state ; and shall cause
the regulations and laws concerning pilots and pilotage to be observed
and executed.
Sect. 14. They shall keep a record of all their official acts, and annii- commissioners
ally on or befoi'e the fifteenth day of October shall make a report to the 5n5'^''5',"T-'''^'
socretarj'of the commonwealth of their proceedings for the year ending iMrJw.'
on the last day of the preceding montli. ^'^''' '"'"
Sect. 15. Vessels of two hundred tons and under, sailing imder a Vessels of 200
register in any of the navigable waters or ports of the state, shall be fo"riiy"uiai"pii'^'
lield to pav only one-half of the rates of pilotage to which vessels of lotage.
that class are at "the time liable. ''^'' -^'' ^ *"
Sect. 16. No single-decked vessel of three hundred and fifty tons Vessels ex-
and under sailing under a coasting license, shall be liable to pay com- j^^'ooi §2
]iulsory pilotage for any navigable waters or ports of this state ; but if
the services of a commissioned ])ilot are voluntarily requested or
accepted fir the conduct of such vessel, they shall be ])aid for at the
rates and in the manner prescribed by the regulations of the pilot com-
missioners.
Sect. 17. Vessels taking steam towage into or out of a port or har- Piiotam of ves-
bor of this state, by direction of the owner or master, shall pay full jiilot- stwim to"Jfa<re
age; but when steam towage is taken bj^ request of the pilot, the vessel isor, 221, §3.
shall be liable to pay only seventy-five per cent, of the rates of pilotage
to which such vessels would otherwise be liable.
snip OWNERS, MAEINEKS, AND CHABTEREKS.
Sect. 18. Xo .sliip owner shall be answerable, beyond the amount of Ship owners,
his interest in the shij) and fi-eight, for any embezzlement, loss, or destruc- abi" [or tmte""
tion, hv the master or mai-iners, of goods, wares, or merchandise, or anv j'^^ment, &c.
jiroperty ]iut on board of his ship or vessel, nor for any act, matter, or iiMass! icj.'
thing, damage, or foifeituie, done, occasioned, or incun-ed, by the master
or mariners, without his privity or knowledge.
Sect. 19. If such embezzlement, loss, or destruction, is suffered by Contribution
several fi-eighters or owners of goods, wares, or merchandise, or any menT'ioss'&c
])roperty whatever, on the same voyage, and the whole value of the ship in certain cases"!
or vessel and her freight for the voyage, is not sufficient to make com- ^' ^' ''■^' ^ ~'
pensation to each of them, they shall receive compensation from the
owner of the ship, in proportion to their resjieetive losses ; and for that
purpose, the freighters and owners of ])ro]ierty, and the owners of the
ship or vessel or any of them, may prosecute a suit in equity for a dis-
covery of the amount of the loss or damage, and of the value of the
ship and freight, and for the equal distribution and payment of the sum
for which tlie owners of the sliip may be liable, among the parties enti-
tled to the same.
Sect. 20. Tlie charterer of a vessel, if he navigates such vessel at Charterer to be
his own expense, shall be deemed the owner within the meaning of the ^^^ owner,
two preceding sections. R- s. 32, § 3.
Sect. '21. Nothing contained in the preceding sections, shall take Preceding pro-
away or aftect tlie remedy to which a j>arty is entitled against the mas- atrect'other ''* '
ter or mariners, on account of the embezzlement, loss, or destiiiction, of n'medies.
goods, wares, or merchandise, or any ]iroperty, on board of a ship or ' '
vessel, or on account of fraud or malversation of such master or mariners.
2o 37
290 SHIPPING AND PILOTAGE. [ChAP. 52.
Boarding cer- Sect. 22. Any person except a jiilot or public officer, who boards or
without leave, atteiiijits to board a vessel arrivina; in Boston Harbor, Salem Harbor,
Penalty. Fn\\ Ri\-er Harbor, or the harbor of New Bedt'oi-d and Fairhaven, before
' ' such vessel has been made fast to the wharij without obtaining leave
fi-om the master or person having cliarge of such vessel, or leave in
writing from lier owners or agent, shall forfeit a sum not exceeding fifty
dollars for each ollence.
Persistins Sect. 2.3. Wlioever without such leave, and without authority of
deif It"'*"' ^'''^' hoards a vessel in either of said harbors after having been ordered
Penalty. not to do SO by a person having charge of such vessel at the time, or
185/, 139, §§ 2, 3. }j^yj,jg boarded such vessel refuses or neglects to leave her when ordered
so to do by the jierson having charge of such vessel, shall forfeit a sum
not exceeding fifty dollars.
Enticing crew S EOT. 24. Whoever entices or persuades, or attempts to entice or
to leave, &c. persuade, any member of the crew of a vessel arriving in, or about to
185?', 139, § i. sail from, either of said harbors, to leave or desert said ves.sel before the
exjiiration of his term of service therein, shall forfeit a sum not exceed-
ing fifty dollars for each offence,
persons to Sect. 25. Whoever knowingly and wilfully persuades or aids any
rccoh-Mi'ad-''^'' person who has shipjjed on a voyage from a ])ort in this state, and
vancements. received advanced wages therefor, wilfully to neglect to proceed on such
1K57 139 65 . '^^o i
' voyage, shall forfeit a sum not exceeding one hundred dollars.
•Seamen exempt Sect. 2G. No Seaman or mariner who has shi])pod for, or entered
dcbt'to I'nV"' "^''° contract for a voyage, from any ]>ort in this commonwealth, shall
lord, &c. be lial;)le to arrest on mesne jirocess on account of a del)t or obligation to
1859, 23o. j^jjy i<^],(|iord or boarding-house keejier ; nor shall such landlord or board-
ing-house keeper detain, or have a Uen upon the wearing ap]jarel or
other property of such seaman or mariner, or hinder, obstruct, or delay
him in the performance of said contract of shipment, under a penalty of
not exceeding two hundred dollars.
Penalties, how Sect. 27. When either of the offences mentioned in the five preced-
rest^"""^' ^^"^^ ™S sections is committed in Boston or Boston Harbor, the ]ienalty may
1857, 139, §0. be recovered by complaint in the police court of Boston ; when in Salem
or Salem Harbor, in the police court of Salem ; when in Fall River or
Fall River Harljor, in the police court of Fall River ; when in New
Be<lford or Fairhaven, or in the harbor of New Bedford and Fairhaven,
in the jiolice court of New Bedford. Whoever commits any such offence
may be arrested without warrant by any ofKcer qualified to serve crim-
inal process in the city where the offence may be tried : 2^)'0vi(lcd, he
shall be forthwith brought before the court.
Harbor limits. Sec't. 28. For the purposes of the six preceding sections, the outer
8*Mot' 3'i9^ "' limits of Boston Harbor, for vessels bound thereto, shall be a line drawn
OMetisri.' from Harding's Rock to the Outer Graves, and from thence to Nahant
6CUS1...308. Jie;i[l, and said harbor shall include the shores of Chelsea and Charles-
town; the outer limits of Salem Harbor, for vessels bound thereto, shall
be the chops of said harbor ; the harbor of Fall River shall include the
waters of Taunton Great River and Mount Hojie Bay, from the south
line of the town of Freetown to Rliode Island State line, including the
shores of Somerset ; and the hartiors of New Bedford and Fairhaven
shall be considered one harbor, the outer limits of which, for vessels
bound thereto, shall be the outer limits of Buzzard's Bay.
Woni" vessel" Sect. 29. The word vessel in the seven preceding sections shall
w,' i39,''§ 7. include vessels propelled by steam.
VESSELS AND BOATS TRANSPORTING STONE, &C.
Weighers of Sect. 30. Tlie mayor and aldci-men and selectmen of cities and
E? s.'^Ji,' f i".' towns where lighters or other vessels are employed in transporting
11 Met. 59. stones, gravel, or sand, shall annually in March or April appoint one or
^* " more weighers of vessels, who shall be sworn.
Chap. 52.] shipping and pilotage. 2C1
Sect. 31. Every lighter or other vessel emploj'efl in trnnsporting Li^iitcTs, &c.,
stone sold by weight, or gravel, or sand, shall be marked on the stem g g[ 3i*§'^]!'^'
and stern post, nearly level with the bend of the vessel, with stationary
marks of bar iron, not less than six inches in length, and two and a half
inches in breadth, fastened with two good and sufficient iron bolts driven
through said stem and stern post and riveted into said bar iron,
from wliich all other marks shall take their distance in feet, inches, and
parts of inches, as the distance may require, from the lower edge of the
stationary marks to the lower edge of the other marks ; which marks
shall be as follows : light-water marks, not less than four inches in length
and one inch and a half in breadth ; and eveiyfour tons above said light-
water marks, legibly cut, or cast, in figures of 4, 8, I'i, 16, 20, and so
forth, up to the full capacity of the vessel. Said figures shall express
the weight which such vessel is capable of carrying when the lower part
of the respective numbers aforesaid shall touch the water; and all the
marks shall be of good an<l sufficient lead or cojijier, fastened on the
stem and stem post of each vessel with sufficient nails not less than one
inch in length.
Sect. 32. Each weigher, when thereto requested, shall furnish the Duty of weigh-
requisite marks and nails, and shall cause lighters and other vessels- to j"g 3, o^
be weighed and marked in conformity ^\ith the provisions of the ])re-
ceding scctioii ; and during the time of weighing and marking them,
all jiersons employed on board shall be stationed between the bulk head
and the fore chains. He shall keep a correct account of the distance
of each mark below the stationary marks, in feet, inches, and parts of
inches, in a book jirovided for that j)urpose, and give a certificate thereof
expressing the distance, to the master of every such vessel.
Sect. 33. In taking the tonnage of every such vessel, a deduction Deduction,
may be made of one ton, for every inch that tiie light-water marks may ^uaJi".""'' '^'^
be under water, after such vessel has discharged her loading. i'- f'- si, §4-
Sect. 34. Every person on board of such vessel, who does not keep Persons on
witliin the bounds of the bulk head and fore chains during the time of 5j°.;;[,''^,.]J'^,\7'' '"
takinrr her marks, or while any weiffher is emuloved in weiirhina; or marks arc be-
marking, unless in case of absolute necessity, shall forfeit a sum not ex- ufs 3i,§5.
ceeding twenty dollars for each offence.
Sect. 35. Such vessels shall have their marks examined annually in Marks to be an-
June, by a sworn weigher, and if the marks agree with their former cer- S/ "'"■'^*™"
tifieates, he shall certify the same accordingly. Otherwise he shall keep R-S. 3i,§fl.
. . . o ^' _ ^ * 11 Met 5O
such certificates in his possession, to be used as evidence against the
master or owner of such vessel in any prosecution under the provisions
of this chapter, and such vessel shall be weighed again.
Sect. 36. Each weigher shall receive from the owner or master of a Fees,
vessel weighed and marked, twenty cents for every ton of such vessel, I'-S. 3i, §7.
and four dollars for furnishing marks, nails, and other necessary articles,
fastening the same, and giving the certificate. For the ser\ices requu-ed
by the preceding section, he shall receive one dollar and fifty cent.s.
Sect. 37. Every owner or master of any such vessel who neglects to Penalty for ncg-
have the same weighed, marked, and examined, according to the pro- ij!rhtl.fs'wei"'h-
visions of this chapter, or who removes any marks, or alters his certifi- eS.
li S 11 S 8
eate, shall forfeit a sum not exceeding three hundred dollars for each ' • ' ' ' •
offence.
Sect. 38. Every weigher who places any such mark contrary to the Penalty for
provisions of this chairfer, or wlio gives a false certificate, shall forfeit a J,"|,rks,£'''°
sum not exceeding three hundred dollars for each offence. H- s. 31, §9.
Sect. 39. Any city or town may establish ordinances resjiecting cities, &c., may
marking and weighing of lighters and other vessels emjiloyed in trans- f,^''(!es*&c'^''re-
]iorting stones, gravel, sand, or other ballast ; the inspection and weigh- »i>ecting weijjii-
ing of such ballast within the city or town, and the appointment and "rs," &c.,' em- "^
compensation of weighers, markers, inspectors, and other officers, neces- p'oy^d in trans-
292
MONEY OF ACCOUNT, INTEREST.
[Chap. 53.
porting stone, sarj' to caiTj' tlie same into effect ; and may affix penalties for breaches
1M8, 308, §§1,2. thereof, not exceeding those mentioned in sections thirty-four, thirty-
seven, and thirty-eight ; wliicli ordinances, so far as they extend, shall
regulate the subject matter thereof within the limits of the city or town.
CHAPTER 53.
OF MONEY, BONDS, BILLS OF EXCHANGE, AND PROMISSORY NOTES.
money of account.
Section
1. The money of account of this state.
2. All accounts to be reduced to legul money
of account, in suits.
INTEREST OF MONEY.
3. Rate of interest to be si.x per cent.
4. Contracts not avoided by usury, but de-
fendant to forfeit tlireetbld interest and
costs.
5. Party paying usury may recover threefold
the sum paid.
BONDS.
6. Bonds of corporations negotiable.
BILLS OF EXfMLlNOE .VND PKOJIISSOEY NOTES.
7. Payment and protest of bills, &c., maturing
on Fast, Christmas day, &c.
Section
8. When demand must be made, &c.,to charge
indorsers of notes on demand.
9. Liability of indorsers of notes payable on
demand.
10. Defence to suits on notes payable on de-
mand.
U. Damages on bills payable beyond limits of
of United States, except, &c.
on bills payable beyond Cape of Good
Hope, &c.
on bills payable witbont this state, but
within the United States.
on bills payable witliin this state.
15. Days of grace allowed on bills, «tG.
Hi. not when payable ou demand.
12.
13.
14.
The money of
account.
K. S. 3S, §5.
All accounts to
be reduced to
legal money.
K. S. 3J, § 6
MONET OF ACCOtTNT.
Sect. 1. The money of account of this commonwealtli shall be the
dollar, cent, and mill. Accounts in the public offices, and other public
accounts and proceedings in court, shall be had and kept in conformity
to tliis regulation.
Sect. 2. Nothing contained in the preceding section shall vitiate or
affect an account, charge, or entry, originally made, or a note, bond, or
other instrument, expressed in any other money of account ; but in a
suit thereon the same shall be reduced to dollars and parts of a dollar.
Rate of interest.
U. S. :!:i, § 1.
12 Pick. 5S6.
Contracts not
void }}y usury.
Forfeiture, &c.
K. S. 33, § 2.
I84I1, 109, § 1.
7 Pick. K).
I Met. 398, 488.
3 Met. 21 1,522.
(> Met. 291).
7 Met. 14.
II Met. 52fi.
12 Cush. 156.
Threefold may
be recovered,
&c.
U.S. .35, §.3.
1K4(), 199, § 2.
1855, 194.
1 Met. 553.
7 Met. 535.
3 Gray, 225.
4 Gray, 593.
INTEREST OP MONEY.
Sect. 3. The interest of money shall continue to be at the rate of six
dollars, and no more, upon one hundred dollars for a year, and at the
same rate for a greater or less sum, and for a longer or shorter time.
Sect. 4. No contract or assurance for the papnent of money, with
interest at a greater rate than is allowed by the preceding section, shall
be thereby rendered void; but when m an action brought on such con-
tract or assurance it api)oars tliat a gi-eater rate of interest than is
allowed by law has been directly or indirectly reserved, taken, or
received, the defendant sliall recover his full costs, and the plaintiff shall
forfeit threefold the amount of the interest unlawfully reserved or taken,
and no more, and shall have judgment for the b.alance remaining due
after deducting said threefold amount.
Sect. 5. When a greater rate of interest than is allowed by law
has been paid, the party paying the same may either by an action of
contract or suit in equity recover back threefold the amount of the un-
lawful interest so pidd, and no more : provided, that such action or suit
shall be jjrosecuted within two years from the time of payment.
Chap. 53.] bonds, bills op exchange and promissory notes. 293
Sect. 6. Bonds and other obliarations under senl for the iiavnient of Bonds of corpo-
j.'ii ii?iii 1* rations in?<jotia-
money puqjorting to be payable to the hearer, or some person ilesig- bi^ =
nated or bearer, or ])ayable to order, issued Ijy any corporation or joint i'*^-. "<J.
stock company, shall be negotiable in the same manner, and to the same
extent, as promissory notes.
BILLS OF EXCHANGE AXD PEOMISSOEY NOTES.
Sect. 7. Bills of exeliange, drafts, promissory notes, and contracts. Payment and
due and payable, or to be executed, on Sunday or Tlianksgiving, Fast, Sc", mat'urin.'"'
or Christmas day, the twentv-secontl day of February, the lourtli day of <>» '■''ist' dirfst-
T 1 I !• II • 1*1 -.1 /• I S 1 • 1 mas day, Ac.
July, or on the loliownig day when either ot the t\yo days last mentioned isao, ii3, §§ i, 2.
occurs on Sunday, shall be payable or performable u])<)n the business
day next preceding said days; an<l in case of non-]ia3'ment or non-fulfil-
ment, may be noted and protested upon sudi preceding day ; but the
holder or liolders of such obligations need not giye notice of the dis-
honor, non-pajnient, or non-fulhlment thereof, until the business day
next following the days aboye specified.
Sect. 8. Upon a promissory note payable on demand, a demand when demand
made at the expiration of sixty days fi-om the date thereof, without ""fto charge'
grace, or at any time within that term, shall be deemed to be made indorsersot
within a reasonable time ; and any act, neglect, or other thing, which maud.
by the rules of law and the customs of merchants is deemed equiyalent !^^"'; '-''!,-■
Ill 11 /• 1 • ^1 Met. 400.
to a ])resentment and demand on a note payable at a fixed time, or
which would dispense with such iiresentinent and demand, if it occurs
at or within said term of sixty days, shall be deemed a dishonor thereof,
and sliall authorize the holder of such note to giye notice of the dis-
honor to the indorse!', as upon a presentment to the promisor and his
neglect or refusal t(j pay the same. No presentment of such note to the
promisor and demand of payment, shall charge the indorser, unless
made on or before the last day of said term of sixty days.
Sect. 9. The seyeral indorsers of promissory notes payable on de- Notes jiayabie
raand, ujion due and seasonable notice of the dishonor of such notes, lljiityonndor'-
shall be liable in the same manner and to the same efiect as upon the ser.
dishonor of promissory notes payable at a fixed time, and not otherwise. ''^'' ~ '^'-
Sect. 10. In any action by an indorsee against the promisor defence to
brought upon a promissory note made after the sixth day of May, jSs'i'^ ""i, § i.
eighteen hundred and thirty-nine, and payable on demand, any matter iws, «<.
sh.all be deemed a legal defence which would be a defence to a suit n m,V. si's.'
thereupon if brought Ijy the promisee : jjrovidcd, that no matter arising jf*jiJ.,''fj',^,j
after notice of the indorsement or transfer of such note is giyen to tlie s c'ush. 2or.
promisor shall constitute a defence. * '*'"''' '■"*'
Sect. 11. When a bill of exchange, drawn or indorsed within this Damages on
state and payable without the limits of the United St.ates, (excepting beyonu'/imlts
places in Africa beyond the Cape of Good Hope, and places in Asia "5 1''^' '^'''
and the islands thereof) is duly protested for non-acceptance or uon- r. s'. :», § i.
payment, the party liable for the contents of such bill shall, on due
notice and demand thereof, pay the same at the current rate of ex-
change at the time of the demand, and damages at the rate of fiye per
cent, upon the contents thereof, together with interest on the contents,
to be computed from the date of the protest ; and said amount of con-
tents, d.amages, and interest, shall be in full of all damages, charges,
and expenses.
Sect. 12. Wben a bill of exchange, drawn or indorsed as mentioned on bills paya-
in the preceding section, and payable at any place in Africa beyond the ofCjobd'HoM','^
Cape of Good Hope, or any place in Asia or the islaiuls thereof, is duly *c-
protested for non-acceptance or non-payment, eyery party liable for the ' ■^^^'^~^
25*
294
AGENTS, CONSIGNEES, AND FACTORS. [ChAP. 54.
Dan^iges on
bills payable
without this
state, but with-
in U. S.
K. S. 33, § 3.
1837, 23i».
on bills paya-
ble within this
state.
K. S. 33, § 4.
5 Greenl. 171.
P.iys of grace.
K. S. 33, § 5.
4 Mass. 2ol.
:il Pick. 4S3.
6 Met. 13.
not when pay-
able on demand.
K. S. 33, § 6.
contents thereof shall, on due notice and demand, p.ay the same at the
par value thereot^ with twenty per cent, thereon, in full of all damages,
interest, and charges.
Sect. 13. The rates of damages to be allowed upon bills of exchange
duly protested for non-acceptance or non-payment, if drawn or imlorsed
within this state, payable at a place without this state but within the
United States, shall, in addition to the contents of such bill with
interest and costs, be as follows : if payable within the states of Maine,
New Hampshire, Vermont, Rhode Island, Connecticut, or New York,
two per cent. ; New Jersey, Pennsylvania, Maryland, or Delaware, three
per cent. ; Virginia, North CaroHna, South Carolina, Georgia, or in the
District of Columbia, four per cent. ; and if in any other of the United
States or the territories thereof, five per centum.
Sect. 14. The rate of damages, upon bills of exchange or orders for
the ]i,ayment of money, drawn or indorsed within this state, for a sum
not less than one hundred dollars, and payable within the state at a place
not less than seventy-five miles distant from tlie place where the same is
drawn or indorsed, when such bills or orders are not dul}' accepted or
paid, shall be one per cent, in addition to the contents thereof^ and in-
terest on the contents.
Sect. 15. On bills of exchange payable within this state at sight or
at a future day certain, and on promissory negotiable notes, orders, and
drafts, payable within this state at a future day certain, in which there
is not an ex])ress sti]iulation to the contrary, grace shall be allowed, ex-
cept as provided in the following section, in like manner as it is allowed
by the custom of merchants on foreign bills of exchange payable at the
expiration of a certain period after date or sight.
Sect. 1(3. The provisions of the preceding section .shall not extend
to any bill of exchange, note, or draft, payable on demand.
CHAPTER 54.
OF AGENTS, CONSIGNEES, AND FACTORS.
Section-
1. Shijipers of merchandise in possession to
be deemed true owners, unless, &c.
2. Factors, &c., in jjosscssion of merchandise,
or bill of lading, to be deemed true o\vner.
3. Cousi^iee of person having possession of
merchandise with authority to sell, to have
lieu for advances, if, &e.
4. Pledgee of person having possession of
Section
merchandise or bill of lading with power to
sell, to acquire rights of such person, if,
Ac.
5. When pledge is for antecedent debt, pledge
to acquire no other right, &c.
6. Limitations and restrictions on preceding
sections.
Shippers of
merchandise in
possession to
be deemed true
o\vners, &c.
1845, lya, § i;
Factor, &c., in
possession of
merchandise,
&c.,to be deem-
ed owner.
1845, 103, §2.
Consignee of
Section^ 1. Every person in whose name merchandise is shipped
for sale by a person in the la\\'ful possession thereof at the time of the
shipment, shall be deemed to be the true owner thereof so for as to en-
title the consignee to a lien thereon for money advanced or securities
given to the shipper for or on account of such consignment, unless the
consignee, at or before the time when he made the advances or gave the
secunties, had notice, by the bill of lading or otherwise, that the shijiper
was not the actual and bonajidv owner.
Sect. i. Every factor or other agent intrusted with the possession
of merchandise, or a bill of lading consigning merchandise to him, for the
purpose of sale, shall be deemed to be the true owner thereof so far as
to give validity to any bona fide contract made by him with any other
person for thesale of the wliole or any part of such merchandise.
Sect. 3. When a person intrusted with merchandise, and having
Chap. 54.] agents, consignees, and factors. 295
authority to sell or consign the same, ships or otherwise transmits or person having
delivers it to uny other person, such other jjerson shall have a lien iiurrHmmMse'
thereon for any money or merchandise advanced or negotiable security witii ^luthority
given by him on the i'aith of such consignment, to or for the use of the ninVor ud-
person in whose name such consisrnment or delivery was made ; and for y°II'''.f,','''cff'o
^ • T 1 • 1 T ' - -1 i. 1 ^ IMy, 210, §§ 1, 2.
any money, negotiable security, or mercliandise, recened tor the use ot
the consignee by the person in whose name such consignment or de-
livery was made ; if such consignee had at the time of such advance or
receipt jirobable cause to believe that the person in whose name the
merchandise was shii)ped, transmitted, or delivered, was the actual
owner thereof, or had a legal interest therein to the amount of said
lien.
Sect. 4. When a consignee or factor having possession of merchan- piedffee of per-
dise with authority to sell the same, or having possession of a bill of lading, po^seslimf of
permit, certificate, or order, for the delivery of merchandise, with like au- morchnuiiise or
thority, deposits or ])ledges such merchandise or any jiart thereof, or such ivith power to
document, with any other person as a securitv for monev or merchan- '*;'",•*" »<''i"ire
dise ailvanced or a negotiable instrument given by him ujion the credit person, if, &c.
thereof, such other person (if he makes such loans, advances, and ex- isw, aio, §3.
changes, in gooii faith and with jjrobable cause to believe that the agent
making the de]iosit or pledge had authority so to do, and was not acting •
fraudulently against the owner of such merchandise) shall acquire the
same interest in, and authority over, such merchandise and documents
as he would have acquired thereby if the agent had been the actual
owner thereof, notwithstanding he had notice of such agency.
Sect. 5. When such merchandise or document is accepted in do- whm pledge is
posit or ])ledge for an antecedent debt due from such consignee or d'J'ii^piSg™ to
factor, the person receiving the same shall thereby acquire no other or """j'"''''^."?,
further right, or interest in, or authority over, or lien iqion, the same, iwj, 2i(s§4.
than the consignee or factor might have enforced against the actual
owner.
Sect. 6. The provisions of the three preceding sections shall not Limitations and
affect the lien of a consignee or factor at law for the ex]3enses and p,v|."diu""scc"
charges attendino; the shipment, transportation, and care, of merchan- tions.
dise intrusted to liim ; nor prevent the actual owner from recovering
8uch merchandise ti'om the consignee or factor previous to the pledge
thereof, or from his assignees in case of his insolvency ; nor ]irevent
such owner from recovering any merchandise or document so deposited
or pledged, upon tender of the money and restoration of the negotiable
security or property so advanced to such consignee or factor, and ujion
tender of such further sum of money and restoration of such negotiable
instrument or property as may have been advanced or given by the con-
signee or factor to the owner, or upon tender of a snm of money equal
to the amount or value thereof; nor prevent him fi'om recovering from
the person with whom such merchandise may have been so de])Osited
or pledged, any balance of money remaining in his hands as the pro-
ceeds of the sales thereof, after deducting the amount of the moneys or
of the negotiable security so advanced thereon.
296
LIMITED PARTNERSHIPS.
[Chap. 55.
CHAPTER 55.
OF LIMITED PARTNERSHIPS.
Section
1. Limited partnerships may be formed, ex-
cept lor baakiug, &c.
2. General and special partners, and their lia-
bilities.
3. Certificates to be made by partners, specify-
ing names, stock, &c.
4. to be acknowledged and recorded. If
false, all li.-ible, as general partners.
5. to be published for six weeks, other-
wise partuersliip shall be deemed general.
Section
(}. I'rovision for renewal of partnerships.
7. Partnership style, &c.
8. Capital stock not to be withdrawn, &c.
9. Suits to be by and against the general part-
ners, except, &c.
10. Dissolution, how efTected.
11, Liability of i)artuer8, in cases not specially
provided for.
Limited part-
nerships may
be formed, ex-
cept for bank-
ing, «fcc.
U! S. .34, § 1.
General and
special part-
ners, and their
liabilities.
K. S. 34, §2.
Certificates to
be made by part-
ners, specifying
names, stock,
Ac.
K. S. 34, §3.
to be acknowl-
edged and re-
corded.
if false, all
liable as general
partners.
E. S. 34, §4.
to be publish-
ed ; otherwise
partnership
shall be gen-
eral.
K. S. 34, §5.
Provision for
renewal of
partnerships.
K. S. 34, § 0.
Section 1. Limited partnerships for the transaction of mercantile,
mechanical, or manufacturing business witliin this state may be formed
by two or more persons, upon the terms .and subject to tlie conditions
and liabilities prescribed in this chapter ; but nothing herein contained
shall authorize such partnerships for the jiurpose of banking or in-
surance.
Sect. 2. Such partnerships may consist of one or more persons, who
shall be called general jiartners, and shall be jointly and severally re-
s])onsible as general ]iartners now are by law, and of one or more per-
sons who shall contribute to the common stock a specific sum in actual
cash payment as capital, and who shall be called special jiartners, and
shall not be ])ersonally liable for any debts of the partnership except in
the cases hereinafter mentioned.
Sect. 3. The persons forming such )iartncrshi]is shall make and
severally sign a certificate, which shall contain the name or firm under
which the jtartnership is to be conducted, the names and respective
places of residence of all the general and special partners, distinguish-
ing who are general and who are special jiartners, the amount of capital
which each sjiecial jjartner has contributed to the common stock, the
gener.al nature of the business to be transacted, and the time when the
partnershi}) is to commence, and when it is to terminate.
Sect. 4. No such jiartnership shall be deemed to have been fonnecl,
until a certificate so made shall be acknowledged by all the jiartners be-
f>re some Justice of the jieace, and recorded in the registry of deeds of
the county or district in which the princijial jilace of the business of the
partnership is situated, in a book to be kejit for that jiuijiose, ojien to
public in.sjtection ; and if the partnership shall have jilaces of business
in <lifierent counties or districts, a copy of the certificate certified )iy the
register of deeds in whose office it is recorded, shall be filed and re-
corded in like manner in the office of the register of deeds in every such
county or district. If a false statement is made in such certificate, all
the persons interested in the partnership shall be liable, as general part-
ners, for all the engagements thereof.
Sect. 5. The partners shall, for six successive weeks immediately
after such registry, jiublish a copy of the certificate above mentioned in
a newspaper jirinted in the county where their jirincijial jilace of busi-
ness is situated ; or if no such paper is there printed, then in a news-
pajier printed in the city of Boston ; if such publication is not so made,
the partnenshij) shall be deemed general.
Sect. 6. Uj^on every renewal or continuation of a limited partner-
ship beyond the time origin.ally .agreed ujion for its duration, a certificate
thereof shall be made, acknowledged, recorded, and puldished, in like
manner as is jirovided in this chajiter for the original formation of
limited partnerships ; and every such partnership not renewed in con-
Chap. 5G.] trade marks and names. 297
fomiity with the provisions of this section shall be deemed a general
jiartiierslii]).
Sect. 7. Tlie business of the partnership shall be conducted under a Partnership
firm in which tlie names of the general partners only sliall be inserted, f^o^gf"'
witliovit tlie addition of the word company or any other general term. i*3»> us.
If the name of any special partner is used in such fimi with his consent
or privity, he shall be deemed and treated as a general partner, or if he
personally makes any contract respecting the concerns of the partner-
ship witli any jierson except the general partners, he shall be deemed
and treated as a general partner in relation to such contract, unless he
makes it ajipear that in making such contract he acted as sjjecial part-
ner only. If the firm consists of more than three general jiartners, all
their names need not be inserted in the style of the finn.
Sect. 8. During the continuance of any partnership under the pro- Capital stock
visions of this chajiter, no part of the capita"! stock thereof shall be with- §?av^,''&""''"
drawn, nor any division of interest or profits be made, so as to reduce K. s. .S4, §8.
such capital stock below the sum stated in the certificates before men-
tioned ; and if at any time during the continuance or at the termination
of the partnership, the j)roperty or assets are not sufficient to pay the
paitnershiii debts, then the special j)artnei'S shall severally be held
responsible for all sums by them in any way received, withdrawn, or
divided, with interest thereon from the time when they were so with-
drawn, res])ectively.
Sect. 9. All suits respecting the business of .such partnership shall Suits to bp by
be prosecuted by and against the general jiartners only ; exce])t in those ""ne'lli"]"art-''^
cases in which i)rovision is made in this cha]iter that the special partners n*"", Lxi-.pt,
shall be deemed general jiartners, and that special partnershijis shall be k! s. 34, § ii.
deemed general partnersliips, in wliich eases all the partners deemed
general partners may join or be joined in sucli suits ; and excepting
also those eases where special partners are held severally responsible on
account of sums by them received or withdrawn from the common stock,
as before provided.
Sect. 10. No dissolution of a limited partnership shall take place. Dissolution,
except by operation of law, before the time specified in the certificate k°^s.''347§'i2".
before mentioned, unless a notice of such dissolution is recorded in the
registry in which the original certificate, or the certificate of renewal or
continuation of the ])artnership, was recorded, and in every other regis-
try where a copy of such certificates was recorded ; nor unless such
notice is also ])ublished for six successive weeks in some newspaper
)jrinted in the counties where the certificates of the formation of such
partnersliip were published according to the provisions of this chapter;
and if tliere is no such {taper at the time of such dissolution, then in
some newspaper printed in the city of Boston.
Sect. 11. In all cases not otherwise provided for in this chapter, the Liabiiitj-of
members of limited ])artnerships shall be subject to all the liabilities and oi'h'r'c'as"s.
entitled to all the rights of general partners. k- s. 34, § is.
CHAPTER 56.
OF THE UNAUTHORIZED USE OF TRADE MARKS AND N.-IMES.
Section
1. Trade marks of another not to be used with-
out consent.
2. Penalty.
38
Section
3. No person to tiso anotl)er*8 name in busi-
ness without written consent.
4. Supreme court may reBtroin such use.
298
TRADE MARKS AND NAMES.
[Chap. 56.
Trade marks of
aaother not to
be used without
consent, &c.
1869, 23-i, § 1.
Penalty.
1SS9, ai, § 2.
No person to
use another's
name in husi-
noss without
written con-
sent.
1853, 156, § 1.
S. J. C. may re-
strain such use.
1853, 197.
185:), 15U, § 2.
2 Gray, 379.
Section 1. When a person uses any peculiar name, letters, marks,
device, or iigures, cut, stamped, e:ist, or engraved ujjon, or in any man-
ner attached to or connected with any article manufactured or sold by
him to designate it as an article of a peculiar kind, character, or quality,
or as manutiicturcd by him, no other person, without his consent, shall use
the same or any similar names, letters, marks, devices, or tigures, for the
purpose of falsely representing any articles to have been manufactured
by, or to be of the same kind, character, or quality as that manufactured
or sold by, the person rightfully using such name, letters, mark, device,
or figure.
Sect. 2. Whoever violates the provisions of the preceding section,
or knowingly sells, or exjioses for sale, any article ha^ing any name,
letters, mark, device, or figure attached to or connected with it, in viola-
tion of the preceding section, shall be liable to any party aggrieved
thereby for all damages actually incurred, to be recovered in an action
of tort.
Sect. 3. No person carrying on business in this state shall assume
or continue to use in his business the name or names of any persons
formerly connected with him in partuershij), or of any other persons,
either alone or in connection with bis own or any other name or des-
ignation, without the consent in 'waiting of such person or his legal
representatives.
Sect. 4. The supreme judicial court may restrain by injunction
any use of trade marks or names in violation of the provisions of this
chapter.
TITLE XIY.
OF CORPORATIONS AND PROPRIETORS OF COMMON LANDS.
Chapter 57. — Of Banks and Banking.
Chapter 58. — Of Insurance Companies.
Chapter 59. — Of Loan and Fund Associations.
Chapter 60. — Of Manufacturing and other Corporations organized under Special
Charters.
Chapter 61. — Of Corporations organized under Oeneral Statutes.
Chapter 62. — Of Turnpike, Canal, and Bridge Corporations.
Chapter 63. — Of Railroad Corporations.
Chapter 64. — Of Telegraph Companies.
Chapter 63. — Of Aqueduct Corporations.
Chapter 66. — Of Agricultural and Horticultural Societies.
Chapter 67. — Of Proprietors of Wharves, General Fields, and Real Estate lying
in common.
Chapter 68. — Of the Powers, Duties, and Liabihties, of Corporations.
Chap 57.]
BANKS AND BANKING.
299
CHAPTER 57.
OF BANKS AND BANKING.
3.
5.
6.
8.
bank commissioners.
Section
1. Bank commissionerB established , tenure of
office.
2. Bhall be swom. 3Iay appoint clerk.
to visit banks, savings institutions, &c.,
once in two years. Powers and duties at
such visits. To make record.
to visit banks whose charters have been
annulled.
may summon and examine under oath all
directors, &c.
shall examine any bank upon request of
five or more officers.
to apply to S. J. C. for injunction, upon
ineolvcut banks.
to make annual report.
to report violation of laws, &c., to sec-
retary. Attorney-general to prosecute.
banks not to discount note of.
compensation.
B-VNKS ORGANIZED UNDER CHARTERS.
General Proinsions.
12. Banks subject to provisions of this chap-
ter.
13. name of, privileges, and liabilities.
14. where to be kept.
15. may receive deposits, &c., and divide prof-
its.
16. not to go into operation till one-half of
capital is paid in, &c.
17. Stock not to be sold until, &c.
18. No loan to stockholder, until, Ac.
19. Specie to be kept in bank. What to be
deemed such specie.
20. Increased capital, how paid in, <tc.
21. No person to own more than half the stock.
22. State may take stock in banks.
23. Limit of loans on its own stock.
2i. Banks not to hold their own stock, except,
&c. Penalty.
25. Limit of debts due to and from banks.
26. Preceding section, how construed.
27. Liability of directors, when debts exceed,
&c.
28. Absent, &c., directors, how exonerated.
29. Corporations to remain liable.
30. Banks shall not trade, &c.
31. Right of banks to hold real estate, limited.
.__to.
11.
Votes. Proxies.
34
Meetings.
Notices of meetings.
Votes allowed to each stockholder. Prox-
ies.
List of stockholders. Record of proxies.
Penalty.
35. Proxies, &c., form, execution, and filing
of.
3fi. for what time and meetings valid.
37. list of, &c.,to be read at meeting.
38. not to be received, &c., by salaried offi-
cers. Penalty.
39. Penalty on officers.
Directors.
40. Directors, number of.
41. to be citizens and residents of this state.
42. where to reside, &c. Exception.
Section
43. Directors to be chosen annually by stock-
holders. Time when chosen.
44. legislature may appoint.
45. may be removed.
46. quorum of.
47. to record notes, &c., offered for discounti
and proceedings, &c. Penalty.
48. Special meetings.
49. President.
50. Cashier, &c.
Cashier and Loans to Officers.
51. Cashier to give bond.
52. when to call special meetings.
53. not to be director, &c. Penalty.
54. Amount of liability of officers on notes,
&c., limited.
Bills and Xofes.
55. Banks to pay out no bills but their own.
56. Amount of hills to be issued. Loans, where
made.
57. Bills, how issued, and when corporation
liable t-o redeem.
58. Banks to pay altered bank-notes.
59. Penalty for delay in payment of notes.
60. Denominations of bank-notes that may be
issued. Penalty.
61. Banks may stamp, &c., counterfeit and
wortliless bills, &c.
62. Liability of banks, &c., for not 8tamping,&c.
63. Banks not to issue notes, &c., payable ou a
day certain, or with interest, excej)!, &c.
AVhat deposits may bear iuterest.
64. Bills to be first redeemed.
05. Banks may replevy bills unlawfully de-
tained.
(>6. Proceedings in such case.
Loans and Discounts.
67. Not«s not to be issued, to bo kept from cir-
culation.
68. Loans, &c.,payableon demand, Ac. Penaltyv
69. Banks not to take more tlian six per cent
interest, and exchange. Penalty.
70. All hills, &c., redeemable, in specie on de-
mand, at banking-house. Penalty.
71. Preceding section not to extend to certain
checks and dralts.
72. Banks may draw for balances.
Talcing Land, tfc, on Execution.
73. Real estate of banks may be sold on execu-
tion.
74. Officer may adjourn sale.
75. Lands mortgaged to banks may be seized
on execution, &c.
76. Cashier or clerk to furnish copies of notes,
&c., to officer levying, &c.
77. No transfer of such note or mortgage after
notice, &e., to be valid, except, &c.
Liability o/ Stockholders.
78. In ease of deficiency, &c., stockholders lia-
ble.
79. Liability of stockholders for redemption of
bills.
80. at expiration of charter.
81. Stockholders may compel contribution.
300
BANKS AND BANKING.
[Chap.
Sectiox
82. Corporations owning bank-stock, to bo un-
der same liabilities, &c., as individuals.
Loans to Commonuiefdth.
S3. Banks to loan to commouwealth.
84. When treasurer borrows, to g'ive notice to
banks.
85. Treasurer to apportion amount of loans re-
quired.
SG. Forleiture, if banks refuse to loan to treas-
urer.
87. Treasurer to institute suit for such refusal.
Taxes.
88. Statement of capital to be furnished treas-
urer.
89. Bank tax.
00. Kemedy when bank neglects to pay tax.
Weights to be sealed.
91. TTcights of banks to be proved every five
years.
92. No tender of gold valid, unless, &c.
Weekly and Monthly Returns.
93. TTcokly returns of banks in Boston.
94. Monthly returns of banks out of Boston,
and in South Boston.
95. Penalties for neglect under preceding sec-
tion.
90. Secretary to publish abstract of returns.
Bills to bo approved.
97. Blanks to be furnished.
Aniutal Returns.
08. Cashiers to make returns annually to secre-
tary. l''oi-ni Oi ruturu ; how authenticated.
99. Penalty for neglect.
100. Seex'etary to provide forms.
101. to prepare abstracts of the returns, &c.
Invest Igations.
102. Legislature may examine any bank by com-
mittee ; and declare its charter forfeited, in
ease, &c.
103. Penalty on officers of banks refusing to ex-
hibit books, &c.
104. One-eighth of the stockholders in number
or value, may choose a committee to make
an investigation, &c.
Annulling and Expiration of Charters.
105. Stockholders may annul charter. Not to
exempt from liability.
106. Banks exempt from further tax after com-
missioners certify, &c.
107. S. J. C. may limit time of liability of banks
surrendering charters.
IDS. When charter of bank expires, directors to
deliver plates and dies to court of record.
Penalty.
New Privileges.
109. New privileges extended to all banks.
BANKS ORGANIZED UNDER GENERAI- LAWS.
110. Ten or more persons may be a corporation
for banking purposes.
111. Amount of Ciipital stock, how paid in.
112. Certificate to be made and recorded.
113. May increase capital.
Section
114. Shall carry on business only at banking-
house. Forfeiture of privilege.
115. Auditor to obtain engraved bank-notes, Ac.
When dt'livered, to be countersigned, num-
bered, and registered.
116. to destroy bank notes, returned.
U7. Public stock to be transferred to auditor.
Exempt from taxation.
118. Stocks may be exchanged or surrendered.
119. Securities to be stamped.
120. Banks may circulate notes.
121. Proceedings when payment of bills refused.
122. Penalty on auditor countersigning too many
notes.
123. Plates, dies, &c., to be kept by auditor. Ex-
pense of, by whom paid.
124. Wliat bills banks may pay out.
125. Banks to receive interest, Ac, on public
stock pledged.
120. Bank to return stocks deposited.
127. Secretary to prepare separate abstracts.
Time of annual meeting.
128. Bank commissioners to examine stocks, &c.
129. When stock may be redeemed and returned
to bank.
130. Bank may thereafter be discharged upon six
years' notice.
131. Injunction may be had in certain cases.
132. When in hands of receivers, auditor to
transfer stocks, &c.
133. Preceding sections may be altered, and cor-
porations dissolved, &c.
134. Banks heretofore organized.
SAVINGS BANKS.
135. Savings banks to be governed by following
sections.
1.36. officers of.
137. to be sworn. Tenure of office. Treasurer
to give bond.
138. choice and appointment of officers.
139. Special meetings, how called.
140. Members, how elected, and how tliey may
withdraw.
141. Deposits may be received not exceeding,
&c.
142. how to be invested.
143. Investments restricted.
144. Same subject.
145. Same subject.
140. Investing ofllcers, &c., not to borrow, &c.
147. Dividends, how madej and deposits, how
withdrawn.
148. Savings banks, &c., to make annual returns.
Contents of.
149. Secretary to furnish forms and make ab-
stracts.
150. Returns by savings institutions to assesB-
ors.
151. to overseers of poor on request.
152. to assessors on request.
153. Penalty.
154. Money deposited in name of minors.
155. Legislature may make further regula-
tions, &c.
BANKS AND SAVINGS BANKS.
150. Banks, Ac, closing concerns, to make an-
nual report.
157. Penalty.
BANK COM:inSSIONERS.
Bankcommis- SECTION 1. There shall be a board of bank commissioners consisting
Bioners estab- ^f thr^e persoHS appointed and commissioned by the governor with
Chap. 57.] banks — commusioneks. 301
advice and consent of the council, and subject to removal in like man- lisiicd ; tcmu-o
ner. Before tlie tirst day of June in each year one member of the board "sa", iLv, § i.
shall be appointed for the term of three years, who shall hold his office
until his successor is a])pointed and qualified. Upon the occurrence of
a vacancy before the expiration of a term an a])pointment shall be made
for the remainder of the term. The commissioners now in office shall
hold their respective offices according to the tenor of their respective
commissions, unless removed as aforesaid.
Sect. 2. Before entering on the duties of their office the commis- Commissioncri
sioners shall severally be sworn. They may aj:)point a clerk of their ji'ay appohjT"'
board, prescribe his duties, and fix his compensation, when in their iicrk.
opinion the public good demands such ap])ointment. ' '»»''•
Sect. 8. Said commissioners, or two of them, shall visit every bank in tovieit banks,
[the] state within one year after it goes into operation, and every bank tfon8f&c.°o"ce
obtaining leave to increase its capital stock within one year after the iu two years,
additional stock is paid in; and shall visit every bank, savings bank, and du'tu-r'^^ ""'
institution for savings incoq^orated by authority of this state, once in j!^?"l!!-''f2'"'^'
every two years, and as much oftencr as they deem exjjedient ; visiting
as nearly as they are able one-half of all such institutions each year. At
such visits they shall have free access to the vaults, books, and pajiers,
and shall thoroughly inspect and examine all the affiiirs of each of said
corporations, and make such inquiries as may be necessary to ascertain
its condition, abiUty to fulfil all its engagements, and whether it has
com[)lied with the provisions of law. They shall preserve in a penna-
neut fonn a full record of their proceedings, including a statement of
the condition of each bank.
Sect. 4. When the charter of a bank has been annulled by an act of to visit banks
the legislature or by the suiTender of the stockholders, the commis- i7,!'v"*'been'wi-'^''
sioners shall, in the manner and with the powers and duties set forth nuUod.
in the preceding section, visit such bank once at least in every twelve I'^^j] ly] l\"/ ^'
months, so long as it continues a body corporate. i843, 93, §i.
Sect. 5. The commissioners or either of them may summon and may summon
examine all directors, officers, or agents, of any corporation mentioned SeroatiraU dt?
in section three, and such other witnesses as thev think iii'oper, in relation roctors, &c.
to the affiiirs, transactions, and condition, of such corjioration, and for ^'^'<'-'<i-^
that purpose may administer oaths; and whoever refuses without justi-
fiable cause to appear and testify when thereto so required, or obstructs
a connnissioner in the discharge of his duty, shall be punished by fine
not exceeding one thousand dollars, or imprisonment for a teim not
exceeding one year.
Sect. 6. If any five or more persons who are officers, stockholders, shall examine
or creditors, of any bank or institution for savings, make and sign a cer- Jequest of flve"
tificate, uniler oath, setting forth their interest and the reasons for making ormoreofflccrs.
such examination, directed to the commissioners, requesting them to ' i' !•'''' H-
examine such bank or institution for savings, the commissioners shall
proceed forthwith and make a full investigation of the affaLrs of such
corporation in the manner before provided.
Sect. 7. If, upon examination of any such coqjoration, a majority of to apply to .s.
the commissioners are of opinion that the same is insolvent, or that its fion'upon In""
condition is such as to render its further progress hazardous to the public soivcntbanks.
or those having funds in its custody, they shall apply, or if upon such 3 siet.'ssh'''
examination they are of oj^inion that such coqioration has exceeded its g j!''J']S'
])owers, or failed to comply with any of the rules, restrictions, or condi- 11 Met. 129.
tions, provided bylaw, they may apply to one of the justices of the ' Gray, 382.
supreme judicial court to issue an injunction to restrain such corjioration
in whole or in part fn)m further proceeding ^Yith. its business imtil a
hearing can be had. Such justice shall forthwith issue process for such
purpose, and, after a full hearing of the corporation, may dissolve or
modify the injunction or make the same perpetual, and make such orders
26
302
BANKS — GENERAL PROVISIONS.
[Chap. 57.
CommiBBioncrs
to make aumial
rL'iKH-t.
IN.JI, 1^7, §0.
Ifo,', W.
1S5S, ■!<).
to report vio-
lutiuu of laws,
A'C., to secreta-
ry-
Attorney-jj^en-
eral to prose-
cute.
Ibol, 127, §§0,10.
banks not to
discount note
of.
1851, 127, § 8.
compensation,
law, 148.
SeeCli. 15,§§36,
48.
and decrees, to suspend, restrain, or prohibit, the furtlier prosecution of
the business of the cor])oration, as may be needful in the premises accord-
ing to the course of proceedings in equity; and lie may ajipoint one or
more receivers or trustees to take possession of tlie property and etfects
of the corporation, subject to such rules and orders as may from time to
time be prescribed by the supreme judicial court or any justice thereof
in vacation.
Sect. 8. The commissioners shall annually, on or before the fifteenth
day of October, make a rejiort to the secretary of the commonwealth
of the general conduct and conditions of the corporations visited by
them, making such suggestions as they deem expedient. Such report
shall be printed and laid before the legislature at the next session thereof
Sect. 9. If in the opinion of the commissioners any such corporation
or its directors or cashier shall be found to have violated any law in
relation to banks and banking, tliey shall forthwith report the same to
the secretary with such remarks as they deem ex]iedient ; the secretary
shall notify the attorney-general thereot^ who shall forthwith institute a
prosecution for such violation, in behalf of the state.
Sect. 10. No bank shall discount a note or bill of exchange to which
a bank commissioner is a party either as principal, surety, indorser, or
otherwise.
Sect. 11. Each bank commissioner shall receive a salary of two
thousand dollars a year, and his traveUing expenses while in the per-
formance of the duties of his office.
Banks subject
to provisions of
tbis cbaptcr.
K. S. 30, § 1.
name of, priv-
ib'iics, and lia-
biliijes.
K. S. 3(i, § 2.
5 Mass. Ur, 9U.
where to bo
kept.
K. S. 30, § 34.
may receive
deposits, &c.,
and divide prof-
its.
It. S. 30, § 3.
10 Mass. Z-ri.
not to 2:0 into
operation till
one-lialf of capi-
tal ispaidin,tS:c.
K. S. 3U, § 4.
Stock not to be
sold until, &c.
K. S. 30, § 7.
Loans to stock-
holders.
R. S. 30, § 5.
Specie to be
kept in bank.
BANKS ORGANIZED TNDER CHARTERS.
General Provisions.
Sect. 12. Every bank incorporated by a charter under the authority
of this state shall be subject to the liabilities and go\'erned by the rules
and provisions contained in this chapter, excejit so far as they are not
apjilicable to such corporations.
Sect. 13. Each bank sliall be known by tlie corporate name of The
President, Directors, and Company, of the Bank, (this blank
to be filled with the name of the bank,) and shall, except when s])ecial
provision is otherwise made, be entitled to the powers and privileges
and subject to the liabilities specified in chaj)ter sixty-eight.
Sect. 14. Every bank shall be kejit in the city or town in which it
is established, and in such part thereof as is prescribed by its charter.
Sect. 15. Every bank may receive deposits, and may loan and nego-
tiate its moneys and eftects by discounting on banking prineijiles njion
such security as the stockholders shall deem expedient ; and dividends
of the profits may be made by the directors every six months.
Sect. 1G. No bank shall go into operation until one-half of its capital
stock has been paid in gold and silver money, and is in its vaults, and
until the money has been examined by three commissioners ap])oiiited
by the governor. Such commissioners shall, at the expense of the l)ank,
examine and count the money netually in the vaults, and ascertain by
the oaths of a majority of the directors that such money has been i)aid
in by the stockholders towards payment of their respective shares, and
not for any other puri)ose, and that it is intended that the same shall
remain therein as part of said capital ; and shall return a certificate
thereof to the go^ eruor.
Sect. 17. No part of the cajiital stock of a bank shall be sold or
transferred until the whole amount thereof is paid in.
Sect. 18. No loan shall be made to a stockholder until the full
amount of his shares is paid into the bank.
Sect. 10. Every bank shall keep in the bank an amount of sjiecie
equal to fifteen per cent, of its liability for cii'culatioii and deposits; and
Chap. 57.] banks — general provisions. 303
when by the returns required by sections ninety-three and ninety-four what to be
it npjiears that the weekly or monthly average of specie required thereby gp™,"'*' *""'''
to be returned by a bank is less than that amount, such bank shall make l^5l■|, 05, § i.
no new loans until its specie is restored to such amount. Specie s]iecially i]4s', irk
deposited by a bank in Boston in the bank of deposit of the Boston '•^'•'' -"*•
Clearing House, and balances payable on demand due from other banks
to banks out of Boston or in South Boston which may be applied to the
redem]ition of their bills, shall be deemed specie in the bank for tlic pur-
poses of this section.
Sect. 20. When authority is granted to a bank to increase its capi- increased capi-
tal, such increased capital may be paid in such instalments, not exceed- ^^'">«P!»d">.
ing four, as the directors determine; and each instalment shall be re- isso, 2C3.
garded as a part of the capital of the bank as soon as it is paid in and
a certificate thereof forwarded to the secretary of the commonwealth
according to the provisions of the act authorizing the increase.
Sect. 21. No person shall directly or indirectly hold or own more No person to
than one-half of the amount of the capital stock of a bank, exclusive of hainTe s'tock"
stock which he holds as collateral security. K- s. 3«, § le.
Sect. 22. In addition to the ca] lital stock to which a bank is entitled, stutc mav take
the state may subscribe thereto to an amount not exceeding fifty per ^"^'^30, j™]'^'
cent, of its authorized cajiital, when jirovision is made therefor by law;
and the state, from the time of making any jiayment towards such cajiital
stock, shall be entitled to its proportionate share of the profits and divi-
dends.
Sect. 2.3. 'No bank shall have owing to it at one time, on loans made Limit of loans
on a jiledge of its own stock, a greater amount than one-half of its capi- "{'ock'."'*"
tal actually paid in. u. s. 3C, §6.
Se( t. 24. A bank which purchases or holds its own stock except as Banks not to
security for debts, or neglects to sell all stock so received as security etock^'cxccpt"
within six months after it has become the jiroperty of the bank, shall in>, iiw, §-.
for each offence forfeit five hundred dollars. '
Sect. 2.5. The debts of a bank shall not at any time exceed twice Limit of debts,
the amount of its capital stock actually paid in, exclusive of sums due 4 pickfsil."'
on account of dejiosits not bearing interest ; nor shall there at any time
be due to a bank more than double the amount of its cajiital stock
actually paid in.
Sect. 26. Debts due from one bank to another, including bills of the Preceding: sec-
bank so indebted and loans to the state not exceeding five per cent, of 6tru«i.°^^ ""^
the cajiital stock of the bank, shall not be deemed debts due within the H.s.30, §10.
meaning of the jweceding section. " '''
Sect. 27. If a bank .shall become indebted beyond the amount al- Liability of di-
lowed by the two jireceding sections, the directors under whose admin- dcbtTekceed"
istration it shall happen shall be liable for the excess in their private *<^-
capacities ; and an action of contract may in such case be brought ibsa/sil
against them or any of them, their or any of their heirs, executoi's, or
administrators, by any creditor of the bank, or such creditor may have
a remedy by a suit in equity.
Sect. 28. Directors dissenting or absent when such excess of debts Absent, &c., di-
is authorized or contracted, may exonerate themselves from liability, by omSiU'd!''"'^^
forthwith giving notice of the fact and of their absence or dissent to J*. S- •}", § 12.
either of the bank commissioners. isiii ii;r.'
Sect. 29. The jjrovisions of the two preceding sections shall not be Corporations to
construed to exemj)t any bank, or the lands, goods, or chattels, of the k.°s'"jo,"§ 13!'
same, from liability for such excess.
Sect. 30. No bank shall use or emjiloy any of its moneys, goods. Banks shaU not
chattels, or effects, in trade or commerce ; but any bank may sell all l^^'sfi^j 14.
kinds of property held by it in pledge; and if the proceeds of such 7 Mass. 433.
sale are more than sufficient to rejjay the sum loaned on such jiledge,
together with interest and expenses, the surplus shall upon request be
304 BANKS — MEETINGS, VOTES, PROXIES. [ChAP. 57.
paid over by the bank to the person who conveyed the property in
pledge, or to liis assigns.
i:i.rht of hanks Sect. 31. Every bank may hold real estate requisite for the conven-
t!it[',iiinited.'^'' idt transaction of its business ; but such estate shall not, unless by vir-
li. s. 30, § 15. tue of special authority for that purpose, exceed twelve per cent, on the
amount of the capital stock, exclusive of what the bank may hold on
mortgage, receive on execution, or take as security for or iu payment of
debts.
Meetings, Votes, Proxies.
Notice of meet- Sect. 32. Written noticcs of the time and place of each meeting of
R^S 36 §§ ■" *'^^ stockholders of a bank, projierly directed to each stockholder, shall
28.^' ' ' be mailed by the cashier ten days at least before the meeting; and the
S?e'§ 39!' ^ "' directors shall give public notice of all meetings fourteen days previously
thereto in some news])aper published in the county, or, if there is no
such paper, in some ncwsjinjier published in the city of Boston.
Votes of stock- Sect. 33. Every Stockholder may vote according to the number of
Proxies shares he holds, in the following proportion : for one share one vote,
E. s. 30,' § 23. and for every two additional shares one vote more ; but no stockholder
1^"; als,^! 1! "' shrill Iiave more than ten votes. Absent stockholders may vote by
proxy, but no salaried officer of the bank shall vote as proxy. No
officer shall as proxy cast more than ten votes, and no person shall as
proxy cast more than fifty votes.
List of stock- Sect. 34. Each bank shall at least once in every six months prepare
Ke'rardof prox- ^ 1'**. of its Stockholders, with the amount of stock held by each ; and
ies. Penalty." shall provide a book in which all ])roxies filed under the following sec-
is5r,2-43,§§3,7. ^j^^ ^j^,^jj j^^ forthwith entei-ed, with the date of execution, acknowledg-
ment, and tiling, of the same, and the names of the stockholder and
proxy or attorney named therein, and such list, book, and proxies filed,
shall at all times be open to the inspection of every stockholder. A
bank tailing to comply with the jirovisions of this section shall for each
oflence forfeit a sum not exceeding five hundred dollars.
Proxies, &c., Sect. 3.5. Proxies and letters of attorney appointing an attorney or
tiou'tiud^iiu"- proxy to act at a meeting of the stockholders of a bank, shall have the
of. ' ° date of execution and tlie name of the proxy or attorney fully written
s?e'§3u?'^"' in ink, shall be attested by at least one witness and acknowledged be-
fore a justice of the jieace who is not an officer or director of said bank,
shall bear the date of their acknowledgment, and shall within ten days
from the date of acknowledgment anil three days at least before the
meeting referred to therein be filed with the cashier or bookkeeper of
the bank,
for what time Sect. 36. Proxies shall be valid for three months only from date,
vaii™'^''""^" and only for the meeting named therein and adjourinnents thereof; but
i«57,243, H- proxies for stockholderswho are citizens of this state and absent there-
See § 3u. iix-oxn, shall be valid if, three days at least before the meeting at which
the same is to be used, the attorney named therein files his affidavit that
his ]n-ineip.al has not since the date of the proxy been within the state,
list of, &c., to Sect. 37. Within three d.ays before any meeting of stockholders,
behead at meet- ^j^g directors shall prejiare a list of the proxies in force therefor, with
i.4f,s43, §5. the names of the stockholders and their respective attorneys or ])roxies;
See §39. which Ust sh.all be read at the meeting before proceeding to any other
business,
not to be re- Sect. 38. No Salaried officer of a bank shall ask for, receive, or be
Sarariedoffi-''^ the medium of transmission of, a proxy in a bank of which he is such
cers. Penalty, officer, except for the purpose of causing the same to be recorded as
s^'§3y!'^'' provided in section thirty-four; .and every officer violating the pro-
visions of this section shall in addition to the penalty provided in the
following section be disqualified from being an officer in such b.ink ;
and n]ion notice and satisfactory proof of the same, tlie directors of the
bank or bank commissioners shall forthwith remove him.
Chap. 57.] banks — directors, cashier and loans to officers. 305
Sect. 39. A cashier who violates any provisions of section thirty- Penalty on offi-
two, and any officer of a bank who viohites any provision of tlie four isj;;243, §;.
preceding sections, shall for each oifence forfeit a sum not exceeding
five hundred dollars.
Directors.
Sect. 40. N"© Isnnk shall have less than seven nor more than twelve Directors,
directors, the number to be determined by the by-laws. ^jie't'iol '''
Sect. 41. No person shall be a director of a bank unless he is a to be citizens,
stockholder holding unpledged stock therein and a citizen of and rcsi- f'i?,','^"'^""*
dent in the state, nor shall any person be a director in two banks at the it! s.'sn, § i?.
same time. i^'w, uig, § 6.
Sect. 42. A majority of the directors of every bank shall reside or where to re-
have their places of business within the county where the bank is f"'s'*"'s]g
established, or within ten miles of the bank. This and the two preced- isss, -im'.
ing sections shall not apply to the Bank of Mutual Redemption. J^o', V», 1 3!
Sect. 43. The directors shall be chosen annuallj' by ballot, at a to be cboBcn
meeting of the stockholders on any day in October designated in the xim"e"when
by-laws of the bank where there is but one bank in a city or town ; and ciiosen.
where there is more than one, on successive days, beginning on the isivs,' i«i, § 1"
first Monday of October in the order of the bank abstract for the year jji-'' "-J' § '"•
preceding, or in case of omissions in said abstract, in the order of the ^ • • •
dates of the charters of the banks so omitted, on days next succeeding
the meeting of the bank in the same city or town last named in said
abstract ; and said meeting shall be held at such hour and jjlace Antliin
the city or town as the directors a])point.
Sect. 44. In addition to the directors to be chosen by the stock- legislature
holders, the legislature may from time to time apjioint a number of di- k/s.^JH,"!'";!."
rectors in such ])rojiortion to the whole number as the sums paid by the
state towards the stock of the bank bear to the whole amount of the
stock actually paid in.
Sect. 45. Directors chosen by the stockholders may be removed at may be re-
any special meeting of the stockholders, the notification of which states ""rsc, § 24
that a change in the board of directors is contemplated; and vacancies isiw, 1%, § 2.
in the board may be filled at a special meeting.
Sect. 4G. A majority of the directors shall always be necessary to quonim of.
constitute a quorum for doing business. ^' *' ^''' ^^'"
Sect. 47. The directors of every bank shall cause a book to be kept to record
in which shall be entered all notes .ind bills offered them for discount, fe°«f'f*r''SB-'^
specifying all that are discounted ; they shall also keep a record of the count, &c.
names and proceedings of all the directors present at any meeting for isS, luo, § 9.
discounts or other official business; and every bank the directors of j^J'^il'^ls-S-
which fail to comjily with the provisions of this section shall for each
neglect forfeit five hundred dollars.
Sect. 4<S. They may call special meetings of the stockholders as special meet-
often as the interest of the coqjoration requires. e.^s. 36, §25.
Sect. 49. They shall choose one of their own number to act as President,
president, and may make him such compensation as they think reasonable. ' " '^^'
Sect. 50. They shall appoint a cashier, and may appoint clerks and Cashier, &c.
other officers for conducting the business of the bank; all of whom i'-S-36,§26.
shall be removable at the pleasure of the directors.
Cashier and Loans to Officers.
Sect. 51. The cashier before he enters on the duties of his office CasWer to give
shall give a bond or bonds, with two or more sureties to the satisfaction ^"''jf, j.jy^
of the directors, conditioned for the faithful performance of the duties of is'w, i*', §3.
his office ; and in no case shall bonds be taken for a less sum than iPickl^sn'
twenty thousand dollars.
26* 39
306
BANKS — BILLS AND NOTES.
[Chap. 57.
Cashier to call
special meet-
ings.
K. S. 36, § 28.
not to be di-
rector, .fee.
ISi-i, 19(), § 8.
1S«, 93, §§ 2, 8.
1851, 339, § 1.
Liability of offi-
cers on notes,
&c., limited.
1838, lUli, § li.
18.51, 33'J, § 1.
Sect. 52. He shall, on the application in writing of the proprietors
of one-fifth part of the capital stock, call special meetings of the stock-
holders.
Sect. 53. He shall not be a director of the bank of which he is
cashier, nor shall he or any officer under him be jierinitted to hire
money of such bank ; and every bank violating the pro\isions of this
section shall for each oft'enee forfeit five hundred dollars.
Sect. 54. Unless by a special vote passed at a meeting called by
written notification to the stockhoMers, giving notice of the proposed
vote, no officer of a bank shall be in any way liable to it upon notes,
checks, drafts, or other security, to an amount greater than eight per
cent, of its capital actually paid in, nor e.xceeding forty thousand dol-
lars ; nor its whole board of directors be so liable to an amount exceeding
thirty per cent, of its capital stock ; and such vote shall have no validity
after one year and thirty days from its passage, nor unless it states the
amount so authorized ; and every bank violating any ]irovision of this
section shall for each offence forfeit five hundred dollars.
Bank to pav out
its own bills.
1843, <.I3, § 11.
18.51, ■!ii7, § 12.
Amount of
bills.
Loans, where
made.
K. S. 36, § 8.
38S2, 2.36, § 2.
1868, Sa, § 2.
Bills, issue and
redemption.
II. a. 36, § .5.3.
17 Mass. 133.
19 Pick. 532.
Altered notes.
K. S. 36,§«.
Penalty for re-
fusal, &c., to
pav.
K. .S. .36, § 29.
8 Mass. 445-7.
S Pick. 101).
19 Pick. 5.32.
3 Met. 581.
Denomin.atious
of bank bills.
H. S. 3li, § 56.
1853, 392, § 1.
See Cb. 161, §20.
Banks may
stamp, &c.,
counterfeit and
worthless bills,
&c.
18.53, 378, §§ 1,2.
1857, 2:il,S§ 1,4.
Penalty for not
ptampinir, .fee.
. W53, 3'h,' § 3.
£iUs and N'otes.
Sect. 55. No bank shall pay out from its counter bills other than
its own.
Sect. 56. No bank .shall issue bills exceeding at any one time the
amount of capital stock actually paid in ; and no loan or discount shall
be made, nor shall any bUl or note be issued by such bank, or by any
person on its account, in any other place than at its banking house.
Sect. 57. All bills shall be issued in the name of the president,
directors, and company, of the bank issuing them, and shall be .signed
by the president .ind cashier ; but bills signed by either the president or
cashier and in circulation through the agency or neglect of any officer
of the bank, shall be redeemed by the corporation.
Sect. 58. Every bank shall be liable to p.ay to a bona fide holder the
original amount of any bill of such bank which is altered to a larger
amount in the course of its circulation.
Sect. 59. If the officers of a bank refuse or delay jjajiuent in gold
or silver money of any note or bill of such bank presented for payment
in their usual hours of business, such bank .sh.all be liable to pay to
the holder of such note or bill, as damages, at the rate of twenty-four
jier cent, a year for the time during which such pajiuent is delayed or
refused.
Sect. 60. Every bank may issue bills under five dollars to the
amount of one-quarter part of its capital actually paid in, and no more ;
but no bank shall issue, loan, or receive bank bills of any fractional
denomination, whether greater or less than one dollar ; and a liank
which so issues, lo.ans, or receives fractional bills, shall for each oft'enee
forfeit one hundred dollars.
Sect. 61. A bank which receives in jiayment, or upon deposit, or
for redemption from any other bank, or from any person, a couutei-feit
or uncurrent and worthless bank bill, or a bank bill ^^•hich has been
altered from its original denomination, or paper not a bank bill but
made in the similitude thereof, or paper puqiorting to l)e the liill of a
bank which never existed, shall write or stamp uj)on all such counter-
feit bills the word "Counterfeit," u]ion all such altered bills the word
"Altered," and upon all such other bills and papers the word " Worth-
less ; " adding thereto the name of the bank, and initials of the officer
by which the writing or stamp is made.
vSect. 62. Any bank neglecting or refusing to write upon or stamp
any bill or bills, as prescribed in the preceding section, shall forfeit and
pay the full amount of the bill or bills allowed to pass without being
Chap. 57.] banks — loans and discounts. 307
so ^\Titten upon or stamped. And if a bank or bank officer, by mistake
or inadvertence, and not fraudulently, so writes upon or stamps a bank
bill which is not a counterfeit, or altered, or worthless bill, such bank
shall be liable to ])ay to the holder its value on demand.
Sect. 63. No bank shall make or issue a note, bill, check, draft. Banks not to
acceptance, certilieate, or contract, in any form whatever, for the \>:iy- not'-'s''!v" '"'
ment of money at a future day certain, or with interest, exce])t for wiiat dcpnsits
money boiTowed of the state or of an institution for savings incor- tcr'st.'''"^ '"
porated under authority of the state, or money deposited by an jLo '^l"' ^ °''
assignee as provided in section forty-nine of chapter one hundred and 22 Pick. isi.
eighteen ; and excejit also that all debts due to one bank from another,
including bills of the bank i)idel)ted, maj' draw interest ; and banks
may contract with cities and towns in this commonwealth for tlie pay-
ment or receipt of interest, at a rate not exceeding that established by
law, upon an account current of money deposited with and drawn fi-om
them by said cities and towns.
Sect. 64. The property and effects of every bank shall be first nnis preferred.
applied to the redemption of its bills in circulation. ' ^''''''' *^-''
Sect. 65. A bank may, in like manner as in case of goods unlaw- nanks may re-
fully detained, cause to be replevied any of its bills or notes issued as j!j'^y*f;J|f''Jj'' """
currency, detained by the holder after it has paid or tendered to him tained.
the amount due thereon, together with any interest and costs accrued ; "***' ^'•^'S'-
if they are so secreted or withheld that they cannot be re])levied,
remedy may be had in equitv, as in ease of goods so secreted or with-
held. ■
Shct. 60. If upon the hearing it appears that the full amount of rroecedinijs in
]irincipal, interest, and costs has been paid or tendered to the de- i^y' iiq'''s o
fendant, the i)laintifi"'s damages for the detention shall lie assessed by
the jurj% or by the court ujion a hearing in equit}', and the jilaintiif
shall recover the same with his costs of suit, in which case the de-
fendant shall have judgment for any sum tendered and not received.
But if it appears that said bills and notes were withheld for any
amount due to the defendant beyond the amount paid or tendered, he
shall have judgment for the sum due at that time, and unpaid, with
interest and costs.
Loans and Discounts.
Sect. 07. A bank which loans or issues any of its notes or bills Bills not to be
Trith an agreement or understanding that such notes or bills shall not kept''from''cir-
be iiut into immediate unrestricted circulation, or tluit they shall not cuiation.
be returned to the bank within a limited time, shall forfeit a sum not sMetTsw. '
exceeding one-half nor less than one-fourth part of the amount so
loaned or issued.
Sect. 08. No bank shall directly or indirectly make a loan or dis- Loans, &c., pay-
count unless the amount of the loan or the proceeds of the disc'ount are ^ijje «" demand,
payable by the bank on demand in specie or in the bills of the bank; R.s.so, §5r.
and every loan or discount made contrary to the provisions of this sec- jn cusi'i. 22.'
tion shall be void; and the bank for each oftcnce shall forfeit live hun- e Gray, 45s.
dred dollars.
Sect. 69. No bank shall take a greater rate of interest or discount n.TOkanotto
on any note, draft, or security, than six per cent, a year; Init such tixp"r°cent."i!!-
iuterest or discount may be calculated and taken according to the t'-res^ and ex-
established rales of banking; and in discounting drafts, bills of ex- r. s.°36, §§ 50,
change, or notes of hand, tlie bank may in addition to such interest J*;^ ^^ ,^
charge the then existing rate of exchange between the place where 12 Pick. W.
such draft, bill, or note is discounted and the place where it is payable.
For every offence against the pro\isions of this section the bank offend-
ing shall forfeit five hundred dollars.
Sect. 70. Every bank which issues a bill, note, check, or drafl. Bills, &c.,whcn,
308
BANKS TAKING LAND, &.C., ON EXECUTION. [ChAP. 57.
whcro, anrl how
reiieoniable.
Peualty.
U. S. :ili, § ci.
15 Mass. -lo:j.
4 Pick. 3W.
Preceding sec-
tiou not to ex-
tend to certiiiu
clioeks and
drafts.
K. S. 36, § (52.
Banks may
draw for bal-
ances.
K. S. 30, § 63.
Real estate of
banks may be
sold on execu-
tion.
K. S. 30, § 30.
See Ch. 133, § 28.
Officer may ad-
journ sale.
It. S. -30, §51.
Lands mort-
*fag;ed to banks
may be seized
on execution,
&c.
li. S. 30, § 53.
Casliicr, Ac., to
liirnisU c<ipies
of notes, i.tc., to
officer, (fee.
K. S. 30, §53.
No transfer of
such note, &c.,
after notice, &c.,
to be valid, ex-
cept.
U. S. 30, § 54.
redeomnWe in niiy other niannor thnn by pn^^^e^t in specie on demand,
or payable at any place other than the ])laee where such bank is by law
established and ke])t, sliall be lial)le to pay the same in specie to the
holder thereof on demand at sai<l bank, witiioiit a jirevious demand at
the place where the same is on the tiice of such bill, note, check, or
draft, made payable ; and if the Ijank which issued the same neglects
or refuses so to pay on demand, it shall be liable to ])ay to the liolder
thereof two jier cent, a month damages so long as such neglect or
refusal continues.
Sect. 71. Nothing contained in the preceding section shall extend
to a check or draft drawn by the president or casliier of a bank within
this state, on any other bank either within or without the state, for a
sum exceeding one hundred dollars ; but all such checks or drafts shall
first be presented for payment at the bank on which the same are
drawn, and in default of payment the liolder shall be entitled to re-
cover against the bank which issued the same, the amoimt of such
check or draft, with additional damages of two per cent, a month on
the amount thereof from tlie time of such default.
Sect. 7-. Nothing contained in this chajiter shall restrain a bank
from drawing a check or draft for any balance due to it.
TaJiing Land, <&c., on Execution.
Sect. 7.3. The lands of a bank may be taken in execution and, sold
by public auction to the highest bidder ; and the officer levying such
execution, having first given notice of the time and place of sale at
least fourteen days previous thereto in two or more public places in
the city or town where such lands lie, and also in some news])a])er
printed in the county, and if there is no such paper, then in a news-
paper printed in the city of Boston, shall convey such lands to the
]iiirchaser, and such conveyance shall be effectual to transfer to the
purchaser all the estate and interest of the bank therein.
Sect. 74. The officer who levies such execution mny adiourn the
sale from time to time, not exceeding seven days at any one time,
until the sale is completed.
Sect. 7.5. All the right, title, claim, and interest of a Isank in lands
mortgaged for security of a debt due or assigned to such bank, may
be seizeil on execution and sold by ]iublic auction in the manner i)re-
scribed in the two preceding sections ; and any debt secured by such
mortgage and due to the bank at the time of the sale of the mortgage,
shall pass by deed of conveyance executed by the officer who levies
such writ of execution. The purchaser or his legal representatives,
may in his or their own name maintain any action ])ro]ier to recover
such debt or obtain possession of such lands which might have been
maintained in the name of the bank had no such sale been made, and
a co])y of such mortgage deed duly certified by the register of deeds
for the county or district where such lands are situate and where such
mortgage deed is recorded, shall be admissiljle evidence of the same.
Sect. 76. The cashier or clerk of such bank on reasonable request
shall furnish the officer serving such execution, or the judgment creditor,
with a certified cojiy of the note or obligation and the indorsement
thereon secured by such mortgage, together with a statement of all
payments made thereon by the debtor, and after the sale of such mort-
gage shall deliver said note or obligation to the jiurchaser.
Sect. 77. The officer making such seizure on execution shall if re-
quired by the creditor file a notice thereof in the registry of tleeds, and
give a like notice to the cashier or president or leave the same at the
banking house ; and no sale or transfer of such note, obligation, or mort-
gage, made by the bank after such notice, shall have any validity or
Chap. 57.] banks — liability of stockholdeks, loans to state. 309
effect against the purchaser under sucli sale, but the same shall be void
except only as between the bank and the person to whom a bank
makes such sale or transfer, his heirs, e.xt-cutors, administrators, or
assigns.
ZiiabiliUj of Stockholders.
Sect. 78. If a loss or deficiency of the cajiital stock in a bank arises in case of dca-
from the official mismanagement of the directors, the stockholders at Kt™So'kk-rs
the time of such mismanagement shall, in their individual cai)acities, Uai'ie.
be liable to pay the same; but no stockholder shall be liable to pay a auVck.'ua.'
sum exceeding the amount of the stock actually held by him at that ^ *'•''• ^^^
time.
Sect. 79. Stockholders in a bank at the time when it stops payment Liability of
shall be liable in their individual cnpaeitios, for the paj-ment and redemp- forrwk'mmLa
tion of all bills issued bv such bank and remainiiisr uniiaid, in proportion of iiiiia.
to the stock they respectively held at the time aforesaid; and stock- '-'Ss >-
holders, who, having reason to believe that a l)ank is al)out to sto]) ]iRy-
nient, transfer their shares, or any jiart thereof, with intent to avoid this
lial)ility, shall be subject to the same, on the shares so transfeiTed.
Sect. 80. Stockholders in a bank, at the time its charter expires, atcxpirntion
shall be liable, in their individual capacities, for the payment and re- "*'<'-!'-'','"!''i',-
denijition of all bills issued by such bank and remaining unpaid ; and iM!V:k%'§:). '
stockholders, who, having reasonable cause to believe such baid^ insol- jijl',!}*,',™"
vent, have transferred any of their stoi-k within six months before such i" Mit. wi.oco.
expiration, with intent to avoid this liability, shall be subject to the I~Gray,' Sii!
same on the shares so transferred.
Sect. 81. A stockholder of a bank who is ol)liged to pay any debt stockiioiders
or demand against said bank out of his individual jiroperty, may have a "u,'{{rib"!'ju,'
suit in ecpiity to recover the proportional jiaits of such .sums of money K. s. ac, §3a.
so paid from the other stockholders liable for the same, and such damages
and costs as the court may decree.
Sect. 82. A corj)oration being a stockholder in a bank, shall be liable Corporations
in its corporate capacity to pay any loss or deficiencj' of the capital stock ftock"to'b™un-
in such bank arising from the official mismanagement of its directors, rtirsame liabu-
and for the payment and redemption of all bills issued l)v said bank, iiividuuis."
and remaining unpaid when its charter cxjiires, or when it has stojijied li^n'o^I''/,*''
ji;iyinent, in the same manner as individual stockholders are liable in
thcii' inilividual capacities; and such corjioration may compel a contri-
bution from other stockholders in the manner prescribed in the pre-
cetling section.
Loans to Commonwealth.
Sect. 8-3. Upon requisition of the legislature each bank shall loan Hanks to loan
to the state a sum not exceeding five per cent, of its capital stock at ^"j."iti',""""'
any one time, reimbursable by five annual instalments or at any shorter U.S. 30, §35.
jieriod at the election of the state, with tlie annual payment of interest
.it rate not exceeding five per cent. ; but the state shall not be entitled
to demand of any bank loans which together at any one time exceed
one-tenth part of its capital.
Sect. 84. When the treasurer is authorized by an act or resolve of Treasurer to
the legislature to borrow money of a bank, he shall give notice in f^ks."'""^*"
writing to the president or cashier thereof^ of the amount to be furnished K- s. 30, § 36.
by such bank, and shall require a loan of the same conformably to the
jirovisions of this chapter; and thereupon the bank shall forthwith place
to tlie credit of the state the amount of the loan required.
Sect. 85. The treasurer in making demand upon the banks for such to apportion
loan shall equalize as far as shall be conveniently jiracticalile the amount ^^lirl^d"*^'"™'
f]f such demand among the several banks within the stiste, having refer- u. s. 30, §37.
euce to the amount of the obligation of each bank to loan to the state,
310
Forfeiture if
bauks refuse to
loan to treas-
urer.
K. S. 36, § 38.
Treasurer to in-
stitute suit tor
Kueli refus;tl.
K. S. M, § W.
.Statement of
capital to be fur-
nished treas-
urer.
K. S. .36, § 46.
Bank tax.
K. S. tf, §§l,-2.
U. S. 3li, § 45.
12 Mass. 25'J.
22 Pick. iro.
11 Met. 135.
Keuiedy for
neglect to pay
tax.
Jll. S. 9, § 3.
22 Pick. 176.
BANKS TAXES, WEIGHTS, RETURNS. [ChAP. 57.
ami to the amount previously borrowed of each bank umler antliority
thereof.
Sect. 86. If a bank neglects or refu.ses for the space of thirty days
after notice from the treasurer to ni.-ike such loan and to ]>l.Ke tlie
amount thereof to the credit of the state, such bank shall forfeit and'
pay into the state treasury at the rate of two per cent, a month nyiou
the amount so long as such refusal or neglect continues : provi(hd, tliat
the notice demanding such loan is a]iproved by the governor in writiu"-
and accompanied by an attested copy of such act or resolve.
Sect. 87. The treasurer, at the expiration of tliirty days after such
demand and after such neglect or refusal of a bank, shall institute an
action in the name of and for the use of the commonwealth ftgainst the
bank so neglecting or refusing, for the recovery of said penalty ; and
from month to month shall institute similar suits so long as such
neglect or refusal continues; and upon obtaining judgment and ex-
ecution he shall cause the amount thereof to be forthwith levied and
the judgment satisfied.
Taxes.
Seot. 88. Every bank shall, until all its ca]iital is paid in and reported
to the treasurer, furnish him on or bclbre the first Moiidays of Ajtril and
October after eacii payment of its capital, with a statement of the
amount of stock actually paid in by its stockholders, and the time when
the several instalments were paid.
Seit. 89. Every bank shall annually within ten days after the first
Monday of April and October, pay to the treasiu'er of the common-
wealth a tax of one-half of one per cent, ujion all its capital stock which
has been for six months actually jjaid in, and at the same rate for any
shorter time any of its capital has been so paid in.
Sect. 90. If a bank neglects to make such payment, the treasurer
shall forthwith commence an action of contract in the name of the
commonwealth for the recovery of the same with interest.
Weights of
liituks to be
proved every
live years.
It. S. 30, § 47.
No tender of
e()ld \alid, UU-
le»s, Ac.
II. a. 3U, § 4S.
Weights to be sealed.
Sect. 91. The directors of the several banks, once in five years,
shall have the weights used in their respective banks compared, proved,
and sealed, by the treasurer of the commonwealth or .some jierson
specially authorized by him for that purpose ; which shall supersede so
far as respects such banks the sealing of their weights by the city or
town sealer.
Sect. 92. No tender by a bank of gold weighed with weights other
than those compared, proved, and sealed, as required in the ])receding
section, shall be legal ; and the payer or receiver may also require that
the gold shall be weighed in each scale, and the mean weight resulting
therefrom shall be considered as the true weight.
Weekly
of bankg
tou.
1S5), 307
IW'l, !lj.
lS5.-i, (in.
See § 19,
Weekly and Monthly Heturns.
returns Sect. 93. Every bank doing business in Boston except in that por-
luBos- ^jgjj calleil South lioston shall on every Monday morning transmit to
'§§1.7- the secretary, according to a form to be furnished by him, a statement
§ 1. under the oath of the president or cashier of the amount of its capital
stock, the average amounts due to and from other banks, of de])osits,
circulation, loan.s, and discounts, specie actually in the bank, including
specie specially deposited in the bank of deposit of the Boston Clearing
House, which statement .shall be based upon the condition of the bank
on each day of the week next preceding said Monday.
Sect. 94. Every bank in South Boston and bank out of Boston shall
Chap. 57.] banks — annual returns. 311
on the first Monday of each month transmit to the secretary, according Monthly re-
to a form to be so furnished, a like statement, except tliat banks out of out"on{oi<™n?
Boston shall not include in their returns s])ecie de{)Osited in the bank of '^<^ '"> south
deposit of the Boston Clearing House, and all the banks mentioned in is64, 30'-, §§ 3, r.
this section shall state the balances payable on demand due from other j^^' Jl*- ^ .
banks, which may be applied to the redeni]ition of their bills ; which isosl 105.
returns shall be based upon the condition of the several banks on each s^^j^/g*'
Saturday since their ]ireceding return.
Sect. 95. Every bank in Boston except in that portion called South penalty for
Boston neglecting to comply with tlic requirements of section ninety- "^-''^iQi .j 2
three shall for each neglect forfeit five Inuidred dollars ; and every other
bank neglecting to comply with the requirements of the preceding sec-
tion shall, unless the secretary and treasurer are duly satisfied that said
returns were duly made, properly directed to the secretary and depos-
ited in the post ofiice where said bank is situated, and that there was no
neglect on the part of the officers of the bank, for each neglect forfeit
twenty-five dollars, and the secretary shall immediately notify such bank
of its neglect, and if such neglect continues ten days from said first Mon-
day of any month, the bank shall forfeit five hun<ired dollare.
Sect. 96. The secretary shall cause to be published in one or more Secretary to
of the Boston daily papers, an abstract of the returns of said banks in st'ract of"re-
Boston, on the Wednesday after the same are received, and a like turns, 4c.
abstract of the returns of other banks as soon as may be after the receipt i, 5.' ' ""'
of the same ; and he shall have regard to prices at which ofl'ers may be
jnade to make the required publication of such abstracts. All bills
therefor shall be a]>proved by the governor and council.
Sect. 97. The secretary shall transuut to each b;ink blank forms for niankstobe
the returns required by sections ninety-three and uinety-lbur, and the J^"vu;''i7
banks shall adopt said forms in making the returns.
Annual Meturns.
Sect. 9S. The cashier of each bank shall annu.ally make a return of csBhiers to
the state of such bank as it existed at seven o'clock in the at\enioon of make returns
("11 1* 1 1 1 11 ■ t ajmually.
any Saturday the governor may ihrect ; ami he sliall transmit the same u. s. sis, §§65,
as soon as may be, not exceeding fifteen days thereafter, to the secretary 'H^,- f^
of the commonwealth; which return shall sjiecify the amount due from iW-NW.
the bank, designating in distinct columns the several ]iarticulai-s included iSc^ba."
therein, and shall also specify the resources of the bank, designating in j'"'?.'!' '!5'55*'^■
distinct columns the several particulars included therein ; which return ' ~
shall be in substance as follows, to wit : —
State of Bank, on the Saturday of 18 , 1 clock, P . i[. Form of return.
DUE FROM THE BANK.
1. Capital .'itock. 2. Bills in circulation of denomination of five dollars and
upwards. 3. Bills in circulation of denomination less than five dollars. 4. Net
profits on hand. .5. Balances due to other banks. 6. Cash deposited, including all
sums wliatso'-'ver due from the bank, not bearinf; interest, its bills in circulation,
profits and balances due to other banks excepted. 7. Cash deposited bearing interest.
8. Total amount due from the bank.
RESOURCES OF THE BANK.
9. Gold, silver, and other coined metals in its banking house, including, in case of
Boston banks, specie in the bank of deposit of the Boston Clearing House. 10. Real
estate. 11. Bills of banks in this and of the other New England states. 12. Balances
due from otber hanks. 13. If the bank is in South Boston, or any place out of
Boston, state balances in any other bank to be applied to the redemption of bills, and
payable on demand. 14. Amount of all debts due, including notes, bills of exchange ,
and all stocks and funded debts of every description, excepting the balances due froiu
other banks. 1-5. Total amount of the resources of the bank. Rate, amount, and
date of dividends since la~t return. Amount of re=cr\'ed profits at the time of
declaring the last di-i-idend. Amount of debts due to the bank, secured by a pledge
of its stock. Amount of debts due and not paid, and considered doubtful. Amount
of liabilities of directors.
)12
BANKS — INVESTIGATIONS.
[Chap. 57.
Returns, how
authenticated.
Penalty for neg-
k'Ct.
U. S. 30, § 66.
Secretary to
provide lorms.
R. S. 30, § 6?.
to prepare ab-
stracts of the
returns, &e.
R. S. 36, § OS.
Such return shall be signed by the cashier of the bank, who shall make
oath before some justice of the peace to the truth of said return accord-
ing to his best knowledge and belief; and a majority of the directors of
each bank shall certify and make oath that the books of the bank indicate
the state of tacts so returned by the cashier, and that they have full con-
tidence in the truth of said return.
Sect. 99. Every bank neglecting to comply with the provisions of
the preceding section shall forfeit one hundred dollars for each day's
neglect, to be recovered by the treasurer of the commonwealth.
Sect. 100. The secretary of the commonwealth shall annually in the
month of March or April furnish four printed copies of the form of the
return required by section ninety-eight to the cashier of every bank.
Sect. lUl. The secretary shall as soon as may be after he has received
the annual returns from tiie several banks cause to be prepared and
printed a true abstract of the same, with each column added up ; and he
shall transmit by mail one copy to the cashier of each bank in the state,
and shall submit the same to the legislature at its next session.
Legislature
may examine
banks and de-
clare charters
forfeited.
K. S. 36, § -10.
9 Met. lUi.
Penalty on offi-
cers ot banks
for refusiu;^ to
exhibit books,
&c.
K. S. 36, §41.
One-cigfhth of
Btocklioldcrs
may chouse
committee to
investigate, &c.
1W3, 93, § 9.
Stockholders
may annul char-
ter.
[^Jtivestiffations.']
Sect. 102. Any committee, appointed by the legislature for the pur-
pose, may examine into the doings of any bank, and shall have free
access to its books and vaults. If upon such examination it appears,
and after a hearing of said bank thereon it is detennined l)y the legisla-
ture that said bank has exceeded its powers or foiled to comply with,
any of the rules, restrictions, and conditions, provided liy law, its charter
may be declared forfeited, and thereby shall be annulled.
Sect. 103. If any officer of a bank, or any other person ha^'ing
charge of the books and property of a bank, refuses or neglects to exhibit
them to such committee, or in any way obstructs the examination
thereof by the committee, he shall be deemed guilty of a misdemeanor
and punished by a fine not exceeding ten thousand dollars or imprison-
ment not exceeding three years.
Sect. 104. One-eighth of the stockholders in number or value in any
bank may when they consider it necessary choose a committee of their
own number to make an investigation of its concerns. If upon examina-
tion such committee are of o])inion that the bank is insolvent, or that its
condition is such as to render its further progress hazardous to the juib-
lic or to those having funds in its custodj-, or that the bank has exceeded
its jwwers or failed to comply with all the rules, restrictions, and condi-
tions, provided by law, they shall forthwith report the ficts in tlie case
to one of the justices of the supreme judicial couit. If upon inquiry
into the circumstances of the bank such justice considers it necessary, he
may issue an injunction to restrain such eor}ioratiou in wliole or in part
from further proceeding with its business until a hearing of the corpora-
tion can be had. He shall forthwith issue process for tliat ]mr])ose, and
after a full hearing of the corporation may dissolve or modify the injunc-
tion or make the same per]ietiial, and make such orders and decrees to
suspend, restrain, or prohibit, the further prosecuting of the business of
such cor]>oration as may be needful in the premises, according to the
course of ])roceedings in equity ; and he may ajipoint agents or receivers
to take possession of the property and effects of the corporation, suVjject
to such rules and orders as may from time to time be prescribed by the
supreme judicial court, or any justice thereof in vacation.
AnmiHhiff and Expiration of Charters.
Sect. 10-5. The stockholders of any bank, at a meeting called by a
written notice from the cashier, stating the time, place, and object, of
the meeting, sent to each stockholder thirty days at least before the
Chap. 57.] banks — new privileges ; uxdek general laws. 3l3
time of holding the same, and published in one or more newspapers Not to exempt
printed in the city or town, or if there is no such paper then in one or ',™" }os'i"|5Y,'2.
more uewspa])ers printed in the county where such bank is situated, for iwi, us, §§i,2,
three weeks before the time of such meeting, may, by a majority of the
votes all the stockholders' could cast if present, or, when the bank com-
missioners or a majority of them have so recommended, by a majority of
the votes cast at such meeting, suirender and thereby annul the charter
of such bank ; but such annulling shall not exempt the stockholders from
any liability imjiosed by this chapter or chapter sixty-eight.
Sect. 106. Every bank availing itself of the provisions of the pre- Banks exempt
ceding section shall be exem])t from the bank tax from the time a [ax'"whMl"&c.
majority of the bank commissioners report to the governor that such is3s, los, §2.
bank may with safety to tlie public close its concerns under the pi-o-
visions of section thirty-six of ehajjter sixty-eight.
Sect. 107. Any stockholder or creditor of a bank that has surren- s. j. c. may
dered its charter, may for the purpose of limiting the time l)C}ond which {j.XiitTof''^
its liabilities sliall be barred, ajjply by petition to the supreme judicial banks surren-
court, which shall liave as full power to fix such limitation as if the bank imTIo'i."'^'^"'
were before it by a creditors' bill in equity, or under chapter sixty-eight.
Sect. 108. Wiien the charter of a bank expires or is forfeited, or riates and dies
when a bank closes its business, the members of tlie board of directors {" court'^''wiien
last in ottice shall forthwith deliver up all their plates and dies to the 'lank charter
court of record having jurisiliction of the ofience of counterfeiting in ivmlity.
the county in which the bank lias been established, and tlie court shall isJ5, lus, §§ 2, 3.
cause them to be disposed of in such manner as shall be deemed expe-
dient in order to prevent their use for any unlawful purpose. A mem-
ber of the board who wilfully refuses or neglects so to do shall be
punished by a fine not exceeding five hundred dollars.
N&w Privileges.
Sect. 109. If new or greater privileges are granted to any bank New privileges
hereafter created by charter, every such bank in operation at the time banks'.''^'"" ""
of such grant shall be entitled to the same privileges, and subject to the k. s. 36, §69.
same liabilities.
BANKS ORGANIZED UNDER GENERAL LAWS.
Sect. 110. Ten or more persons and their successors may become a who may be a
body corporate for the purpose of carrying on the business of banking blmkiugpur- °'
on the terms and conditions prescribed in this chapter, and in all gen- I'oses.
II 1-1 * I- ■ e • *i • ' * 1 • 1 ,• ^ l^5l,20-,5§l,12.
era! laws which are at anytime in force in this state in relation to is32, aw, § i.
banks and banking, so far as they are not inconsistent with the follow- isou, 267.
ing sections.
Sect. 111. The capital stock of each bank thus established shall not Amount of eap-
be less than one hun Ireil thousand nor more than one million dollars, ""i',f5°^''' ^°''''
divided into shares of one hundred dollars each, transferable only at the i.'^5i,207, §§1,2.
banking house ami on the books of the bank. The stock shall be paid
in gold or silver money, one-half before the bank goes into operation
and the remain ler within one year thereafter; subject to which pro-
visions it shall be paid in such instalments and at such times as the
stockholders direct.
Sect. 112. Before a corjioration commences business, the president Certificate to bo
and directors shall under their hands and seals make a certificate, which ^af'^^if^'^s 3.
shall specify: —
First, the corporate name, which shall be different from that of any
bank previously organized or incorporated in this state ;
Second, the name of the city or town in which it is to be located;
Third, the amount and number of shares of its ca]iital stock ;
Fourth, the name, place of residence, and number of shares, of each
stockholder ;
27 40
314 BANKS UNDER GENERAL LAWS. [ChAP. 57.
Fifth, the time wlien it is to go into operation.
The eeitificntu shall be acknowledged before a justice of the peace
and recorded in the registry of deeds of the county or district in which
the bank is to be located, and a copy shall be filed in the office of the
secretary of the commonwealth. Copies of such certificate duly attested
by the register or secretary shall be admitted as sutiicieut evidence iu
all cases.
Mayiacrease Sect. 113. A bank SO organized may by a vote of three-fourths of
i^riw, § 4. ^^^ stockholders increase its capital stock upon proceedings similar to
those prescribed in the preceding section.
Shall carry on Sect. 114. Such bank shall carry on, at its banking house only, the
banS' iiolfsc' "*"•'! business of banking. If after receiving circulating notes as here-
Forfcitiire of inafter provided it neglects or omits to carry on such business, the neg-
?s5i,''liir'^'§ 5. ''^ct or omission shall work a forfeiture of its privilege, and it may be
proceeded against as provided in section one hundred and thirty-one.
Auditor to Ob- Sect. 115. The auditor of accounts shall cause to be engraved and
banyiiofeJ^'to pfi'ite'^ "1 the best manner to guard against counterfeiting, circulating
countiTsign, notcs in the similitude of bank-notes, in blank, of such denominations
registor. ^" as are allowed by law and in such quantities as he may from time to
1^1, anr, 1 0. time deem necessary. Before such notes are delivered to a bank they
'" ' ■ shall be numbered and registered in jiropcr books kejit for the jiurpose
in the office of the auditor, and countersigned by him, or under his
direction by some person by liim apjiointed, with the ajiproval of the
governor and subject to removal, of which appointment such public
notice shall be given as the governor requires.
to destroy Sect. 116. Any such bank may, at any time, return any portion of
turueci."''^' "^ its circulating notes to the auditor, who shall, forthwith, on receiving
the same, cause them to be destroyed in his presence, and in the pres-
ence of the president and cashier of the bank ; and a certificate thereof
shall be entered u])on the books of the auditor, and signed by said
auditor and said president and casliier.
to give notes Sect. 117. When such bank transfers to the auditor, at a rate not
recefpt^o't-lnib- -ibove its par value nor above its current market value, any public stock
lie stock, &c. issued by a city or town in this state, or by either of the New England
empt from'^tax- statcs, New York, or the United States, amounting, upon an equality
i83i"-'(- - ^'^ '^ stock of this state producing six per cent, a year, to not less than
issal Jso, § •-:• fifty thousand dollars, and not exceeding twenty-five ]ier cent, above its
capital stock, such bank sliall be entitled to receive from the auditor an
equal amount of circulating notes so countersigned and registered, and
stam])ed on their face, "secured by the pledge of public stocks;" and
such bank shall be exempt from taxation upon such jwrtion of its cap-
ital stock not exceeding three-fourths thereof so invested and trans-
ferred,
stocks may be Sect. 118. The circulating notes held by such bank shall at all times
surrcmfemiT ^^ sccured in full by public stocks as provided in the preceding section,
1S51, 207, §8. and shall never be less in amount than fifty thousand dollars ; subject
to which provisions the auditor may upon ajiplication of a bank sur-
ren<ler and transfer to it its de]iosited stock or any i)art thereof iu ex-
change for other stocks of the kind specified in said section, or for an
equal amount of circulating notes originally delivered to said bank, to
be by the auditor immediately cancelled.
Securities to bo Sect. 119. All securities held by the auditor under the provisions of
" ■""'"■' t]jiji chapter shall as soon as received, and in presence of the president
or cashier of such bank, be stamf)ed or branded with the following words,
to Avit : —
Commonwealth of MASSACnrsETTS.
Deposited in the auditor's office by (fill this space with the name of the bank
depositing the security) as security for its circulatinjz; notcs. Not to be withdrawn
■without the consent of the auditor indorsed hereon, and countersigned by the
treasurer.
stamped.
Chap. 57.] banks — under general laws. 315
And such securities, when witli'lrawn in eonformitv with the pro-
visions of this chapter, shall be indorseil with the words, " Withdrawn
by consent of the auditor ; " which consent shall be signed by the audi-
tor and countersigned by the treasurer.
Sect. 120. Such bank, after having executed and signed such circu- Banks may cir-
lating notes so as to make them notes pavable on demand at its bankincr ?!'-','*';'„"-.'''>'?,•,
house, may loan and circulate them as money sulyect to the laws and
usages of this state in regard to banking, and shall issue no other circu-
lating notes.
Sect. 121. If such bank after receiving such circulating notes refuses Procccriinja
or delays payment in gold and silver money of any such note issue<l by "•i"™ l"i.v"'™t
it and presented for jjayment in its usual hours of busines.<, it shall be JS5i, aor, §u.
liable to the penalty prescribed in section tifty-nine, and the holder
making such demand may cause the same to be jirotcsted. The auditor
on receiving and tiling in his otlice such protest shall I'orthwith give
notice in writing to the bank that issued such note; and if the bank
neglects or refuses to redeem it in gold or silver money for ten days
after such notice, he shall immediately, unless he is satisfied that there
is a good and legal defence against tlie payment thereof, give notice by
publication in two or more newspapers that all the circulating notes
issued by such bank will be redeemed out of the trust funds in his
hands for the purpose. He shall thereu|)on a]>|>ly such trust funds to
the payment, jjro rata, of all the circulating notes issued by such bank,
whether protested or not, and adopt such measures for the payment
thereof as will in his ojiiuion most eflectually prevent loss to the
holders.
Sect. 122. The auditor shall not countersign circulating notes for Penalty for
any bank to an amount in the anftrreijate exceedintr the public stocks ™""'<i'>*iy»i"S
deposited with him by such bank. If the auditor wilfully violates the is51,2b?, 511.
provisions of this section he shall be punished by tine not less than live
thousand dollars, or imprisonment not less than five years, or by both.
Sect. 123. The plates, dies, and materials, to be procured by the riateB,die8,&c.,
auditor for making such notes, shall remain in his custody and under <" '"j kept by
his direction; and each bank shall pay such portion of the expense kxptns'e of, by
thereof as may seem to the auditor just and reasonable. ri<;i'"i'","§'i3
Sect. 124. No such bank shall pay from its counter anv bills except what bills
its own and those of other banks of this state. " I's "i"! 'wr/ia"''
Sect. 125. The auditor shall make and deliver to every such bank Banks to re-'
powers of attorney to receive the interest and dividends at anytime «'ive the intcr-
'-, .1 11-11 '11.11 1 1*^ est, tvc, on pub-
due on the public stock deposited by it ; but he may revoke such powers lie stock
of attorney when in his judgment the jjublic safety requires it; and all 'li5i',11o7, § 9.
money received by hhn as interest or dividends shall be held in trust
for and on account of such bank.
Sect. 126. Every such bank shall, in addition to the returns required to makore-
of other banks, specify and describe the stocks which it has deposited depcrsited"""^'''
with the auditor. ipji,-;07, § is.
Sect. 127. The secretary shall prepare a separate abstract of the Abstracts of
returns of such banks. The annual meetings of the stockholders for the Time'^f aljiuai
choice of directors shall be held in confonnity thereto, agreeably to the meetin';.
provisions of section forty-three. ' itsi, -w, § i(i.
Sect. 128. The bank commissioners shall examine the certificates of Bank commis-
stocks held by the auditor and the amount of circulating notes issued to amfne^stock'"
any bank on account thereof, and if in their opinion such stocks have &c.
so depreciated in value as to make them unsafe tor the security dejiosited, ''^'' "''''' ^ "'
they shall require the bank to exchange such security or give additional
security to their satisfaction.
Sect. 129. When a bank has redeemed and returned to the auditor when stock
at least ninety per cent, of the bank notes which it has received, and may he re-
shall deposit in his name in such bank as he approves an amount of itl5r,^2Gr,°§ is"'''
316
SAVINGS BANKS.
[Chap. 57.
Bank may
thore:iftt-T be
dischurg:eii up-
on six years'
notice.
ISol, 26?, § 19.
Injunction may
be liarl in cer-
tain cases.
isol, 20r, § 20.
WTien in hands
of receivers, au-
ditor to trans-
fer stocks, &c.
1831, 20?, § 21.
Legislature
may alter or re-
peal, &e.
Remedi.'S not
impairc 1.
ISJl, 21!;, §23.
Banks hereto-
fore orgimized.
money equal to its unredcemefl cireulating notes, he may receive the
same and give up all the securities theretofore deposited bj' it.
Sect. 130. A bank which has complied with the provisions of the
preceding section may give notice for six years in any newspaper author-
ized to ])iiblisli the laws of the state, and also in at least one newspaper
published in the county where the bank is located, that all circulating
notes issued by such bank must be presented at the auditor's office within
six years from the first publication of such notice, and that at the ter-
mination of said six years the notes will not be redeemed. On proof
that such notice has been given the auditor shall pay over to the bank
any money in his hands ; and the bank shall not be longer held for the
redemption of its bills.
Sect. 131. When any justice of the su]ireme judicial court is satisfied,
fi'om the certificate of the auditor or otherwise, that any such bank is
insolvent, or that its condition is such as to render its further continuance
hazardous to the )niblic or to those having funds in its custody, or that
it has exceeded its powers, or has failed to comply with all the rules,
restrictions, and conditions, ])rovided !)y law, the same ] u'oceedings shall be
had in relation thereto as are provided in section one hundred and four.
Sect. 132. When a bank is placed in the charge of one or more
receivers or trustees by a justice of the supreme jndicial court, the
auditor shall transfer and \>a\ over to them all stocks or moneys held by
him as the jiroperty of such bank, to be by them applied to the redemp-
tion of its circulating notes.
Sect. 133. The legislature may at any time alter or repeal the twenty-
three preceding sections, and may by sjiccial act annul or dissolve any
corporation existing under the same; but the dissolution of such corpo-
ration shall not impair any remedy given against the same, its stock-
holders, or officers, for any liability previously incurred.
Sect. 134. The preceding sections shall a]iply to such banks as have
availed themselves of the provisions of chajitcr two hundred and sixty-
seven of the statutes of eighteen hundred and fifiy-one.
Savings banks
to be governed
by fouowiug
Bectioos.
K. S. 30, § ?1.
officers of.
E. S. 31), § r2.
to be sworn.
Teiuire of office.
Treasurer to
give bond.
It. S. 3(j, § rs.
Choice and ap-
poiutmcut of
officers.
B. s. ati, § r4.
SAVIXGS BAXKS.
Sect. 135. All savings banks or institutions for sa^^ngs incorporated
under the authority of this state, may exercise the powers and shall be
governed by the rules and be subject to the duties, liabilities, and pro-
visions, contained in the following sections, so far as the same are con-
sistent with the provisions of their respective charters.
Sect. 136. The officers of every such coqioration shall consist of a pres-
ident, treasurer, and such number of trustees or managers and other offi-
cers as may be found necessary for the ordinary management of its affairs.
Sect. 137. Such officers shall be sworn and sliall hold their several
offices until others are chosen and qualified in their stead ; and the treas-
urer shall give bond to the satisfaction of the managers or trustees for
the f lithful discharge of the duties of his office.
Sect. 138. The officers except the treasurer shall be chosen at the
annual meetings of such coqiorations, to be holden at such time as the
by-laws direct. The treasurer shall be ap]iointed by the managers or
trustees, and shall hold his office during their ]ileasure. If any office
becomes vacant during the year, the managers or trustees may a]>point a
person to fill the same until it is tilled at the next annual meeting. It
shall be the duty of the person acting as clerk at such meeting, to notify
all persons elected to any office, and to ascertain whether they accept
the same; and within ten days after to jiublish in some news])a]ier pub-
lisheil within the county, a list of all such jiersons as acce))t the offices
to which they are chosen. Any clerk neglecting to make such notifi-
cation nr sucli jiublic.-ition, or making a false publication, shall l)e liable
to a penalty of fifty dollars.
Chap. 57.] " savings banks. 317
Sect. 1.30. Such coqiorntions may at anytime linlil special meetinpjs Sp<>i-i:ii mcct-
by order of the trustees or managers ; and the treasurer shall also notify ",','(^.',1''""'
special meetings upon the requisition in writing of any ten members of li. s. ito, § 75.
the corporation. Notice of all meetings shall be given by public adver-
tisement in some newspaper of the county where the corporation is estab-
lished, or if there is no such paper, then in some newspaper of the city
of Boston.
Sect. 140. Every such corporation may at a legal meeting elect Members, how
by ballot any citizen of this state to be a member thereof; and any per- howThi.y nliy
son may at any annual meeting cease to be a member by filing a written witiidraw.^
notice of his intention so to do with the treasurer three months at least ' ''' '*' ' ''
before such meeting. No person shall continue to be a member after
removing from the state.
Sect. 141. Every .such corporation may receive on deposit for the Peporitsmny
use and benefit of the dejiositors all sums of money oft'ercd for that jmr- oxc'mim"'.tc'
pose; but it shall not hold at the same time more than one thousand li s. .iii,§Vr.
dollars of one depositor other than a religious or charitable.corporation.
Sect. 14'2. Such sums maybe invested on first mortgages of real how to be in-
estate situated in this state, or in the stock of any bank incorporated R/^sVio, §rs.
under the authority of this state, or in the public funds of this state, or i8<i>«-
in the public funds of any of the New England states or the United
States, or may be loaned to any city, county, or town, in this state, or
on notes with a pledge of any of the aforesaid securities as collateral.
Sect. 143. No such eor])oration shall liold, both by way of invest- investments re-
ment and as security for loans, more than one-half the capital stock of k™''!)!;' §78
any bank, nor have more than seventy-five per cent, of its deposits isi^«-'
invested in mortgages of real estate, nor invest more than ten per cent. ^^ '
thereof" and not to exceed one hundred thousand dollars, in the capital
stock of any corporation.
Sect. 144. S.avings banks may deposit on call in banks incorporated s.nme subject.
under the authority of this state, and receive interest for the same, sums
not to exceed seven per cent, of the amount deposited in said savings
banks.
Sect. 145. If the money held by any such corjwration cannot be Same snbject.
conveniently invested in any or all of the modes herein before pre- ''• ''• ^''' ^ ~^'
scribed, it may loan not exceeding one-half part of the amount thereof
on bonds or other personal securities, with at least two sureties: jsro-
vided, that the prinei})al and sureties shall all be citizens of this state
and resident therein.
Sect. 146. No member of a committee or officer of such coiiaoration inresting om-
charged with the duty of investing its funds, shall borrow or use any '"•'■s, &<!., not to
r , ^ , PIT. -,. , borrow, &c.
portion tliereot, be surety tor loans to others, or m any manner, directly R.s. .w, §so.
or indirectly, be an obligor for money borrowed of or loaned by the '*^'**'-
Coq)oration.
Sect. 147. The income or profit of all deposits, after a deduction of Dividends, how
all reasonable expenses incurred in the management thereof, shall be JJ™]}'^ ""ow'^'
divided among the depositors or their legal representatives, in just pro- witbiirnwu.
portion ; ordinary dividends shall be made every six months, and extra i85a,'iwJ,\5'i-3.
dividends at times fixed by the by-laws; but no dividend shall be
declared until the managers or trustees cause an examuiation to be
made, and find that the amount thereof has actually accrued, and no
dividend or interest shall be paid to a depositor unless authorized by a
vote of the trustees or managers; and the principal de])osits may be
withdrawn at such time or in such manner as the corjjoration in its by-
laws directs.
Sect. 148. The treasurer of every such corporation shall annually Savings banks,
make return of the condition thereof as it was at the close of business mtai*r'.uim'i'"'
on the last S.aturday of some preceding month, to be designated by the Contents of.'
governor ; which return shall be made to the secretary of the common- ^^^' *' ^ ^'
27*
318
SAVINGS BANKS.
[Chap. 57.
Form of re-
turn.
Secretary to
furnish forms,
i-c.
l.S4(J, 80, § 2.
Returns by
savinjjs institu-
tions to assess-
ors.
1S49, 110.
1851, 258, §§1,2.
1852, 312.
to OTerscers
of poor on re-
quest.
1852, 132, § 1.
to asBesKOrs
ou request.
1852, i:j2, § 2.
Penalty.
1852, 132, § 3.
Money depos-
ited iu uaiue of
minors.
1855, 3U1.
The iporjBl.ature
may make fur-
ther rejjula-
tions, &c.
R. S. 3G, § 8i.
wenlth within fifteen clays after an order to that effect ; anfl s.aid return
shall specify the following particulars, namely: place where located;
name of corporation ; number of depositors; amount of deposits; public
funds, stating amount of each; loans on public funds, stating amount on
each; invested in bank stock, stating amount in each; loans on bank
stock, stating amount on each ; deposits in banks bearing interest, stat-
ing amount in each ; loans on railroad stock, stating amount on each ;
invested in real estate; loans on mortgage of real estate; loans to
county or town; loans on personal security; cash on hand; rate and
amount of ordinary dividend for last year; average annual ])er cent, of
dividends for the years since the last extra dividend was de-
clared; annual expenses of the institution; all of which sliall be certi-
fied and sworn to by the treasurer. And five or more of the trustees
or managers of the coi-poration shall also certify and make oath that the
said return is correct according to their best knowledge and beUef.
Sect. 149. Blank forms of such returns shall be furnished to every
such corporation by the secretary ; and he shall j)repare suitable yearly
abstracts of such returns, and lay the same before the legislature.
Sect. 150. The treasurer of every such corporation shall annually
between the first and tenth days of May make return in person or by
mail to the assessors of each city and town in this state in which he has
reason to suppose such a depositor or borrower was resident on the firet
day of said month, of the names of all depositors so resident having de-
posits .amounting on said day to five hundred dollars and upwards, with
the amounts standing to the credit of each ; and the names of all l)or-
rowers u]ion collateral security of sh.ares of corporate stock so resident,
the numlier of shares, denomination, and par value, of such stock on said
day pledged by each. If he refuses or neglects to make such return, or
wilfully falsifies a return, he shall forfeit fifty dollars for each ofll-nce, to
the use of the city or town in which a dejiositor or borrower resided
whose name and amount was not truly returned, to be recovered in an
action of tort. *
Sect. 151. He shall, upon the written request of any overseer of the
poor of a city or town in this state signed by him, inform such over-
seer of the amount, if any, deposited in the institution of which he is
treasurer, to the credit of any person named in such request who ni.ay
be at the time a charge upon the state or any city or town therein as a
pauper.
Sect. 152. He shall upon the WTitten request of an assessor founded
upon the vote of his city or town, inform such assessor of the amount if
any exceeding two hundred dollars, deposited in the institution of which
he is treasurer, to the credit of any person who may be at the time of
such request a resident of such city or to%vn.
Sect. 153. If he unreasonably refuses to give the inform.ation re-
quired by eitlier of the two ju'eceding sections, or wilfully renders false
information, he shall forfeit fifty dollars for every such oflence, to the use
of the city or town upon which such pauper is a charge, or to the state,
if the pauper is a charge upon the state, or to the city or town of such
assessor.
Sect. 154. Money deposited in such a c-or]ioration in the name of a
minor, may at the discretion of the trustees or committee of investment
be paid to such minor or to the person making such deposit ; and the
same shall be a valid payment.
Sect. 155. The legislature may make other or further regulations
for the government of such coiiiorations, or take away their coi']iorate
powers ; and such corporations and their officers shall be subject to ex-
amination by a committee of the legislature in like manner and under
all the liabilities and penalties provided in this chapter with res])ect to
the examination of banking corporations.
Chap. 58.]
INSURANCE COMPANIES.
319
BANKS AND SAVINGS BANKS.
Sect. 156. Tlie directors of every bank authorized to settle and close Banks^Ac,
its concerns, the trustees of every savings bank and institution for sav- ^cprns.'to make
ings so authorized, and all receivers or trustees appointed to take pos- Ij^'gl/I''"'^^-
session of the property and eifeets of any bank, shall annually on tiie
second Wednesday of January make a report to the legislature, stating
under specific heads the liabilities and property of each corjwration, and
rendering a full account of theii* receipts, payments, and doings, in the
execution of their trusts.
Sect. 157. Directors, trustees, and receivers, neglecting to comply penalty.
with the provisions of the jireceding section, shall for each and every is*'. 3-, §2.
day's neglect severally forfeit twenty dollars, to be recovered by the
treasurer of the commonwealth who shall sue for the same ; but no pay-
ment of a forfeiture so incurred, or of ex]ienses resulting from such for-
feiture, shall be allowed as a charge against such bank or institution.
CHAPTER 58.
OF INSURANCE COMPANIES.
insurance c03imis8ioner3.
Section
1. InHurancc commissionGrs, appointment and
tenure of office.
2. to viKit ami examine insurance companies
on request, &c.
3. may examine books and agents of foreign
companies.
to calculate value of life policies.
may examine officers and other persons.
Penalty for refusinn; to testify.
phall apply for injunction in case of insol-
vency, &c. Injunction to issue; proceed-
ings thereon.
to furnish forms for returns.
to report violations of law to secretary.
Attorncy-gtMieral to prosecute, &c.
to keep record of their proceedings, &c.
to make annual report to legislature.
Contents of.
11. Salary.
4.
5.
6.
8.
10.
GENERAL PROVI.'ilONS.
12. General powers, &c., of uisurance compa-
nies.
1.3. First meeting, how called.
H. Companies to give notice of organization,
&c.
15. Call of meetings to specify, &c.
16. Companies may adopt by-laws. Not to
limit venue of actions or suit to less than
two years.
17. Secretary and treasurer to give bond.
18. Office in place specified in charter. In case
of agencies, cards, &c., to specify place.
19. liable to tax'itioii. To submit sworn
statement of affairs to legislature.
20. funds of, to be invested in corporate
name and separate classes.
21. Investing officers not to borrow.
22. Mortgjiges held by companies, liable to be
taken on execution.
Section
2.1. Companies not to trade, except.
24. to conduct business in corporate name
only. Term of policies.
2.5. to transmit to commissioners annual
statement of affairs.
26. penalty on, for neglect or making false
returns.
companies havino specific capitals.
27. Companies with specific capitals to choose
directors. Directors to accept in writing.
Quorum. Vacancies. Proxies. Kecord,
evidence of elections.
28. to choose president and secretary, who
shall be sworn. Duties of secretary.
39. Special meetings, how called.
30. Capital stock, how and when paid in. Poli-
cies not to issue, until, &c.
31. how invested and loimed. Liability of
directors upon loans.
32. Risks to be taken. Policies, how executed.
Limitation of risks.
33. On reduction of capital, risks to be re-
duced. Liability of president and directors.
Of stockholders.
34. Directors to make annual statement to
stockholders. Basis of dividends.
MUTUAL marine AND MUTUAL FIRE AND
MARINE COMPANIES.
35. Election of officers, &c. Form of agree-
ment. Wlien may issue policies.
36. Membership.
37. Subscriptions, how held, used, invested,
and cancelled.
38. Limitation of single risks. Reinsurance.
Liability of president and directors for
over -insurance.
39. Monthly statement.
40. Mutual marine companies having been in
operation at least one year, shall make
320
INSURANCE COMPANIES — COMMISSIONERS. [ChAP. 58.
Section
annual statement. Directors may declare
divideu'l of certjiin jier cent, on prfuiiuraa
and RuhsiM'iptious to safety I'uud, and issue
certirteates.
41. Six per cent, interest may be paid on cer-
tificates, and excess of profits applied to
redemption.
42. Debt due from persons entitled to certifi-
cate may be deducted.
MUTUAL AND STOCK AND MUTUAL FIRE COM-
PANIES.
43. Election of directors. Proxies.
44. Pi'csideut, secretary, and treasurer, cbo-
sen and sworn. Secretary to keep record.
45. Quorum of directors. Vacancies. Special
meetings.
4G. Choice of directors. Secretary to keep list
of stockholders of gfuarautee capital. Spe-
cial meetings.
47. Corporations may be represented in mutual
companies.
48. Assessments. Liability of directors.
411. Liability of treasurer.
60. When directors liable, creditors may sue.
Kemedy against corporation. Liability of
members.
51. Members to share profits or losses at expi-
ration of policy.
52. Policies limited in amount, and to create
lieu. Limitation, &c., to be set forth. En-
forcement of lien.
53. Directors to classify property insured.
Classes to be observed in policies 5 ex-
penses, assessments, and dividends.
64. Assessments and statements to bo re-
corded. Statements subject to inspection.
Separate statements. Limitation on as-
sessments.
55. Single risks limited.
66. Policies in mutual and stock and mutual
companies. Guarantee capital. Business
to be kept separate.
57. "Where may insure.
68. §250,000 to be subscribed before policy to
issue.
Section
5y. Trustees may assume liabilities, and create
liens, but not answerable as individuals.
LIFE INSURANCE COMPANIES.
00. When may go into operation. Choice
of directors. Dividends. Kedemptiou of
guarantee stock.
61. To pay portion to Massachusetts General
Hospital.
03. Policy for benefit of married woman to
whom to inure. By one person for bene-
fit of auother. To defraud creditors.
63. Treasurer to receive securities on deposit.
Income of such deposits.
04. Tax for valuation of policies.
05. Not to insure fire risks, &c.
FOREIGN COMPANIES.
No insurance by foreign stock companies
unless SI00,000 piiid in, &c.
by foreign mutual without $100,000 cash
and $100,000 deposit notes.
Foreign companies to appoint agent by
writing fi^lcd. Service upon agent to be
snfllicient.
Agent to give bond.
Taxes, &c., upou companies, &c., imposed
in other states, to be imposed here.
Foreign agents to deposit statement and
copy of charter of their companies, and
publish statement.
Contractc of agents not complying, valid,
but agent liable. Company not appointing
agent not to recover assessments.
Foreign agents to exliibit name of state on
sign, and print same and character of office
on policies, &c.
Persons not complying not to act as
agents. Penalty.
Companies chartered out of United States
to make returns.
Penalty on foreign agent neglecting to
make returns. Exception.
Penalty on agents insuring contrai'y to law.
'* Foreign " construed.
Forms for returns.
Insurance com-
missioners. Ap-
pointment, &c.
1855, 134, § 1.
1858, 177, § 1.
to visit and
examine insur-
ance compa-
nies on request,
&c.
1855, 134, § 5.
1858, 177, § 3.
SeeCh.50,
§§10,11.
mny examme
books and
ajjents of for-
eign companies.
1856, 352, § 53.
INSURANCE COMMISSIONERS.
Section 1. There shall be a board of insurance commissioners con-
.sistinoj of two persons appointed by the governor with the advice and
consent of the council for the term of three years, subject to removal
at their pleasure. The ]>resent members of the board shall hold tlieir
offices according to the tenor of their respective commissions unless
sooner removed.
Sect. ± The commissioners shall visit and examine any insurance
company incorporated in this state when requested in writing by five or
more persons, each of whom is a stockholder or creditor, or pecuniarily
interested in such comi)any ; and also whenever they deem an examina-
tion necessary. At such times they shall have free access to its books
and papers, and shall thoroughly inspect and examine all its aftnirs, and
make inquiries such as are necessary to ascertain its condition and
al>ilitv to fulfil its engagements, and whether it has complied with all
the provisions of law apjdicable to its transactions.
Sect. 3. They niay at any time require the agents of any foreign
insurance company to exhibit the books kept by them relating to such
agencies, and to make answer in Avriting and under oath to all rea-
sonable questions proposed by them, in order to elicit a full statement of
the business done for the company represented by such agent ; and any
Chap. 58.] insurance companies — general provisions. 321
agent refusing or neglecting for thirty days to answer sucli interrogato-
ries shall lie deemed not to have complied witli the provisions of the
laws of this state ; and if he continues to act as such agent, shall be lia-
ble to the penalty prescribed in section seventy-four.
Sect. 4. Upon some day in each year, designated by them, they commisBioncrs
shall calculate the existing value of all outstanding policies of life in- *'',''"'™';!;.'-'
,t ^ ■ -, . ,. ^ ',■ ■ ,. value of hie
surance in companies authorized to make insurance on lives in tins state, policies.
Sect. 5. They and each of them may summon and examine under i*^*'''"'?^.
oath, which they may administer, the directors, officers, and agents, of omlm'','&^"''
any insurance company, and such other persons as they think iiroper, •"''"■'".v for re
. '' , . , .,. ■ ' • T T . n 1 If' tusmy to testi-
in relation to the atiairs, transactions, and contlition, of such com]iany; fy.
and whoever without justifiable cause refuses to a]ipearand testify when "**''' ^~*'^^-
so required, or who obstructs a commissioner in the discharge of liis duty,
shall for each oftence be punished by a fine not exceeding one thousand
dollars, or by imjjrisonment not exceeding one year.
Sect. 6. If upon examination the commissioners are of opinion that Eimii apply
a company is insolvent, or that its condition is such as to render its ^s "oi'Susoi" ""
ftirther proceedings hazardous to the public or to those holding its poll- vi-ncy, &c.
cies, they shall apply to a justice of the sujireme judicial court to issue an ibS^iLHiTs
injunction restraining such company, in whole or in part, from further
proceeding with its business until after a full hearing c;in be had. Such
justice shall forthwith issue the injunction, and after a full hearing of all
parties interested may dissolve or modify the same or make it perpetual.
And he may make such orders and decrees as may be needful to sus-
pend, restrain, or prohibit, the further continuance of the business of
the company ; and m.ay appoint agents or receivers to take possession
of the jiroperty and eflPects of the comjiany, subject to such rules and
orders as are from time to time according to the course of proceedings
in equity prescribed by the court or a justice thereof in vacation.
Sect. 7. They shall annually in Se]itember furnish to the insurance tofumisu
companies in this state, and to the agents known to them of foreign in- [sas'^'iM, § lo.
surance companies doing business in this state, two or more printed imh, l-.vj, §8.
copies of the forms of returns to be made by them. > ' . s .
Sect. 8. When in their opinion an insurance company, its officers or to report vio-
agents, have violated any law of the state relative to such company, 'i'll'ITii' !?,?'■
they shall forthwith rejtort the facts with such statements and remarks emi to prose-
as they deem expedient to the secretary of the commonwealth, and he ixm,' iw, §§ o,
shall give notice of the same to the attorney-general, who shall at once i
prosecute said company, officer, or agent, therefor.
Sect. 9. They shall keep and preserve in a permanent form a full to keep record
record of their proceedings, including a concise statement of the condi- &cl^™™'' '"^'''
tion of each company visited or examined by them. i>^> 124, §3.
Sect. 10. They shall annually at the earliest practicable date after to make an-
the returns are received from the se\eral insurance companies, make a "onteut "oil *'''
report to the legislature of the general conduct and condition of the l^55, ia4, §9.
^- • -'r 1 V ii_ • ^1 • I » 1 i -it 1 1S5C), 262, §§8,
corporations visited by them since their last annual report, with such so.
suggestions as they deem expedient, and shall include therein an aggre- J^'f^J^s^j
gate of the calculated values of all outstanding policies of life insur-
ance ; and in connection therewith sliall ]ire]iare an abstract of all the
returns and statements made to them by insurance companies and
agents. Such report shall be printed on or before the first Wednesday
of January.
Sect. 11. They shall receive an annual salary of fifteen hundred Salary.
1 ,, , •' •' i.'ss, i7r, § 1.
dollars each. See cii. 15 § 36.
GENEKAL PROVISIONS.
Sect. 12. Insurance companies incorporated in this state may exer- insurance com.
cise the powers and shall be subject to the duties and liabiUties pro- p^ersf&c^'^*'
vided in tliis chapter so tar as consistent with their respective charters, isse, 252, § 1.
41
322 INSURANCE COMPANIES — GENERAL PROVISIONS. [ChaP. 58.
Companies, first Sect. 13. Tlie first meetinG; of such companies hereafter organized
raUed.'""'"'""^ sli^ll bP called by a notice signed by one or more of the persons named
1S56, 2o2,§2. in the act of incorporation, setting forth the time, place, and purposes,
of the meeting, which shall seven days at least before the meeting be
delivered to each member, or published in some newspaj)er of the
county in which the company is established, or if there is no such paper,
in some newspaper of an adjoining county,
to give notice Sect. 14. Every such com])any shall give notice in wi'iting to the
of organization, secretary of the commonwealth, of the acceptance of its charter and
1856, 252, §3. Organization under the same, within one year tl'om the date thereotj or
the same shall be void,
cau for meet- Sect. 15. All matters proposed to be acted upon at any meeting of
]lli,'av', §9 ^^^"^^^ companies shall be specified in the call for the same.
by-laws ; ve- Sect. 16. Such comjianics may adojit by-laws for conducting their
nue of acHoos ; business, not rcnufrnant to their respective charters or the laws of the
limitation of ' ' =^ i ,, , ' !• • • ■
suits. State, l)ut no sucli company shall by any condition, restriction, or sti]iu-
1830,252, §9. lation, in its by-laws or policies, designate the county in which any suiL
shall be brought against the com]iany, or limit the term of commencing
such suit to a less period than two years trom the time when the right
thereto acciiies.
secretary and Sect. 17. The Secretary and treasurer of such comjjanies shall give
^TO^iIomi!" bond in such sum as may be required Ijy the directors, for the faithful
1850, Hi, § 9. discharge, of their res])ective duties.
office for Sect. 18. Such companies shall have their office in the city or town
i'c^J'to'spedfy'' specified in their charter ; and when they establish agencies in other
loeation. _ citics or towns, all signs, cards, jiamjihlets, and advertisements, exhibited
(>a>-o->sa. or issued by them, shall specify the city or town where the company
they represent is located,
liable to tax- Seot. 19. Such companies shall be liable to be taxed by any general
uish'statements ^^'^^ taxing insurance companies ; and the directors shall when required
ofthuir affiurs. furnish to the legislature, or to a committee thereol^ or to the insurance
bo ,-j-, J-. commissioners, a statement of their affairs signed by the president and
secretary and sworn by them to be correct according to their Ijest
knowledge and belief and shall submit to an examination on oath con-
cerning the same.
funds of, how Sect. 20. Investments of the funds of an insurance company shall
iSo'ot252r/35.'^ ^^ made in its coi-porate name ; and funds of such companies as classify
then- risks, shall be kept and invested separately, so as to designate the
assets belonging to each class.
investing offi- Sect. 21. No memljer of a committee or officer of a mutual marine,
cersuotto bor- „^„^„.^j fj^g^ q^ mutual life, insurance comj>any, charged with the <luty of
1858,48. investing its funds, shall borrow the same, or be surety for such loans
to others, or directly or indirectly be liable for money borrowed of the
company,
mortgages Sect. 22. Mortgages on real estate, liehl by an insurance company,
taknn''6n™\ecu'^ shall be liable to be attached and taken and sold on execution, in the
**°°- .,.., J , manner provided in sections seventy-five, seventy-six, and seventy-
' "''' ' seven, of chapter fifty-seven, in respect to mortgages held by banks.
And the secretary shall perform the duties therein required of cashiers
and clerks,
not to trade, Sect. 23. No comjiany shall deal or trade in buying or selling goods,
iS6,''2:i2, § 4. wares, merchandise, or other like projterty, excepting such articles as have
been insured by such company, on which losses are claimed by the insured,
to conduct Sect. 24. Every insurance company doing business in this state
poratrname'^'"^ ^^^^ll conduct the Same in the proper and corporate name of said eom-
only;tcrmof pany, and not by various and difierent names; and the policies and
?M6,252,§§5, contracts of insurance issued by any coni)>any .shall be headed or enti-
^'- tied only by the cor])orate name or title of said company. No policy
shall be issued lor a term exceeding seven years.
Chap. 58.] insurance companies — with specific capital. 32
Sect. 25. Even- such company doing business in this state shall romp.-mios to
annually before the fifteenth day of November transmit to the insurance [T,,'w,V,',ssimwr;
commissioners a statement of its atiairs on the first day of said month, annual state-
in the form ajijiended to this chapter, adapted to the business done by i850,'252, §8.
such coiujiany, ^^■hich shall be signed and sworn to by the president
and secretarj'.
Sect. "26. Any company doing business in this state, neglecting to ponaity for
make the returns required under this chapter, shall forfeit one hundred nJ^flJSi!- fJSse
dollars for each day's neglect, and every company that wilfully makes ret";™?^
false statements shall be liable to a fine of not less than five hundred nor > ^'' 5 •
more than five thousand dollars.
COMPANIES HAVryG SPECIFIC CAPITAXS.
Sect. 27. Every insurance company with a specific capital shall with specific
annually choose by ballot from the stockholders of the coni])any resi- choice ^l-wt-
dent within this state, not less than five directoi-s, who shall hold office »'•''; directors
for one year and until others are chosen and qualified in their stead, writing; quo-
Such directors when elected and notified shall before thev are qualified rum; vacancies;
. ... * i» 1 proxies ; record
to act declare then' acceptance in writing to the secretary oi the com- evWenccofciec-
pany. Not less than four directors shall constitute a quorum; and all 1[!3"^352 su.
questions shall be decided by a majority of those present. Vacancies in
any office may be filled by the directors or by a meeting of stockhold-
ers called for the purpose. Each share shall be entitled to one vote.
Proxies may be authorized in writing. No officer shall vote as proxy,
and no stockholder shall either in jierson or by proxy cast more than
thirty votes. The record of the votes, whether cast in ))crson or by
proxy, made by the secretary or clerk of the company, shall be evidence
of all such elections.
Sect. 28. The directoi-s shall annually by ballot choose a president, to choose
secretary, and such other officers as tlie rules direct. The jiresident ^^i^rrt™/ ™ho
shall be chosen from the board of lUrectors. The president and secre- sii.aii be swom ;
tary shall annually be sworn. The presi<lent shall preside at all meetings tary.
of the stockholders and directors, but when absent a president yj/'o tern. i85o, 252, § 12.
may be chosen as the meeting determines. The secretary shall keep a ■
record of the votes of the stockholders and of. the directors; a list of
the stockholders and number of shares standing in the name of each ;
a record of all transfers of shares ; of all policies issued by the com-
pany, and of all assignments and transfers thereof; and such additional
books as the president and directors require.
Sect. 29. Special meetings of the stockholders may be called by the Special meet-
directors when they think proper; and they shall call such meetings on J.^t'd."'"
the written apjjlication of the owners of one-fifth part of the capital, or isso, 252, § 13.
of twenty stockholders, setting forth the pur])oses of the meeting.
Sect. 30. The capital stock, unless otherwise specially provided, shall capital stock,
be paid in cash within twelve months from the date of the charter. No ^'^^ ^"^ ^'^■^
certificates of full shares or policies shall be issued until the whole cap- ciesnottois-
ital is paid in ; nor shall any pohcy be issued until a certificate from the igj^ 252, '§ 14.
insurance commissioners has been obtained authorizing such company See §5 37, 50, co.
to issue policies. The insurance commissioners shall examine the cap-
ital, and a m.ajority of the directors shall make oath that the money has
been paid in by the stockholders towards payment of their respective
shares, and not for any other purpose, and that it is intended that the
same shall remain as the capital of the company, to be invested as
required by the provisions of this chapter.
Sect. 31. The capital stock shall be invested in the stocks of the how invested
United States, or of this state, or of any city or to^^^l in this state, or in ymy'or'iiirect'-
any of the banks thereof, or in any railroads thereof which are com- ore upon loans,
pleted and paid for and the franchises of which are not pledged or
324
INSURANCE COMPANIES MUTUAL MARINE AND FIRE. [ChAP. 58.
!S5'i, 232, 5 H.
yuu §§ 5li, iiu, m
Risks to be
tikwi.
ViUfi 's, how
l,i.nir:;tion of
riskti.
l^o i, 252, § 15.
See § 5ii.
Eisks to be re-
diice.l ou reduc-
tion ot'capitiil.
Liability of
jircsi loiit and
fUrt'ctors.
oi stockhold-
ers.
lS5li, 252, § 10.
Directors to
make annual
HtatfiinMit to
slockhoidcrs.
liasis of divi-
dends.
ISaO, 252, § 16.
mortgnged, or in bonds of railro.ad corporations in this state ; or it niiiy
be loaned on mortgages of real estate therein, or on pledges of any of
the stocks or bonds named in this section : provided, that no insurance
company shall own more than one-fourth of the eajiital of any one bank,
nor invest in nor loan on the stocks and bonds both included of any one
railroad com])anj', more than one-tenth of its own capital, nor in the
aggregate shall the investment in and loan on all railroad property
exceed one-fifth of its capital. Not more than half of its capital shall
be loaned on mortgage of real estate, and not more than one-tenth ])art
of the cajjital actually existing of any company shall be invested in a
single mortgage. If any investment or loan is made in a manner not
authorized by this chajjter, the directors making or authorizing the same
sh.all be personally liable to the stockholders for any loss occasioned
thereby ; but insurance co!n]ianies chartered by this state now doing
business, shall not be compelled to change any investment that was
originally legally made.
Sect. 32. Companies thus organized may insure vessels, freights,
goods, money, effects, and money lent on bottomry or respondentia,
against the perils of the sea and other perils usually insured against by
marine insurance ; and dwelling-houses and other buildings, merchan-
dise and other personal property, against loss by fire, according to their
respective charters. But no stock company shall hold, on any one risk,
a sum exceeding one-tenth ])art of the capital existing, and surplus, after
deducting all losses, claims, liabilities, .and debts due from the company.
All policies shall be signed by the president and secretary ; or in the
absence of the president by two directors, and in the absence of the
secretary by a secretary pro (em.
Sect. 33. When the capital shall have been reduced by losses or from
any other cause, the amount thereafter to be taken on any one risk shall
correspoiiilingly be reduced to the liinit.ation in the preceding section.
If the directors allow more to be insured on any one risk, they shall be
liable for a loss on any amount exceeding one-tenth the existing ca]iital.
If any company is under liability for losses actually sustained equal to
the capital, .and the president and directors knowing it make insurance
or assent thereto, they shall be personally liable for the loss if any under
such insurance. When the charter permits the cajiital stock to be paid
by instalments, if the capital is lessened by losses before all instalments
are paid in, each stockholder shall be liable for the instalments unpaid on
his shares at the time of such loss; and no dividend shall be made until
the cajiital is restored to its original amount.
Sect. 34. At each annual meeting the directors shall cause to be
furnished to the stockholders a statement of the condition of the com-
pany, and in making clitidends shall not consider any part of the ]ire-
mium money divisible until the risks for which the same was paid have
absolutely been terminated. But in making up their annual statement
they shall be required to charge the company only such portions of the
cash or notes received on policies which are unexpired, as would be
required to reinsure all outstanding risks.
Election of offi-
cers, &c.
Form of agree-
ment.
185(), 252, § 18.
See §§3?, 40.
MUTUAL, MARINE AND MUTUAL FIRE AND MARINE COMPANIES.
Sect. 35. Mutual marine and mutual fire and marine insurance com-
panies established by the laws of this state shall be subject to the pro-
visions of sections forty-three, forty-four, and forty-five, relating to
mutual fire insurance companies, and shall before commencing business
have an agreement substantially as follows, viz. : —
" The subscribers, members of the insurance company, sev-
erally agree to pay said company on demand the sums set against our
names, or such part thereof as may be called in for the use of the com-
pany, in money or promissory notes."
Chap. 58.] insurance companies — mutual marine and fire. 325
Policies of insurance may be issued by such company when two hun- wiicu policies
di-ed thousand dollars, if the company is in Boston, or one hundred '""' ^"^ '""'•■^•
tliousaud dollars, if the company is in anj- other city or town in the
state, has been sidjscribed and paid in cash or notes payable on time
not exceeding twelve months ; and the president and a majority of the
directors have certifieil that the subscribers are known to them, and they
believe them solvent and able to pay their subscrijitions ; and a copy of
the certificate has been deposited with the insurance commissioners and
approved by them. Subsequent subscriiitions shall bo made and certified
in like manner; and a like copy shall annually on or before the first day
of November be filed with the commissioners.
Sect. 36. Each subscriber during the term of his subsciiption, and Meniborsiiip.
each person insured, shall be a member of the company; but persona "^''' '■'■'-' s ' •
insured shall not remain members after the tennination of the risk aiid
the payment of the loss, if any thereon.
Sect. 37. The subsci-iptions provided for in section thirty-five sh: 11 SubscriptionB,
constitute a ]iermanent fund, to be used when necessai-)- for paymint < f ilJvJ!H'('i''i'i.'ai'<i''''
the losses and expenses of the company ; but shall not be applied to]i:y "".'-'S'-o's on
the premiums for insurance ettl-cted by the subscribers. The subscri]itioa
notes as they mature shall be jiaid in or other notes substituted therefor,
so that the amount of the original fund shall not be reduced. The sub-
scription notes or any pro rata portion thereof may be cancelled when-
ever the net profits of the business are sufficient to replace the same;
and such profits shall then be invested as prescribed in section thirty,
thereafter to be held as the pei-manent fund in place of said notes. All
payments made on subscri])tion notes and all cash funds not required for
the current uses of the company shall be invested in the same manner.
If any subscriber fails to pay his subsciiption, and it is proved that the
president or a director knowingly cei'tified falsely in regard to such
subscriber, the person certifying shall be liable to the company for such
sum as the subscriber fails to pay.
Sect. 38. No company shall hold on one risk more than ten per cent, itoitntinn of
of its subscriptions and invested funds, not pledged, and premium notes ({"^'r-un'.i'W'.
on risks absolutelv terminated, after deductino; therefi'om all losses and li^iiiiity o:
cfanns lor losses, or casli received lor risks not terminated, and .nft debts, dinrtors lor
Whenev.er by means of open policies or indorsements thereon more tlian "^^'"'^"'TSi^'
ten per cent, is so at risk, the directors shall as soon as may be obtain
reinsurance for tlie amount of such excess. If a companj' is at any time
liable for losses beyond the amount of its cash fund, legal investments,
premium notes received from risks terminated, and subscri])tion notes,
the president and directors, knowing the condition of the conijiany, shall
be personally liable for all losses occurring on insurance eflected during
such state of the company.
Sect. 39. The directors shall require the president to make a monthly Jiontiiiy state-
statement to them of the assets and liabilities of the company; which S'^jo^joo.
statement shall be entered upon theh' records or in a book kept for that
purpose.
Sect. 40. Mutual marine insurance companies incorjjoratod in this Muhmi marine
state which have been in operation not less than twelve months shall opSlonVJe
cause an annual dividend statement to be made up in each year, con- year, to make
taining a fair estimate of the net profits of the company not before di- m"nt" ** " ^
vided, taking into view the probable amount to be paid on all claims, J'J^.'^''*°'T. H'"?
outstanding risks, and demands, against the com]iany, and including d<nd on pr.mi-
expenses, interest, and allowances for jirevious deficiencies. After ascer- ""vipttoitsTo'
taining in this mode the net profits of the year on the risks terminated, eafcty fund, and
the directors may declare a dividend of such profits of a certain per J.atM.'^""*'
cent, on the )iremiums received for such terminated risks and the sub- iss^iisr, §i.
scriptions made to the safety fund in that year, and may issue certifi-
cates representing said dividend to the persons in whose names the
2S
326 INSURANCE COMPANIES — MUTUAL AND STOCK AND MUTUAL. [ChAP. 58.
Six per cent, in-
terest may be
paid on cortifi-
c:itea, and ex-
ct'Hs of profits
;ijii)licd to re-
di.'nii)tion.
ISJ-', 13r, §2.
Debt due from
persons entitled
to certificate
may be de-
ducted.
I85A I.'!?, § 3.
policies of insurance and subscriptions for the year in conformity to the
provisions of section thirty-five were originally made, or to tlieir legal
representatives. The certificates shall be transferable only on the books
of the company under regulations to be prescribed by the by-laws, shall
contain a provision declaring the same to be subject to future losses and
expenses of the company until they are redeemed as hereinafter ])ro-
vided, and subject to be reduced by the directors in case of losses and
expenses in .'iny subsequent year exceeding the estimated ])rofits of such
year. But such original certificate need not be issued for a less sum
than ten dollars. All such sums may be passed to the contingent ac-
counts of the company.
Sect. 41. Such companies may pay on the certificates issued in con-
formity with the preceding section, from the accrued income of their
invested funds, interest not exceeding six per cent, per annum ; .and
whenever the net ])rofits of any such company exceed the sum of two
hundred and fifty thousand dollars, the excess maybe applied from ye.ar
to ye.ar thereafter to the redeni]ition of the certificates of the previous
years in such manner as the directors determine ; but no certificates of
any year shall be redeemed while certificates of previous years remain
unredeemeil. When the accumulations of net profits of such company
exceed the sum of fi\e hundred thousand dollars, such excess shall be so
applied.
Sect. 42. When a person entitled to a certificate of profits is in-
debted to such com]iany for any sum past due, the company may
withhold the certificate and deduct such sum from the amount thereof,
and reduce or cancel the same; but persons holding policies of the com-
pany or entitled to certificates shall not be answerable by reason thereof,
or for any thing contained therein, except for the payment of their pre-
mium or other notes in advance for premiums.
Election of di-
rectors.
Proxies.
IKSf), 252, § 23.
See § 35.
President,
Mccretary, and
treasurer, elect-
cl and sworn.
Secretary to
iccep ret'iird.
ISSli, 2.5'.', § 2-t
See § oj.
Quorum of di-
rectors.
Vacancies.
Special meet-
ings.
li&i, 252, § 25.
Sec § 35.
MUTUAX AND STOCK AND MUTUAL FIEE COMPANIES.
Sect. 43. Every mutual fire insurance company shall .annually elect
by ballot not less than seven directors, citizens of this state, and, after
the first election, members of the company, who shall manage and con-
duct the business thereof Every person insured by the comp.iny shall
be a member, and no one member shall be allowed more than five votes
in person. Members m.ay vote by proxies dated and executed within
six months and returned and recorded on the books of the comjiany
three days previously to the meeting of the company at which the s.ame
are used ; but no person shall be allowed by proxy or otherwise to cast
more than twenty votes ; and no paid officer shall vote as proxy for any
absent member.
Sect. 44. The directors of every such company shall annually choose
by ballot one of their n\imber as president, a secretary and treasurer,
who shall annually bo sworn, and a record of the oath shall be entered
upon the books of the company. The secretary shall keep true records
of the meetings of the cor](oration and of the directors, and of all votes
passed by them ; and record a copy of all policies issued by such com-
pany, and all assignments or transfers of the same, when projicrly as-
sented to, which record shall be open to the inspection of any persons
interested therein.
Sect. 4.5. Not less than five directors shall constitute a quonim, and
all questions shall be decided by a majority of those present. Vacan-
cies in any office ma^ be filled by the directors until the next annual
election, or by a new election at a meeting called for that purpose.
Special meetings of the members may be called when ordered by the
directors, and the directors shall call such meetings when requested in
writing so to do by any twenty members.
Chap. 58.] insurance companies — mutual and stock and mutual. 327
Sect. 46. One-half of the directors of every mutual fire insurance Choice of di-
compaii y with a guarantee ca]>ital shall be chosen from the holders of ifjsVof'etock-
the guarantee stock, and the other half from the members of the mutual holders or g^uar-
department. The secretary shall keep a true list of stockholders of the be'kc'ptl^"* '"
guarantee capital, and of the number of shares held by each, and a rec- '^i;"'"' °"'^''
ord of the transfer of shares. Special meetings may be called by the isSr.,' m3, § 3?.
directors when they think proper, and shall be called by them upon the
written application of the owners of one-fifth of the guarantee stock, or
of twenty members of the mutual department, setting forth the pur-
poses of the meeting.
Sect. 47. The directors of every coi-poration which becomes a mem- Corporationn
ber of any mutual company may authoi-ize one or more of the stock- "witcd'^in'mu-
holders of such corporation to represent the same in all meetings of '"i'l oompaniua.
such company ; and such representatives shall vote and be eligible to ^''' -■'-' ^ -'^•
the oflice of director in the comjiany.
Sect. 48. When the just claims against a mutual fire insurance com- AsseBsmmtB.
pany exceed the funds, its directors shall assess such sums as may be ^'i'ull^g^ °^^'
necessary upon the members in ])ro])orti()n to their premium and deposit, }''■{'' -Ki § 2".
no member being liable to pay in addition to his premium and de])osit ' "•'5''-''*'-^<*-
more than a sum equ.al to his said premium and deposit; and in case of
classification of risks, said assessment shall be made ujion such premium
and dejiosit as were given upon hazards associated with the ]iro]jerty
upon which losses have occui'red. When suflicicnt property of the com-
pany cannot be found to satisfy an execution issued against it, and it
has pro]ierty belonging to the period assessed, the proceeds of which
can be a])plied to satisfy such execution, if the directors neglect to pay
the same, or neglect for thirty days after the rendition of judgment to
make an assessment and deUver the same to the treasurer for collection,
or to apjily such assessment when collected to the payment of the exe-
cution, they shall be personally liable for the amount of the execution.
Sect. 49. If the treasurer of a mutual company unreasonably neg- Liability of
lects to collect an assessment made by order of the directors and to ap- '''-''■"V.-S''", „»
ply trie same to the payment ot the claims lor which it was made, he
shall be liable in his private capacity to the party having such claims
for the amount of the assessment; and he may repay himself out of any
money afterwards received for the company on account of said assess-
ment.
Sect. .50. When the directors of a mutual company are liable to pay when directors
an execution against the comjiany, the creditor may recover the same lumwivao-ainst
by a suit in equity or by an action at law against the directors ; and coriioratioli.
any director who pays an execution against tiie company for which he m'™'A>'c7s.°
is personally liable, may have a suit at law with 'equitable remedies for 1800,252, §20.
contribution against any of the directors for their projiortion, and also a
suit at law with equitable remedies against the company or the individ-
ual members thereof who are liable therefor, for money so paid for them :
providedy that no member shall be liable to pay in addition to his jjre-
mium ami deposit more than a sum equal thereto.
Sect. .51. Every member of a mutual company shall .at the expiration Memhersto
of his policy have a share in the jirofits of the com])any during the time lo^fg^^texvi-'
his policy was in force in pro])ortioii to the sums by him paid on account ration of policy.
of said policy according to the contract or policy, atYer all expenses, lia- '^•'''' -'='-'*' "•
bilities, and losses then incurred have been deducted. And he shall in
like manner be subject to pay any assessments which may be laid by such
company for the payment of losses and expenses in accordance with its
charter and the laws regulating such companies.
Sect. 52. Xo policy shall be issued on the mutual jilan for a greater policies Umited
amount than three-fourths of the value of the property insured : and i" a'»";"it, and
,. , , , , ,, ^ T- •' , , to create ben.
every poucy made by such company shall create a hen on the personal Limitation, &c.,
property, and on any building insured and the land under the same, lor *° ^ "'' ^'"^^-
328
INSURANCE COMPANIES — MUTUAL AND STOCK AND MUTUAL. [ChaP. 58.
Enforcement of
lieu.
1866, 252, §31.
4 Met. 20l>.
10 Met. 211.
(i CuBh. 450.
Directors to
clasBily prop-
erty insured.
Cliisses to be
observed iu pol-
icie.s ; e.Kponsep,
assesBiueuts,
and dividends.
1860, 252, § 32.
Assessments
and statements
to be recorded.
Statements sub-
ject to inspec-
tion.
Separate state-
ments.
Limitation on
assessments.
1850, 232, §§ 32,
33.
Sing:Ie risks
limited.
1830, 252, § 34.
Policies in mu-
tual and stock
and mutual
companies.
Guarantee capi-
tal.
Business to he
kept separ.ate.
1S50, 252, § 30.
secuiinii; tlie payment of the depo.sit note, or other lialjilities, or ;iny sums
as.sessed upon the same: jjrovided, that the extent of the liability and
the intention of the company to rely upon the lien are set forth on the
face of the policy. Upon the alienation of the property to a botia fide
purchaser, the lien shall cease as to all losses which thereafter occur,
unless the policy is continued by consent of the purchaser and the com-
pany. If it becomes necessary to resort to such lien for the payment of
the liabilities secured thereby, the treasurer shall demand pajmeiit from
the insured and also from the tenant in possession, or the person ha\'ing
possession of the jiersonal jiroperty, setting forth in writing the sum due ;
and in case of non-payment the company may .sue and levy the execu-
tion upon the property or estate. The officer making the levy may sell
the whole or any part thereof by auction, and apply the proceeds in the
same manner, and the owner shall have the same right to redeem as in
the sale of an equity of redemption of real estate.
Sect. 53. The directors of mutual tire insurance companies may
diviile the property insured into not exceeding four classes. The policy
shall designate the class, and the asses.sments shall be made upon
premiums and deposits belonging to the class in which the loss occurs ;
but no policy shall be issued in a separate class, until five hundred thou-
sand dollars are subscribed to be insured in that class on one date, and
the same is entered on the books of the company. The expenses of the
comjiany not strictly applicable to either class, shall be apportioned to
each class according to the amount of premiums paid by that class for
the same period ; and in a division of the funds and returns of ])remiums
and de])osits, each member shall be entitled to receive his pro]ioition of
the ])rofits belonging to the class in which he was insured. No money
belonging to one class, received either as premium or assessment in said
class, shall be used to pay losses or expenses or other liability of any
other class.
Sect. 54. Mutual fire insurance companies, upon making an a.ssess-
meiit, shall keej) a record of the vote passed by the directors for making
the same, with a statement of the condition of the com])any at the time
such assessment is made. When an assessment is ordered, the whole
amount to be raised and the particular losses or other lialnlities of which
said amount consists shall be stated. The statement shall sejiarately
show the .amount of cash on hand, of deposit notes, and of liabilities sub-
ject to such assessment, and it shall be recorded in a book kept for that
purpose, and signed by the directors voting for such assessment. Com-
panies dividing their risks and insuring in separate classes shall make
such statement for each class in which an assessment is ordered. Any
member of the company may in.spect such statement and take a copy of
the same ; and a ])erson who is liable to assessment shall be considered
a member. No assessment shall be collected until such statement and
record are made, nor shall an assessment be laid on any member whose
policy has expired or been cancelled for the period of two years.
Sect. 55. No mutual fire insurance company shall eontnict for insur-
ance on any one risk for a greater amount than they intend to retain ;
nor with the view or intention of reinsuring any part thereof.
Sect. 5G. No mutual tire insurance company shall issue jiolicies on
any other than the mutual plan of insurance, excepting such companies
as have been chartered as stock and mutual com])anies ; and such com-
panies, if doing business in Boston, either directly or through agencies,
before issuing policies or transacting any business in the stock depart-
ment, shall have a guarantee cajiital of at least one hundred thousand
dollars ]iaid in and invested as required by sections thirty and thirty-one
exclusive of .stockholders' notes, (unless such notes are secured by mort-
gage or by pledges of stock or bonds, as provided in section thirty-one,)
and of all debts due from the company, and such projjortion of all pre-
Chap. 58.] insurance companies — ufe. 329
miuins received in cash for risks not terminated, as would be requisite
to reinsure the same. If doing business in any other city or town, the
sum of at least fifty thousand dollars shall be paid in and invested in like
manner, and be subject to like conditions and restrictions. All business
and investments on account of the stock department of such companies
shall be separately kept, and the returns to the insurance commissioners
respecting the same shall be according to the form marked A. The
business done on the mutual principle sh.all also be kept separate, and
returns made agreeably to the form marked C. Such combined com-
panies shall not take on any one risk in their stock department a sum
exceeding one-tenth of their capital stock ; and when the ca]iital stock
is reduced in any way, the amount thereafter to be taken on any one
risk shall forthwith be correspondingly reduced to the limitation in sec-
tion thirty-two, until the ca]:)ital is restored to its original amount.
Sect. 57. Mutu.al fire insurance companies incorporated in this state Where may in-
previously to the third day of July in the year eighteen hundred and i856,"252i§38.
fifty-six, may issue policies on any property included in the terms of
their charters, situated in the New England states and New York; but
such companies incorporated after that date shall not insure property
situated without the limits of this state.
Skct. 58. No policy shall be issued by a mutual fire insurance com- $250,000 to be
pany incorporated subsequently to the twenty-seventh day of Marcli in fore''po'iicy to^
the year eighteen hundred and fifty-eight, until the sum of two hundred ■''™''„.,
and fifty thousand dollars has been subscribed to be insured and entered isssj 150', §1.'
on the books of the company. The policies issued and the de])osit notes
given for said insurance, which notes shall not exceed double the amount
paid as cash premium, shall be of the same date.
Sect. 59. A person holding property in trust may effect insurance Trustees may
on such projierty in any mutual fire insurance company incor]iorated in "kl"'audcrcate
this state, and for that purpose may as such trustee assume the liabilities liens.
and create all the liens upon the property so insured which other persons '^->ss . .
on becoming members of such insurance companies assume and create.
He shall not be liable in his individual capacity ujjon such contract of
insurance.
LIFE INSURANCE COMPANIES.
Sect. 60. Before any mutual life insurance company goes into opera- wiien may ^o
tion, a guarantee capital of one humlred thousand dollars shall be ])aid 'i"',",'.',','„'s"'""''
in money and invested as required by sections thirty and thirty-one. Pivid.utis.
The subscribers or holders of guarantee stock in a mutual life insurance (.rnanrnt'ee'"'
company shall choose the first board of directors: at all subsequent ?'?';''•„ ,„
1 • * , 1 II 1 1 1 /. <^ 1 T •! » 1 • IboL), 252, § 40.
electums they shall choose one-hall 01 the directors until the redemption
of the guarantee stock, when the insured shall choose the directors.
The stockholders shall be entitled to such annual dividends not exceed-
ing seven per cent., as may be agreed u]ion at the time of subscribing
the capital, if the net surplus over a requisite reservation for liabilities
and contingencies is sufficient to pay the same ; and if less than the sum
originally agreed on, it shall be made equal to it when the profits of the
company are sufficient. One-quarter of the estimated surplus fund above
a sufficient fund to provide for risks, losses, expenses, and dividends,
shall be reserved to be appropriated to the redemjition of the guarantee
stock; and after the expiration often years from the organization, when
the amount reserved is sufficient and the insured so vote, the guarantee
stock may be redeemed. At the expiration of every five years the resi-
due of tlie estimated surplus fund maybe di\'ided among the assured in
proportion to the amount of premiums jiaid by them respectively on
account of the risk on their ])olicies for any part or the whole of the pre-
ceding five years : provided, that any policy on which the premium is
2S* 42
330
INSURANCE COMPANIES — FOREIGN.
[Chap. 58.
To pay to Mass
Geu. Hospital.
1823, 61, § 2.
1856, 232, § 41.
Policy for bene-
fit of married
woman to
wliom to inure.
By one person
for bL-nofit of
imotlier.
To defraud
creditors.
1S50, 352, § 42.
Treasurer to re-
ceive securities
on deposit. In
come of such
deposits.
185B, 252, § 43.
Tax for valua-
tion of policies.
To take no fire
risks, &c.
1830, 252, § 9.
No insurance
by foreij^^n
stock compa-
nies unless
$1011,001) paid
in, &c.
1850,252, §44.
by forei^m
mutual witliout
$10o,(Hi() casli
and SlllO,l)UOdiv
posit notes.
1851), 252, § 45.
5 Gray, GUI.
payable otherwise than by equal annual payments, shall not be entitled
to a larger dLstribution than if the premium had been so paid.
Sect. 61. Every company empowered to make insurance on lives
upon land shall be subject to the same obligations for the payment of a
certain share of the profits to the Massachusetts General Hospital as are
imjjosed on the Massachusetts Hospital Life Insurance Company.
Sect. 62. A policy of insurance on the life of any person, exjiressed
to be for the benefit of any married woman, whether procured by herself,
her husband, or any other jierson, shall inure to her separate use and
benefit and that of her children, independently of her husband or his
creditors, or the person eft'ecting the same or his creditors. A trustee
may be appointed by the party obtaining the policy, or if no such
appointment is made, then by the judge of the probate court for the
county in which the party for whose benefit said policy is made resides,
to hold the interest of the married woman in such policy or the proceeds
thereof. When a policy is effected by any person on his own life or on
the life of another, e.xpressed to be for the benefit of such other or his
representatives, or a third person, the person for whose benefit it was
made shall be entitled thereto against the creditors and the rejiresenta-
tives of the person eft'ecting the same. If the premium is paid by any
person with intent to defraud his creditors, an amount equal to the
premium so paid with interest thereon shall inure to the benefit of his
creditors.
Sect. 63. The treasurer of the commonwealth in his official ca-
pacity shall take and hold on deposit the securities of any insurance
company incorporated under the laws of this state which are deposited
by any sucli comjiany for the puipose of complying with the laws of any
other state in order to enable such comjiany to commence business in
such state. The company depositing such securities shall have the right
to receive the income thereof, and at any time to exchange the same
according to the laws of the states in which tliey may be doing business.
Sect. 64. Every insurance company doing business in this com-
monwealth shall annually ])ay into the treasury of the same, by the way
of compensation for the valuation of the policies, one cent on every thou-
sand dollars insured by them on lives.
Sect. 65. No life insurance company shall issue poUcies insuring
fire or marine risks.
FOREIGN COMPANIES.
Sect. 66. No foreign insurance comjiany with a specific cajiital sliall
by its agent in this state insure projierty therein or contract for insur-
ance with any residents in this state, unless its capital stock amounts to
one hunilred thousand dollars, all of which sum has been jiaid in cash and
invested, exclusive of stockholders' obligations of any descii]itii)n not
secured as required in section tiiirty-oiie and the debts of the company ;
nor unless the company is restricted by its charter or otherwise from
incurring any greater hazard in one risk than one-tenth of its unim-
paired capital, nor unless the company has complied with the provisions
of this chapter.
Se<t. 67. No foreign insurance company doing business ui)on the
mutual plan by their agent in this state sliall insure property therein or
contract for insurance with any resident thereof, unless said company
has one hundred thousand dollars in cash or available cash funds se-
curely invested, and at least one hundred thousand dollars in deposit
notes. And before foreign companies, whetlier doing business on the
stock or mutual plan, shall ]>y their agents transact any business in this
state, they shall satisfy the board of insurance commissioners tliat they
have the amount of funds recpiired by this chapter, and have coniidied
with all other provisions of the same.
Chap. 58.] ixsdrance companies — foreign. 331
Sect. 68. Every foreign insurance company before doing business in Foreign comim-
this state shall in writing a])])oiiit a citizen thereoti resident therein, a "onl'hj'writl'
general agent upon whom all la\\t'ul processes against the company may >">.' I'^'i-
be served with like effect as if the company existed in tins state ; and iij:™Mo"bc "uf-
said writing or power of attorney shall stipulate and agree on the part j^JJ"?;-.,
of the company making the same, that any lawful process against said
company which is served on said general agent, shall be of the same
legal force and validity as if served on said company. A copy of the
writing duly certitied and authenticated shall be filed in tlie office of the
insurance commissioners, and copies certified by them shall be sufficient
evidence. This agency shall be continued while any liability remains
outstanding against the company in this state, and the power shall not
be revoked until the same power is given to another and a like copy
filed as aforesaid. Service upon said agent shall be deemed sufficient
service u])on the jjrinciijal.
Sect. G9. The general agent shall before any insurance is made by Agonttogive
said company give a bond to the treasurer of the commonwealth with J'sio^'asa §4U.
one or more sm-eties to be apjiroved by him in the sum of two thousand
dollars, with condition that he will accept service of all lawful jiro-
ccsses against the company in the manner provided in this chapter.
Every agent of a foreign insurance company doing business in this state
shall before any business is done by him for said comjiany give a bond
to the treasurer with one or more sureties to be approved by him in the
sum of one thousand dollars, with conditions that he will on or before
the fifteenth day of November in each year make return on oath to the
treasurer of the amounts insured by him, the premiums received, and
assessments collected, during the year ending on the thirty-first day of
the October jireceding, and at the same time pay to the treasiu-er the
ta.xes provided in the following section.
Sect. 70. When, by the laws of any other state, any taxes, fines. Taxes, &c.,
penalties, deposits of money, or of securities, or other obligations or pro- "i[™4.e™f,n"
liibitions, are imposed upon insurance companies incorporated or organ- posed in otiiei-
ized under the laws of this state and transacting business in such other polfcdhcre'""
state, or upon the agents of such insurance companies, so long as such isae, 2S2, §4r.
laws continue in force, the same taxes, fines, penalties, deposits, and obli-
gations, shall be imposed upon all insurance companies doing business
in this state which are incoi-jjorated or organized under the laws of such
other state, and upon their agents. And insurance com] lanies transact-
ing business in this state whose charters or other ])owers aie derived
fi'om governments or authorities out of the United States, shall through
their agents in this state, in lieu of the relative taxes herein before in-
dicated, be subject to the payment annually of a tax of one ))er cent, on
all premiums and assessments collected by the agents of such com])anies.
Sect. 71. The general agent of every foreign insurance company rm-oign agents
shall before any insurance is made deposit with the insurance commis- mVnt'ami^opy''
sionei-s a copy of the charter of the comjjany, and a statement in the oniiniterot
form appended to this chapter adajited to the business done by such nics'andpub-
com])any, signed and sworn to by the president and secretary, and shall i'^g "^o*" T^'''
before the fifteenth day of November annually transmit to the insurance
connuissioners a statement in the form a]ipended to this chapter, signed
and swt)rn to by the pi-esident and secretary, made up to the thiity-first
day of October preceding, and shall ])ublish a copy thereof twice in two
different newspapers in each county in which the company has estab-
lished an agency, and three successive weeks in counties in which but
one newspaper is ]mblished.
Sect. 72. If insurance is made by a foreign insurance eomjiany ^\■ith- when conti-actB
out complying with the requisitions of this ch.-qiter, the contract shall a;'e,",','s'"j,'hii'.
be valid, but the agent making the insurance shall lie liable to the pen- Company witij-
alty provided in section seventy-four. And any such company which <>"*''!=''="''•'''
532
INSURANCE COMPANIES — FOREIGN,
[Chap. 58.
recover asscss-
ments.
IBoO, 252, § 49.
Forei^i agouts
to oxhibit liiime
of Htatcou Ki^^'ii,
and print s:imi.',
&c., ou policies,
&c.
ItaO, 352, § 50.
Persons not
complyin;^ not
to act us ay:euts.
Penalty.
1S6G, 252, § 61.
See §§ 3, 72.
Comp.anics
chartered out of
U. S. to make
returns.
1850, 252, § 8.
Penalty on for-
eign a^a-nt iie;^-
leetin^ to make
returns.
Exception.
Ib58, 49, § 1.
Penalty on
agents inwuring^
contrary to law.
1657, 25U, § 1.
"Foreign" con-
Btnied.
1866, 262, § 55.
neglects to appoint a general agent agreeably to tlie provisions of this
chapter, shall not recover any preiniuin or asse.ssment made by it on
any contract of insurance with a citizen of this state until the provisions
of this cha))ter are coni])lied with.
Sect. 73. Every jierson acting for an insurance company not incor-
porated in this state shall exliibit in conspicuous letters on the sign des-
ignating his j^lace of business, the name of the state under whose
authority the company he rejiresents has been incorporated. And said
company and agent .shall also have printed in large type the name of
such state and the kind of office, whether chartered as a mutual or stock
company, upon all jiolicies issued to citizens of this state, on all cards,
placards, and ])amphlets, and in all advertisements published, issueil, or
circulated, in this state, by them or hiui, relating to the business of such
company.
Sect. 74. No person shall act as agent of an insurance company not
incorporated in this state until he has complied witli all the reipiire-
ments of the laws of this state relating to such companies and their
agents ; and every person so acting without such compliance, or who
knowingly procures payment or any obligation for the payment of any
premium for insurance, by fraudulent representations, shall be punished
by fine not exceeding one thousand tlollars for each oifence.
Sect. 75. Insurance com])anies chartered beyond the limits of the
United States and doing business in this state, shall make return of
their standing on the first day of June in each year agreeably to the
form required of companies doing a .similar business in this state, said
returns to be made to the insurance commissioners on or before the fif-
teenth day of November annually, and verilied and sworn to before
some consul or vice-consul of the United States, by two or more of the
principal officers of such insurance company.
Sect. 70. Every agent of a foreign insurance comjiany neglecting to
make the returns required by this chapter, shall forfeit twenty-five dol-
lars for each neglect, to be recovered by the treasurer of the common-
wealth. Every agent so neglecting shall be immediately notified thereof
by the treasurer; and if he continues said neglect for ten days after such
notice is deposited in the post-office, he shall forfeit five hundred dollars
for every such neglect, to be recovered by the treasurer: provided^ that
no agent shall be held liable if it is made to apjjear to the satisfaction of
the treasurer that the returns were duly maile and <Ic]iosited by said
agent in the post-office, properly directed to the insurance commissioners,
and that there was no neglect on his part.
Sect. 77. An agent making insurance in violation of any law of this
state regulating insurance coni])anies, shall forfeit for each offence a sum
not exceeding one thousand dollars ; and the governor and council may
allow such reasonable compensation for services rendered and expenses
incurred in enforcing the laws relating to insurance companies as they
deem proper.
Sect. 78. The word foreign useil in this chapter applies to all com-
panies not incorporated by the legislature of this commonwealth.
FOEMS.
Forms for re-
turns.
185r,, 252.
1859, 146.
A.
Form of Return for Insurance Companies with Specific Capitals.
1. State the name of the company. 2. Where located. 3. When incorporated.
4. Amount of capital. 5. Amount of capital actually paid in. 6. Number of shares
and par value of each. 7. Amount of fire ri.^ks out>tanding. 8. Amount of marine
risks outstanding. 9. Total amount of outstanding risks. 10. Amount of United
States stock or treasury notes owned by the company ; state amount of each kind,
and par value and market value of each. 11. Amount of state stocks ; state amount
of each kind, and par value and market value of each. 12. Amount of bank stocks ;
Chap. 58.] insurance companies — returns. . 3.3,
state amount of each kind, and par value and market value of each. 1.3. Amount of I'orms for re-
railroad stocks ; state amount of each kind, and par value and market V(duo of each, turne.
14. Amount of railroad bonds ; state amount of each kind, and par value and market
value of each. 15. Ca.^h value of real estate owned by the company. IG. Amount
of cash on hand. 17. Amount of cash in hands of agents. 18. Amount loaned on
mortgage of real estate. 19. Amount loaned on collateral. 20. Amount loaned
without collateral. 21. Amount of all other investments. 22. Amount of premium
notes on risks terminated. 23. Amount of borrowed money, specifying collaterals
given for the same. 24. Amount of losses due and unpaid. 2.5. Amount of losses
claimed and unpaid. 26. Amount of losses reported, upon which the liability of the
conipiiny is not determined. 27. Amount of all other claims against the company.
28. Amount of cash received for premiums on tire risks. 29. Amount of cash
received for premiums on marine risks. 30. Amount of notes received for premiums on
fire risks. 31. Amount of notes received for premiums on marine risks. 32. Amount
of cash received for interest. 33. Amount of income received from all other sources.
34. Amount of tire losses paid last year. 3.5. Amount of marine losses paid last
year. 36. Amount of dividends paid the last year. 37. Amount paid for expenses
of office. 38. Amount of other expenditures. 39. Amount received in cash for fire
risks not terminated. 40. Amount required to reinsure all outstanding risks.
41. Amount of premium notes on risks not terminated. 42. Amount of delinquent
notes not charged to profit and loss. 43. Highest rate of interest received. 44. High-
est rate of interest paid on money borrowed. 45. How many shares of the capital
stock are pledged to the company. 46. Balance to credit of profit and loss account.
47. Balance to debit of profit and loss account. 48. How many shares of the capital
stock are owned by the company, or not subscribed for. 49. What amount of the
capital consists of the stockholders' notes.
B.
Form of Return for Mutual Marine, and Mutual Fire and Marine Insurance Companies.
1. Name or title of the company. 2. Where located. 3. When incorporated.
4. For what period. 5. Amount invested in United States funded debt, with the
amount of each kind owned ; state par value and market value, per share. 6. Amount
of United States treasury notes owned ; state par value and market value, per share.
7. Amount invested in state stocks, with the amount of each kind owned ; state par
value and market value, per share. 8. Number of shares owned in each bank which
are not pledged ; state par value and market value, per share. 9. Number of shares
owned in each railroad ; amount invested in each, at cost on books ; state par value
and market value, per share. 10. Amount received in railroad bonds, and amount of
each kind at cost on books ; state par value and market value, per share. 11. Amount
invested in real estate, as it stands on the books of the company. 12. State specifi-
cally all other investments or property. 13. Cash on hand and in bank. 14. Cash
in hands of agents, 15. Amount loaned on mortgage of real estate. 16. Amount
loaned on notes secured by collaterals of personal property. 17. Amount loaned on
notes without collateral security. 18. Amount of stock notes on hand not overdue.
19. Amount of stock notes on hand that are past due. 20. Amount of premium
notes on risks terminated. 21. Amount of premium notes on risks not terminated.
22. Amount of delinquent premium notes not charged to profit and loss. 23. Amount
of scrip issued for profits which remains outstanding. 24. Amount of debts due the
company other than those before enumerated ; state particularly their respective
amounts and origin. 25. Amount of marine risks not terminated. 26. Amount of
fire risks not terminated. 27. Amount received in cash for fire risks not terminated.
28. State the highest rate of interest received. 29. Amount received for interest.
30. State the highest rate of interest paid for money borrowed. 31. Amount paid for
interest. 32. State the amount borrowed which remains unpaid, and state particu-
larly the collateral given for each loan. 33. Amount of fire losses paid the past year.
34. Amount of marine losses paid the past year. 35. Amount of losses ascertained
and unpaid. 36. Amount of losses claimed other than those ascertained and impaid.
37. Amount of expenses, taxes, and commissions, paid the past year.
C.
Form of Return for Mutual Fire Insurance Companies.
1. Name of the company. 2. Where located. 3. \\Tien incorporated. 4. Date
of commencement of business. 5. Amount insured by existing policies, in each
class. 6. Amount of premiums and deposits on the same, in each class. 7. Amount
of premiums and deposits received in cash, in each class. 8. Number of shares in
each bank ; state par value and market value, per share. 9. Number of shares in
each railroad ; state par value and market value, per share. 10. Amount of bonds
of each railroad ; state par v.alue and market value, per share. 11. Amount invested
in real estate, at cost, on the books of the company. 12. State in full all other
investments. 13. Are any of the assets or securities of the company pledged for
liabilities of the company? if yea, state particularly what. 14. Cash on hand and in
334
LOAN AND FUND ASSOCIATIONS.
[Chap. 59,
Forms for re-
turns.
bank. 15. Cash in hands of agents. 16. Amount of losses paid in each class the
last year. 17. Amount assessed on notes in each class the past year. 18. Amount
assessed beyond the amount of notes in each class. 19. Amount of liabilities of tlie
assured to further assessments in addition to the amount already assessed in each
class. 20. Amount of assessments past due and not paid in each class. 21. Amount
of policies terminated in each class the past year. 22. Amount of policies issued in
each class the last year. 23. Amount of cash received for such policies in each class
the last year. 24. Amount of premiums received in notes for the same in each class the
last year. 25. Amount of losses ascertained and unpaid in each class. 26. Amount
of losses claimed, other than those ascertained and unpaid. 27. Amount of cash
dividends paid to policy holders in each class the last year. 28. Amount of assess-
ments beyond tlie notes received in each class the last year. 29. Amount owed
for money borrowed, and on what securities. 30. Highest rate of interest paid.
31. Highest rate of interest received. 32. Amount received for interest. 33. Amount
insured on real estate. 34. Amount insured on personal property. 35. Amount of
delinquent notes not charged to profit and loss account. 36. Amount paid for
e.tpenses, taxes, and commissions, the last year. 37. What proportion of the property
insured is in Massachusetts. 38. What proportion of the losses occurred on property
situated in Massachusetts.
Form of Return for Life Insurance Companies.
1. Name of the company. 2. AVlien chartered. 3. For what period. 4. AATiere
located. 5. State in full the assets of the company. 6. Number of shares owned in
each bank ; state par value and market value, per share. 7. Number of shares owned
in each railroad, stating the corporate name of each, and amount invested in each, at
cost, on books ; state par value and market value, per share. 8. Amount owned in
railroad bonds ; state par value and market value, per share. 9. Amount invested in
real estate, at cost, on the books of the company. 10. Amount loaned on mortgages
of real estate. 11. Amount loaned on notes secured by collaterals of personal prop-
erty. 12. Amount loaned on notes without collaterals. 13. State in full all other
investments. 14. Amount due to the company which is overdue and in arrears; are
any such included in the above statements of assets and investments, and if so, to
what amount ? what part, if any, is due on account of risks actually tei-minated by
the company ? 15. Number, date, and amount, of each outstanding policy not here-
tofore returned, and age of the insured. 16. Number, date, and amount, of each
policy which has within the year ceased to be in force, how terminated, what has been
paid to the legal holder of the policy, and age of the insured. 17. Amount of losses
ascertained and unpaid. 18. Amount of losses claimed against the company, whether
acknowledged as due or not by the company. 19. Amount due from the company on
its declared, promised, or acknowledged indebtedness or other claims, including
dividends, bonuses on distribution of surplus, or as profits. 20. Amount received
for premiums the past year. 21. Amount received for premiums in cash. 22. Amount
received for premiums in promissory notes or securities. 23. Amount received for
interest the past year. 24. Amount paid for interest the past year. 25. Amount of
guarantee funds ; and state particularly whether the same are in cash or subscription
notes. 26. How are dividends, distributions of surplus funds, bonuses or estimated
profits paid, whether in cash, scrip, or otherwise on credit, and whether on demand,
or if on credit, for what length of time, and whether payable at a specific time or
indefinitely at the discretion of the company. 27. Amount paid for cipenses, taxes,
and commissions, the past year.
CHAPTER 59.
OF LOAN AND FUND ASSOCIATIONS.
Sectiojj
1. Associations incorporated, to continue
2. titio of; shares. Ky-laws to be filed with
secretary, A-c.
3. to make loans on real estate, ^c.
4. Payments of principal. Cliarj^e for mem-
bersliip, he.
5. Statement of condition to be published and
filed in secretary's office*
Section
6. Member interested not to vote.
7. Bond, wlien eanc<lli'd.
8. Termination of corporation.
9. P^quity jurisdiction of S. J. C.
10. Insurance commissioners to visit, «tc.
11. to report condition of corporation to le-
f^ifllature ; violation, &o., to attorney-gen-
eral.
Chap. 59.] loan and fund ASSogiATiONS. 335
Section 1. Loan and fund associations heretofore incoi-porated may AsBociationsin-
be and remain bodies coi-jjorate with the powers and privileges, and sub- confiilni^''' *"
ject to the duties and liabilities, set forth in this and chapter sixty-eight im4, jm.
so far as the same are ajiplicable.
Sect. 2. Every such association shall have as part of its title the title of;
words "Loan and Fund Association," shall have not less than thi-ce u'lji' lik^Jf wu"
hundred shares, and shall file a copy of its by-laws in the office of the 6oirit:iry. &c.
secretary of the conmion wealth. Copies of certificates filed under section '^■■-^'S •
two of chapter four hundred and fifty-four of the statutes of eighteen
hundred and filty-four, attested by the register of deeds or secretary of
the commonwealth, shall be sufficient evidence.
Sect. 3. Such associations shall make loans in accordance with their to mako loans
by-laws, but only on real estate or such other securities as savings banks ™ '■^•ai estate,
may loan upon. They shall contract no debts other than those con- Soc ch. 57,
nected with the expenses of their business. In all loans, members who il Gray, 157, les.
can give satisfactory security shall be prefened.
Sect. 4. All payments of principal shall be deducted therefrom as Payments of
often as once in two years, and the interest coiTes]5ondingly reduced. n|"r,'a,"for
The charge for membershi]) shall not exceed two dollars on a share, membersiiip.
No fine shall exceed ten per cent, on the amount for which defoult is
made, nor five per cent, if paid within six months from the time of default.
Sect. 5. Each corporation shall annually in January publish in one statement of
or more newspapers in the county where it has its place of business, a pXiiJIk-" '&cf
statement verified by the oaths of its president and secretary setting It>3^,^54,§ 3.
forth its actual financial condition and the amount of its property and
liabilities ; and shall deposit a co]iy thereof so verified in the office of
the secretary of the commonwealth.
Sect. 6. No member who has boiTowed money shall vote on any Jiembers, when
question afiecting a claim against himself _ ism!°.-™'§'9.
Sect. 7. Every borrower shall be entitled to have his bond and Honii.when
mortgage or other evidence of indebtedness cancelled and discharged, ]j."'4_''4g4'|'| 7.
when he has repaid an amount equal to the ])rincij>al sum borrowed
with the monthly interest and his fines for defaults.
Sect. 8. When all the shares of the eonioration have Iteen redeemed Termination of
11 1 ^1 1 -^ i' 1 1 ^ iii eurnoi-ation.
by loans or advances thereon, or when its tunds ami jiropertj- are sulfi- ifji, 454, §-.
cient to |)ay upon the unredeemed shares their value as fixed by the by-
laws filed in the secretary's office, it shall cease to exist except to settle
its aft'airs.
Sect. 9. The supreme judicial court shall have full jurisdiction in Etii'.ityjurisdic-
equity of all controversies arising between such coi-jxiration and its ll.'j'l^'i'oJ.' §'8.^"
members.
Sect. 10. The insurance commissioners sh.tll visit and ex.amine every insurance com-
sueh corporation whenever requested in writing by five or more persons, {"l^*"™""' ''"'
each of whom is a stockholder or creditor, or pecuniarily interested in inv>, 3.;in, §§1,2.
said association, and also whenever they deem it necessary; at which ii^^n 1,,, §H>.i.
times they shall have free access to its books and pa])ors, and shall thor-
oughly inspect and examine all its affiiirs, and make all inquiries neces-
sary to ascertain its condition, its ability to fulfil .all its engagements,
and whether it has complied with all provisions of hiw a]iplicable to its
transactions. Upon such examinations the connnissioners shall have
the powers and jierform the duties they have and pertbrm in the exami-
nation of insurance companies.
Sect. 11. The commissioners shall annually on or before the first to report con-
Wednesday of January submit to the legislature a report in print of ^^Jj™ ;^f ^"T;""
the general conduct and condition of the several loan fund corporations, lature; viofa-
with such suggessions as they deem expedient ; and if in their o])iiiion t'"rn'ey-gen'erai.
any such coqwration has violated any law relative to such associations, IS'S"'^"
they .shall forthwith present the facts to the attorney-general, who may
prosecute the association or its officers as the case may be for such
violation.
33G
MANUFACTURING CORPORATIONS UNDER CHARTERS.
/
[Chap. 60.
CHAPTER 60,
OF MANUFACTURING AND OTHER CORPORATIONS ORGANIZED UNDER
SPECIAL CHARTERS.
Section
1. Manufacturing corporations, powers of, &c.
2. By-lawB.
3. Officers.
4. choice of.
5. Directors. President.
6. Clerk and treasurer.
7. Stockholders* meetings. Votes, quorum,
proxies, &c.
8. Capital, to remain as under existing laws,
&c.
9. Stock of future companies to be in shares.
10. Shares to b^ numbered, &c.
n. Capital stock may be increased.
12. special and g-eneral. Rights, &c., of hold-
ers of.
13. Shares, how transferred.
14. Assessments may be made on shares not
exceeding, &c. Notes of stockholders not
receivable for.
15. Shares may be sold to pay assessments.
16. Notice of sales, and manner of transfer.
17. Stockholders liable, &c.
18. Certificate of capital to be filed and re-
corded.
19. Same provision as to increase of capital.
20. Officers individually liable for neglect.
21. Mode of reducing capital stock ; liability of
directors.
22. If capital is withdrawn before payment of
debts, stockholders liable.
Sectiox
2.'J. Notice to be given annually of the state of
corporate affairs, or stockholders to be lia-
ble.
24. Publications, &c., required of certain cor-
porations.
25. Dividends made when corporation insol-
vent ; each director consenting thereto,
liable.
26. Officer consenting to loan to stockholders,
liable.
27. Debts of corporation not to exceed, &c.,
liability of directors, Ac.
28. Rights of companies incorporated bolbre
Feb. 23, 1H30, &c.
20. if such corporations adopt tlie provisions
of this chapter.
30. If false certificates are ma<lo knowingly, of-
ficers liable.
31. Suits against officers so liable.
32. When stockholders' persons, ^c, may be
taken on writs, &c.
33. Party summoned may defend. Separate
judgment. Supersedeas.
34. How executions may be satisfied in such
case. Proviso.
35. Remedy of officers who pay company debts,
36. What charters revocable by legislature.
37. Cotton factories, &c., may manufacture
silk, &e.
38. Provisions may be repealed ; saving rights.
Manufacturing
corporations,
powers of, &c.
R. S. .'i-S § 1.
8 Pick. 455.
By-laws.
R. S. 38, § 6.
Officers.
R. S. 38, § 2.
choice of.
R. S. 38, §§3,4,
5.
7 Gray, 1.
Directors.
President.
K. 3. :ix, §3.
Clerk and treas-
urer.
K. S. 3S, §4.
0 Pick. Sfi.
:•> Met. 2>2.
8 Cusli. 93.
Section 1. Corporations established within this state by special
charters subsequently to the twenty-third day of February in the year
one thousand eight hundred and tliirty, for the puqiose of carrying on
any kind of manufacture, and corporations which have been cliar-
tered subject to the provisions of chapter thirty-eight of the Revised
Statutes, and their respective ofticers and stockholders, may exercise
the powers, and shall be governed by the provisions and be subject to
the lialiilities prescribed in this chaj»ter.
Sett. 2. Every company may make by-l.aws not repugnant to the
laws of the state, with j)enalties for the bi*each thereof not exceeding
twenty dollars for each offence.
Sect. 3. The business of the company shall be managed and con-
ducted by a president, a board of directors, a clerk, treasurer, and such
other officers, agents, and factors, as the company authorizes for that
pur]>ose.
Sect. 4. The directors, clerk, and treasurer, shall be chosen annu-
ally by the stockholders, and vshall hold their offices until others are
chosen and qualified in their stead. The manner of such choice, and
the mode of the choice or appointment of all other agents, factors, and
officers of the company, shall be prescril)ed by the by-laws.
Sect. 5. The number of the directors shall not be less than three.
One of them shall be chosen president by the directors or by the com-
pany, as the by-laws shall direct.
Sect. 6. The clerk shall be sworn, and shall record all the votes of
the company in a book to be kept for that purpose, and peiform such
other duties as shall be assigned to him. The treasurer shall give bond
in such siun and with such sureties as shall be required by the by-laws
for the faithful discharge of his duty.
Chap. 60.] manufacturing corporations under charters. 337
Sect. 7. At all meetings of the company absent stockholders may stockholders'
vote by jiroxy authorize<l in writing ; but no proxy shall be valid vote's" q^ilorum,
unless executed and dated within six months previous to the meeting P^'^'^ll' *"■
at which it is used if the maker thereof resides in the United States; lo Mass! 94.
and no person shall as proxy or attorney cast more than fifty votes
unless all the shares so represented by him are owned by one person ;
and no officer of the coqioration as proxy or attorney shall cast more
than twenty votes. Every company may determine by its by-laws
what number of stockholders shall attend, either in ](erson or by proxy,
or what number of shares or amount of interest shall be represented at
;my meeting, to constitute a quorum. If the quorum is not so deter-
mined, a majority in interest of the stockholders shall constitute a
quorum.
Sect. 8. The capital stock of every company, the amount whereof Capital, to re-
has been fixed and limited by such company according to law, shall mnmas6Kcd,
remain so fixed, subject to be increased or reduced pursuant to the 1:. s. 38, §8.
provisions of this chapter.
Sect. 9. The amount of the capital stock of every company not stock of future
organized shall be fixed and limited by the company, and shall at its J',',""]',',™ s''* *" ""^
first meeting be divided into shares, of which a record shall be made i;.s. :w, §9.
by the clerk. !■,' yu;.'-^i
Sect. 10. The shares shall be numbered ; and every stockholder " *-''"-^' ^''■
shall have a certificate under the seal of the corporation and signed by nj'mb,'i|.«i'&c.
the treasurer, certifying his property in such shares as are expressed in i-^^- ';<, § 10.
the certificate. iiiMnss.'w."
Sect. 11. t^very company may, at any meeting called for the pur- Cnpitui stock
]30se, increase its ca])ital stock and the number of shares therein : jo;'o- "reascd.'"
vkled, that the stock when so increased shall not exceed the amount i'- s. as, § 11.
authorized by law.
Sect. 12. Every company may, Ity a vote of three-fourths of the special and
general stockholders at a meeting duly called for the purpose, issue I{™ms,'&c., of
two kinds of stock, namely, qeneral stock and .yiccial stuck. The iiofficrs of.
special stock shall at no time exceed two-fifths of tiie actual eaj<ital of ' '"
the corporation, and shall be subject to redemjition at par after a fixed
time to be ex])resseil in the certificates. Holders of such special stock
shall be entitled to receive, and the corporation shall be Itound to pay-
thereon, a fixed half-yearly sum or dividend to be expressed in the
certificates, not exceeding four per cent., and they shall in no event be
liable for the debts of the corporation beyond their stock. Holders of
such general stock sliall be jointly and severally individually liable for
all the debts pf the coi-poration until such sjiecial stock shall be re-
deemed in full.
Sect. 13. Shares may be transferred by the proprietor, by an siiarcB, how
instrument in writing under his hand and recorded by the clerk of the Ki"s"':w7|'i'2.
corporation in a book to be kept for that j)urpose. The purchaser is4g, 43.
named in such instrument so recorded shall, on producing the same to
the treasurer and delivering to him the former certificate, be entitled
to a new certificate.
Sect. 14. Every company may from time to time, at a legal meet- Assessments,
ing called for the ]iur]iose, assess ujion each share such sums of money ^""."oi'^stock-
as the company thinks proper, not exceoilinc: in the whole the amount iifidiTs not re-
Ai-iii ••ni-'ii 1 1 1 ceivable (or.
at wluch each share was originally limited; and such sums assessed k. s-as, §§13,
shall be ]>aid to the treasurer at such times and by such instalments as '''•
the company directs. No note or oliligation given by a stockholder,
whether secured by pledge or otherwise, shall be considered as pay-
ment of any part of the capital stock.
Sect. 1.5. If the proprietor of any share neglects to pay a sum duly shares may be
assessed thereon for the space of thirty days after the time appointed geismeiOsT "^
for payment, the treasurer of the company may sell by public auction a E. s. 38, § 'h.
29 43
338
MANUFACTURING CORPORATIONS UNDER CHARTERS. [ChaP. 60.
14 Mass. 286.
16 Mass. loa.
Notice of sales,
and mauner of
transfer.
R. S. 3», § 15.
i Gray, ?5.
Stockholders
liable, &c.
E. S. 38, § 16.
6 Met. 119,12.3.
12 Met. 3.
8 Gush. 93, 182.
11 CubU. 183.
4 Gray, 75.
Certificate of
capital to be
recorded.
R. S. 38, § 17.
12 Met. 3.
8 Cush. 182.
Same provision
as to increase
of capital.
R. S. :tS, § 18.
6 Met. 122.
8 Cush. 182.
Officers individ-
ually liable for
neglect.
K. S. 38, § 19.
Mode of redu-
cin<;^ capital
stock ; liatiility
of directors.
R. S. 38, § 20.
If capital is
witlidrawu be-
fore payment of
debts, stock-
holders liable.
R. S.3S, §21.
Notice to be
ffiven annually
of tile state ot
corporate af-
fairs, or stock-
holders to be
liable.
R. S. :i8, § 22.
185r, 27(), § 2.
8 Cush. 182.
sufficient number of his shares to pay all assessments then due from
him, with necessary and incidental charges.
Sect. 16. The treasurer shall give notice of the time and place
appointed for such sale, and of tlie sum due on each share, by ad\cr-
tising the same three weeks successively before the sale in some news-
paper printed in the county where the manufactory is established, and
if there is no such paper, then in some newspaper jtrinted in an adjoin-
ing county ; and a deed of the shares so sold, made by the treasurer
and acknowledged before a justice of the peace and recorded as pro-
vided in section thirteen, shall transfer said shares to the jjurchaser,
who shall be entitled to a certificate therefor.
Sect. 17. The members of every company shall be jointly and
severally liable for all debts and contracts made by the com]>any, until
the whole amount of the capital stock fixed and limited by the com-
pany in manner aforesaid is ])ai(l in and a certificate thereof made and
recorded as prescribed in the following section.
Sect. 18. The president and iliivt-toi-s, with the treasurer and clerk,
of snch comjianies shall, after the p^iyment of the last instalment of the
capital stock, make a certificate st.iting the amount of the capital so
fi.xed and paid in ; which certificate shall be signed and sworn to by
the president, treasurer, clerk, and a majority of the directors ; and
they shall cause the same to be recorded in the registiy of deeds for
the county or district wherein the works of the company are estab-
lished.
Sect. 19. If a company increases its capital stock as before pro-
vided in this chapter, the oilicers mentioned in the preceding section,
after the p.iymeiit of the last instalment of such additional stock, shall
make a certificate of the amount so ad.ded and ])aid in, sign and swear
to the same, and cause it to be recorded in the manner tlierein pro-
vided.
Sect. 20. If any of said officers refuse or neglect to perform the
duties required of tliem in the two ]ireceding sections, they sliall be
jointly and severally liable for all debts of the company contracted
after "the e.xj)iratiou of thirty days from the payment of the last instal-
ment and before such certificate is so recorded.
Sect. 21. Every company m.ay, by a vote at any meeting called for
the purpose, reduce its capital stock ; in which case, a certified copy of
the vote shall be recorded in the registry of deeds for the county or
district wht?rein the works of the comjjany are established ; and in
defiiult thereof, the directors of the company shall be jointly and sev-
erally liable for all debts of the comjiany contracted after thirty days
from such reduction and before the recording of sucli co])y.
Sect. 22. If any part of the cajiital stock of a company is withdrawn
and refumled to the stockhoMers liefore the payment of all the debts of
the company contracted jireviously to the recording of the cojiy of a
vote for that purpose in the registry of deeds as prescribed in the j)re-
ceding section, all the stockholdeis of tlie company shall be jointly and
severally liable for the p.ayment of siicli debts.
Sect. 2.3. Every such company incoi])or.ited prior to the twenty-
ninth day of June in the year eighteen hundred and fifty-seven shall
give notice annually in some news)wi)er printed in the county where
the works of the company are establisheti, and if there is no such paper,
then in some newsp.aper in an adjoining county, of the amount of all
assessments voted by the comp.any and actually paid in, and the amount
of all exi.sting debts, which notice shall Ijc signed liy the president and
a majority of the directors; and if any sudi company fails so to do, all
its stockliolders shall be jointly and severally liable for all the debts of
the company t!ien existing, and for all contracted before such notice is
given.
ClIAP. ()0.] MANUFACTURING CORPOHATIONS UNDER CHARTERS. 339
Sect. '2i. Companies subsequently established shall make, ]iul)lish, Publications,
and de|)Osit, all the certificates and returns required of corporations or- J.i.rViiiii'corpma
ganized under chapter sixty-one in the manner and under similar liabil- ''""s-
ities to those therein specined.
Sect. 25. If the directors of any company mentioned in section one Dividends mmic
declare and pay any dividend when the company is insolvent, or the tlonhrsoVvom ;
payment of which would render it insolvent, they shall be jointly and n "'If 'S^'^.'^i'''' "
severally liable for all the debts of the company then existing and for
all thereafter contracted so long as they res|>ectively continue in office:
provided, that the amount for which they shall all be so liable shall not
exceed the amount of such dividend, and if any of the diiectors are
absent at the time of making the dividend, or object thereto and file
their objection in writing with the clerk of the conij)any, they shall be
exempted from such liability.
Sect. 26. No loan of money shall be made by such company to officer conBont
any stockholder therein ; and if any such loan is made to a stockhold- "llfckiilridcrs"
er, the officers who make it or assent thereto shall be iointlv and linide.
severally liable to the extent of such loan and interest for all the ■ °- •»»• s -•»•
debts of the company contracted before the repayment of tlie sum
so loaned.
Sect. 27. The whole amount of the debts which any such company oobtaofcorpo-
at any time owes, shall not exceed the amount of its capital stock ceod"&"" • iiabn
actually paid in; and in case of any excess, the directore under whose ity of directorc,
administration it occurs shall be jointly and severally liable to the ex- k.s. 38, §25.
tent of such excess for all the debts of the company then existing and
for all that are contracted so long as they respectively continue in office,
and until the debts are reduced to the amount of the cajiital stock:
prouided, that any of the directors who are absent at the time of con-
tracting any debt contrary to the foregoing provisions, or who object
thereto, may exem])t themselves from liability by forthwith giving
notice of the fict to the stockhoMers at a meeting which they may call
for that purpose.
Sec^t. 28. All manuficturing companies incorporated before the nights of com
twenty-third (Liy of February in the year one thousand eight hundred S'id bSo''""
and thirty, which prior to the passage of the Revised Statutes in pursu- I'cb. a:j, ikjo,
ance of chapter fitly-three, of the statutes of the year one thousand u.'s. 38, § 2".
eight hundred and twenty-nine, have voted to adopt the provisions con- ''ee§3e.
tained in said last mentioned statute, and which have jiertbnned all
things prescribed in chapter thirtj'-eight of the Revised Statutes, shall
together with their respective members and officers be entitled to all
the rights, privileges, and immunities, and be subject to all the liabilities,
to which they may be entitled or subject by the laws in force at the time
when this chapter shall take eflfect.
Sect. 29. If any such company at a legal meeting called for the ifsuchcorpo
purpose has adopteil the provisions of chapter thirty-eight of the Re- [j!l.'p".m''Jsi'oni,
vised Statutes, or shall adopt the ])rovisions contained in this chapter, oi this chiipter,
and shall have causeil to be recorded in the registry of deeds in the suc'§30. '
county or district where such cor]ioration is established, a certificate
signed by the president, treasure)', clerk, and a majority of the directors,
stating the amount of capital actually ])aid in, and if any part thereof
has been divided or withdrawn, the amount so divided and withdrawn;
stating also the amount of the debts .and credits, and an estimate of the
value of the real and personal estate of said corporation for the purpose
of carrying on the business thereof, at the time of making such cer-
tificate ; and if such officers have made oath that th'V have carefully
examined the records and accounts of said corporation, and faithfully
estimated the value of the jjrojjerty and funds thereof, and that said
certificate by them signed is true according to their best knowledge and
belief; then no stockholder in such company shall be liable for any
340
MANUFACTURING CORPORATIONS UNDER CHARTERS. [ChAP. 60.
If fill se certifi-
cat-w'ft are made
knowingly, offi-
cers liable.
R. S. :),s, §28.
0 Mot. !■«.
Suits against
officers so lia-
ble.
U.S. .18, § 39.
1853, 312.
V.'Iien stock-
holders' per-
sons, &c., may
bo taken, &c.
U. .-*. ^is, §30.
lti.")l,315, §1.
M!,24, §1.
]'■. .Mass. .3,s9.
17 .Mass. (H, 330.
(i .Met. 124, 126.
1.1 Met. 49S.
!S L'nsll. 93.
9 Cnsh. 578, 75.
4 (l.MV, 75.
13 Gv.iy, 182.
Party sum-
moned may de-
l.'nl.
Separate judg-
ment.
.Supersedeas.
I.S5 1.315, §2.
4 Ciray, 75, 274.
How e.Kocn-
tions may be
satislied in sucli
case.
Proviso.
1851,313, §3.
1852, 34.
4 Gray, 274.
Uemedy of offi-
cers, &c., who
pay company
tlebts.
U.S. 38, §§32,
3.3.
4 Gray, 75.
What charters
revocable by
legislature.
R. S. 38, §36.
Cotton facto-
ries, &c., may
debts of the company contr.acted after the recording of such certificate,
e.vcept for the causes and in tlie manner herein before provided.
Sect. 30. If any certificate made, or any public notice given, by the
officers of a company in pursuance of the provisions of this chapter, is
false in any material representation, all the oflicers who signed tlie same
knowing it to be false shall be jointly and severally liable for all the
debts of the company contracted while they were stockholders or olfi-
cers thereof
Sect. 31. When any of the officers of a company are liable by the
provisions of this chapter to ])ay the debts of the company, or any part
thereof, any person to -tthom they are so liable may have an action of
tort against any one or more of said oflicers ; and the declaration in
such action shall state the claim against the company and the ground
on which the j)laintift' expects to charge the defendants personally; and
such action may be brought notwitlistanding the pendency of an action
against the com]iany for the recovery of the same clahn or demand ;
and both of the actions may be prosecuted until the plaintifl" obtains the
payment of his debt and the costs of both actions.
Sect. 82. When the stockliolders of such a company are liable by
the provisions of this cha]iter to pay the debts of such company, or any
part thereof, their persons and property may be taken therefor on a
writ of attachment or on execution issued against the company ibr such
debt, in the same manner as on writs and executions issued agaiu.st them
for their individual ilebts; but the person or property of a stockholder
shall not be taken upon such execution issued in any action instituted
subsequent to the twenty-fourth day of June one thousand eight hun-
dred and fifty-one, unless a summons m the action was left with such
stockholder.
Sect. 33. Any stockholder with whom such summons has been left
shall be adinitteil to defend in such action, and if it appears that he is
not liable therein, judgment shall be entered for him upon the issue
joined, and for his costs; and judgment maybe entered in the same
action against the cor]ioration for damages and costs as ujion a default.
All execution that may issue upon such judgment against such coi-jiora-
tion shall have annexed thereto a sujiereedeas as to such stockholder.
Sect. 3-1. Upon an execution issued on a judgment recovered against
a corjioration the stockholders whereof are liable for its debts or any
part thereof, in which a demand has been made and the execution is
not satisfied, the ]ierson or pr()])City of any oflicer of the coqioration at
the time when the cause of action accrued, or when the judgment was
rendered, may be taken, and if no jjiojierty of such oflicer can be found
to satisfy the execution, then the person or property of any stockholder
may be taken thereon. The ]>rovisions of this and the preceding section
shall not apply to executions issued in any action which was pending
on the twenty-fourth day of June one thousand eight hundred and
fifty-one.
Sect. 35. An officer or stockholder of a company who voluntarily or
by compulsion pays a debt of the company for which he is made liable
by the provisions of this cha])ter, may recover the amount so paid in an
action of contract against the company for money paid for its use, in
which action the pro])erty of the comjiany only shall be liable to be
taken, and not the pro))erty of any stockliolder.
Sect. 36. The charters of corporations established subject to the
pro\'isions of chapter thirty-eight of the Revised Statutes or of this
chapter, and of the coqiorations mentioned in sections twenty-eight and
twenty-nine, may be revoked by the legislature for any cause which
they deem sufficient.
Sect. 37. Any coq)oration organized for the manufacture of cotton
or woollen goods may, upon the consent of four-fifths of the stockholders
Chap. 61.] corporations organized under general laws. 341
by a vote at a mectinsj c.illecl for the purpose, caiTy on the manufacture manufacture
of silk, linen, flax, or India rubber, goods. iM^i, wii.
Sect. 38. Tiie provisions contained in this chapter may be amended provisiouB may
or repealed at the pleasure of the legislature. ^ s^'aT'sliV
CHAPTER 61
OF CORPORATIONS ORGANIZED UNDER GENERAL STATUTES.
COMPANIES FOR CUTTING AND SELLING ICE,
OR FOU MECHANICAL, MINING, QtlARKYlNG,
and manufacturing purposes.
Section
1. Three or more persons may become a cor-
poration.
2. Purjiose and locatten shall be specified, &c.
3. First meetiui^, how called.
4. May confirm, &c., former organization, &c.
5. Or^^anization, powers, &c., of.
6. ('apital stock, amount, increase, and reduc-
tion of.
7. 3Iay hold real and personal estate and do
business out of state.
8. CertificJltc of name, stock, &c., of corpora-
tion to be made, sworn to, published, &e.,
before commencing business.
9. upou iucrease, &c., of stock.
Section
10. Certificates of stock, assets, liabilities, &c.,
to be made, sworn to, and filed.
11. Liability of officers neglecting, &c.,to com-
ply.
12. how may be limited.
13. Secretary to publish abstract, Ac.
14. Cotton and woollen manufacturers.
GAS-LIGHT COMPANIES.
15. Ten or more persons may become a corpo-
ration for manufacturing, &c., gas. Excep-
tion.
IG. Corporation may dig up streets, &c.
17. Under control of selectmen, Ac.
IS. Other companies may hold stock.
19. Legislature may amend, «kc.
COMPANIES FOR CUTTING AND SELLING ICE, OR FOR irECHANICAL, MINING,
QUARRYING, AND MANUFACTURING PURPOSES.
Section 1. Three or more persons who shall have associated them- Three or more
selves together by articles of agreement in writing for the purpose of eome a^corpora-
cutting, storing, and selling ice, or of carrvinsr on any mechanical, t'on.
mining, quarrying, or manufacturing business, e.Kcept that of distilling or iB52j9,§§i, i
manufacturing intoxicating liquors, and shall have com])lied with the
provisions of this chapter, shall be and remain a coi-poration under any
name indicating their corporate character assumed in their articles of
association, and which is not previously in use by anj' other corporation
or comi)any.
Sect. 2. The purpose for and the place within which such coi-j^ora- Purpose and lo-
tion is established shall be distinctly and definitely si)ecified in the ^pSed',*"c'"
articles of association : and such corporation shall not direct its opera- issi, 133, §3.
.• ■ ^ -J. 4- 1 » 4i ^ See§ 11.
tions or appro])riate its funds to any other purpose.
Sect. 3. The first meeting of such corporations hercafler organized First meeting,
shall be called bv a notice siarncd by one or more of the persons named '.'mT? i-L'''s'o
, ' . '7 . '' , -, ^ /I 1 1855, 4*8, §2.
in such agreement, stating the time, place, and purposes, of the meet-
ing, a copy of which shall seven days at least before the meeting be
given to each member or )iublishod in some newspaper printed in the
county where the corporation is to be located.
Sect. 4. If doubts arise whether any such corporation is legally May confirm,
organized, the stockholders, at a special meeting called for the purpose *JniIatiou'^&c[
under their by-laws or under the preceding section, may by vote con- 1-^5, 478, §3.
firm such organization and all proceedinsfs under it ; and by so doing,
and depositing one copy of such vote with the clerk of the city or
town where the corporation is located, and one with the secretary of
the commonwealth, such corporation .and the subsequent acts of the com-
])any shall be held legal and valid as if the original organization had
been legal.
29»
342 CORPORATIONS ORGANIZED UNDER GENERAL LAWS. [ChaP. 61.
Organization, Sect. 5. Eveiy corporation so organized and its ofiicers and stock-
?8jT fm *§H, 5. holders shall liave all the jiowers and privileges and be subject to all the
1857,276,52. duties, restrictions, and liabilities, set forth in chapter sixty so far as
they are ajjplicable, except section twenty-three of said chapter ; and
the president, directors, and treasurer, shall be chosen according to the
provisions of that chapter.
Capital stock, Sect. 6. The amount of capital stock of such coqioration sliall be
cre.°s°*and re- fixed and limited in its articles of association. The corporation may
iluctiou of. ^ increase or diminish its amount and the number of shares at any meet-
iT; 'i8o5,'(>x,"§i; ing of the stockholders specially called fur the jiuriiose, biit the cajiital
^^5,478, §5. sii;,]l never be less than live thousand nor more than fi\e hundred
thousand dollars, and no share shall be issued for less than its par
value.
May hold prop- Sect. 7. Sucli Corporation may in its corporate name take, hold, and
lute. "■'""'*' convey, such real and personal estate as is necessary for the ])urposes of
i*^-'47s'li' ^^^ organization; may carry on its business, or so much thereof as is
185?! 24-' ' convenient, beyond the limits of the state, and may there ]iurchase and
hold any real or personal estate necessary for conductijig the same.
Certificate to Sect. 8. Before such corporation commences business, the president,
&c.^before'com- treasurer, and a majority of the directors, shall sign, swear to, jniblish
mencingbusi- three times in some news])aper printed in the town or county wherein
188 r,' 133, § 4. such corporation is situated, and dc])osit with the secretary of the com-
iis-'^VB^U monwealth, a certificate setting forth the corporate name and j)ur]iose
See'lfu', 12.' of the association, the amount of the capital stock, the amount actually
paid in, and the ]iar value of the shares in the corporation ; and shall file
a copy thereof with the clerk of the city or town therein the corjiora-
tion is situated, to be by him recorded in a liook kept for the ]iur]jose.
Within thirty days after the payment of any instalment called tor by
the directors, a eertitioate thereof shall be in like manner signed, sworn
to, deposited, filed, and recorded.
uponincrease, Sect. 9. When the capital stock and shares of any such corporation
Ssi "m'Ts' ^^^ increased or reduced under the ]n-ovisions of section six, a certificate
)S55!47'8', §5! thereof shall be made, signed, sworn to, deposited, and recorded in
See §§ 11, 12. manner aforesaid.
Certificates of Sect. 10. Every such corjtoration shall file the certificates required
abmti'e'/ &c!' to o^ corpor.ttions by sections eighteen and nineteen of chapter sixty, and
be luaiie', sworn the directors shall annually in December make, and the president, treas-
is5i',''i33','§§'9, ui'e'N and a majority of the directors, shall sign, swear to, and dejiosit
v''-i tie 1 ^'''^ ^^^^ °^'^'''^ °*' ^^^^ '"'^y *"' ^°^^ " ™ which such corporation is estab-
18551 iw, §3.' lished or located, a certificate stating the amount of capital stock ])aid
See §§11, 12. j,j^ ^i^g name of and number of shares held by each stockholder, the^
amount invested in real estate and in personal estate, the amounts of
property owned and debts due to the corporation on the first day of the
month next preceding the date of such certificate; and the amount as
nearly as can be ascertained of existing demands against the corporation
at the date of the certificate.
Liability of offi- Sect. 11. If the officers of any such coqjoration violate the ju-o-
&It t'o''!unu!?f.' visions of section two, or neglect or refuse to perform the duties re-
K. S. 38, § ly. " quired by sections eight, nine, "and ten, they shall be jointly and severally
iSl; Irs.ll!' liable for all debts of" the corporation contracted during the continuance
of such violation, refusal, or neglect,
how may be Sect. 12. When the officers of such corporation have failed to per-
isiirits, § 4. fo'"'" the duties prescribed in sections eiglit, nine, and ten, the certifi-
cates therein mentioned may be made, ]iublished, and filed, at any time
after such failure ; and such officers shall not be personally liable for the
debts of the coqioration contracted after the requisitions of said sec-
tions have been complied with.
Secretary to Sect. 1:1 The secretary of the commonwealth shall annually ]5re)^are,
8tract,'&l!!" cause to be printed, and on the first We<:lnesday of January submit
Chap. G2.] turnpike, canal, and bridge corporations.
to tlie legislature, a true abstract from tlie certificates required by this issi, 133, § 14.
chapter to be deposited with him.
Sect. 14. Corporations organized for the pui-pose of manufacturing Cotton and
cotton or woollen goods shall liave the powers conferred upon like coi- (UrturcrB?''""
porations organized under special charters by section thirty-seven of if^s-'. i95.
chapter sixty.
GAS-LIGHT COMPANIES.
Sect. 15. For the puqiose of making and selling gas for light in a Ten or more
city or town, ten or more persons may organize as a corporation under b"f,n"c "cm--
and shall be subject to the provisions of this chaiiter : but in a city or poratiou for
, . , •' ' . ^ . .. ' .. , •' niauuliicturing,
town m wl)ich a gas company exists m active operation no such cor- ^c., gns.
Iteration shall be organized unless the iiarties to the association are J:?r','l)"'5',
inhabitants ot the place ; nor unless the existing corjtoratioii has realized iss?, .;7(i, § 1.
an annual yearly dividend of seven per cent, on its caisital stock for a
period of five years.
Sect. 16. Such corporations may, with the consent in writing of the Coipoyation
mayor and aldermen or selectmen, dig up and open the grounds in any "Jreefsfio.
of the streets, lanes, and highways, of such ))lace, so far as is necessary ims, i«, §2.
to accomplish the object of the corporation ; but such consent shall not
affect the right or remedy to recover damages for any injury wliich sliall
be caused to persons or ])ro]»erty by the doings of such corporations.
They shall put all such streets, lanes, and highways, which are opened,
into as good rejiair as they were in when ojiened ; and ujion failure so
to do within a reasonable time shall be deemed guilty of a nuisance.
Sect. 17. The mayor and aldermer
pipes or conductors of such a corpor;i
restrict, and control, all acts and doings of such coqioration which maj' isss, Hf., §3.
in any manner artect the health, safety, convenience, or piroperty, of the
inhabitants of such place.
Sect. 18. Any manufacturing, machine, or other company, having otiier compa-
its place of business in any place into whicli it is proposed to introduce stock™"^ ''"'"^
the manutacture of gas for light, may hold not exceeding ten per cent. isss. H6, § i.
of the stock in such gas-light company.
L'n or selectmen of a place in which I'nder control
,. 1 1 , of selectmen,
joration are sunk, may regulate, .n.,..
GBNIERAL PROVISION.
Sect. 19. The legislature may amend or repeal this chapter so as to LegiBiature
affect existing cor])orations, and may by special acts annul or dissolve 1^1,™™ 13.*
any such corporation.
CHAPTER 62.
OF TURNPIKE, CANAL, AND BRIDGE CORPORATIONS.
TUItXPIKES.
Section
1. Turapikes. Shares personal eatate.
2. Corporation may erect gates, &c., post rates
of toll, &c.
3. Gates, liow removed.
4. Kates of toll.
5. Who exempt from payment of toll.
6. Penalty for evailing- toll.
7. for exacting illeg-al toll,
8. for using wheels contrary to law.
for false account of weight, &c.
for locking wheels without shoe,
for opcniug roads to avoid gates.
9.
10.
11.
Section
12. Corporation liable for defects. Exception.
13. Fines, Iiow applied.
14. Commissioners may lay out turnpikes as
highways.
15. to allow and apportion damages. Pro-
ceedings if town refuses to pay.
IG. When made highway, rights of corporation
to cease. Land to revest.
17. Corporation to exhibit accounts to gOT-
ernor, A-c.
18. If out of repair, gates may be opened.
19. May be dissolved.
344
TURNPIKE CORPORATIONS.
[Chap. 62.
CANALS.
Section
20. Mastor of canal boat to exhibit certificate
to collector. Penalty. Blank certificates
to be furnished.
21. Penalty for false statement.
22. Collector may require load to be weighed.
Cost, by whom paid.
Ur.IKGES.
.Section
2.3. Limitation of liability of corporation.
24. Same subject.
PENALTIES.
25. Penalties, how recovered.
Turnpikes.
Sjiares personal
estate.
K. S. 39, § 10.
y Pick. 80.
Corporations
may erect gates,
.tc, post rates
of toll, &c.
K. S. .39, §§22,
•-',-, 30, .31.
■-• Mass. 143.
■i Pick. 342.
Gates, how re-
moved.
K. S. 31), §§ 28,
29.
Rates of toll.
K. S. 3U, §§ 22,
23, 24.
3 Greenl. 191.
TUENPIKBS.
Section 1. Shares in a turnpike eoi-poration shall be personal estate;
and shall be transferred by deed acknowledged before a jiustiee of the
peace and reconled by the clerk of the coiporation in a book kept by
him for the purjiose.
Sect. '2. Such corporation may erect gates in such places as the
county commissioners direct, but no gate where full toll is to be taken
shall be erected within ten miles of any other gate on the same road,
except in cases expressly authorized by the legislature ; and no gate shall ■
be erected on a county or town road pre\4ously establislied. At eveiy
gate where toll is collected, the corporation shall erect and keep exptjsed
to view in some conspicuous place a sign-board with all the rates of toll
fiirly and legibly written or juinted thereon in letters of a large size;
other^nse it sh.ill not be entitled to demand toll at said gate.
Sect. 3. When the dii-ectors of such coqioration desire to remove
a gate of its road, they may petition the county commissioners for per-
mission so to do ; who at the expense of the corporation shall give
reasonable notice to all ]iersons interested of the time and place of meet-
ing for a hearing, by advertising the same in some new.spaper fourteen
days at least before the time appointed for such meeting. If they think
it expedient they may view the premises eilher b}- themselves or by
a committee appointed for the purpose; and after hearing ail parties
interested they shall deteniiine whether the gate shall be removed as
prayed for, and may order it to be removed accordingly.
Sect. 4. Such corporation may demand of each traveller or passenger
at each of the gates at which it is allowed to receive full toll, and at all
other gates in the same jjroportion, the following rates of toll, namely :
for each coach, chariot, phaeton, or other four-wheeled spring caiTiage
drawn by two horses, twenty-five cents, and if drawn by more than two
horses, two cents for each additional horse ; for every cart or wagon
drawn by two horses, ten cents, and if drawn by more than two horses,
two cents for each additional horse; for every cart or wagon drawn by
two oxen, ten cents, and if by more than two oxen, twelve aiid a half
cents ; for every cart or wagon drawn by more than foui- oxen or horses,
two cents for each additional ox or horse ; for every curricle, fifteen cents ;
for every chaise, chair, sulky, or other two-wheeled carriage lor pleasure,
drawn by one horse, twehe and a half cents ; for every cart, wagon, or
truck, drawn by one horse, six cents and one-quarter of a cent; i'or each
wagon or carriage, with tiiur wheels, drawn by one hoi>e only, according
to the following rates of toll: for every such can-iage the body or seats
of which are placed on springs and covered with cloth, canvas, or leather,
and used for 'the conveyance of persons and ])ersonal baggage only,
twelve and a half cents ; for every such can-iage without sj)i-ings, six
cents; and for all other carriages of four wheels drawn by one horse,
for the conveyance of persons and personal baggage, that rate of toU
which is the nearest to the mean sum, in cents, between the two rates
of toll above specified, as established at each of such gates; for every
man and horse, four cents ; for every sleigh or sled drawn by two oxen
or horses, eiglit cents; and if drawn by more th;m two oxen or horses,
one cent for each additional ox or horse; for every sleigh or sled dr.iwn
by one horse, four cents ; for all horses, mules, or neat cattle, led or
Chap. 62.] turnpike corporations. 345
driven, besides those in teams or carriages, one cent each ; for all sheep
or swine, at the rate of three cents by the dozen.
Carts or wagons having wheels the felloes of which are six inches
broad or more, shall be subject to pay only half the toU to which other
carts or wagons are subject.
The rates of toll may be commuted with any person.
Sect. 5. Xo toll shall be demanded or received of any person pass- who exempt
ing on foot upon any occasion, or passing with his horse or carriage to or o'i""if '''^°"^°'
fi'om his usual place of public worship, or on military duty, either on k. s. 39, §§25,
foot, horseback, or in a carriage; nor from any person residing in the 4 pick. 341.
to^m where tlie gate is placed, unless he is going or returning from
beyoml the limits of said town ; nor from any jierson going to or return-
ing from any grist mill, or on the common and ordinary business or
concerns of the family. But any person passing a tui'n])ike gate and
claiminnf to be exempted by law from the payment of toll, shall, if
required by the toll-gatherer, first declare to him his name and )>lace of
abode ; and if for the purpose of avoiding the payment of toll he wil-
fuUj' gives a false statement and thereby passes the gate toll free, he
shall forfeit ten dollars to the use of tlie cor]ioration for each otlenee.
Sect. C. Whoever, not exem])t by law from paying toll, ]>asses or Pcn.iityfor
attempts to pass a toll gate lawfully estal)lished, without tirst jiaying the jj's'"^ m'k
lesjal toll and with intent to avoid iiavinsc the same; or with Jiis hoi-se, :«.
team, or cattle, with like intent, turns out of any ro.ad on which such 4 cusii. 503.
toll gate is so established, and again entei's thereon ; shall fort'cit a sum
not exceetUng twenty-five dollars for each offence.
Sect. 7. If such corporation, or its toll-gatherers, or any person in forexncting
its employment, demands or receives of any person passing on its road, 1'/ *'§''y]"§5 3s
more toll than is by law establislied, or unreasonably delays or liin<lers »■<■_
any traveller or passenger from ]>assing any of its gates or roads, it shall '*^~' '"
forfeit a sum not exceeding fifty dollars, to be recovered by the person
so injured, to his own use, in an action of tort.
Sect. 8. All loaded carts or wagons passing on a turnpike road and roniFing
carrying more than forty-five hundred poumls, shall be drawn on wheels "„']„„! ™"*'^"^
having each a felloe not less than three and a half inches wide; and k. s. 39, §30.
whoever passes on such road with a cart or wagon so loaded and drawn
on wheels having narrower felloes, shall pay the coiporation three times
the legal toll therefor.
Sect. 9. Every person passing on a turnpike road and driving or for false ac-
having the care of a loaded cart or wagon with wheels the felloes of "p""' "' ""'s''*'
which are less than three and a half inches wide, shall u]ion the request k. S. 39, §37.
of the toll-gatherer give a true account of the weight of the load and
also his name and place of abode ; and if he refuses to declare, or wil-
fully misrepresents, the weight of his load, or gi^•es a false account of
his name or place of abode, with intent to defraud the corpoi-ation, he
shall forfeit the sum of ten dollars for each offence.
Sect. 10. Whoever driving or having the care of a loaded cart or for locking
wagon passing on a turnpike road, locks, chains, or fastens, any wheel of jilo™'"* ^""""'*
such cart or wagon, without putting un<ler the wheel an iron shoe not fi. s. 39, §«.
less than six inches wide and twelve inches long, shall for each oflence
forfeit a sum not exceeding twenty dollai-s.
Sect. 11. Whoever, e.xcept in the opening or making of a highway, fur opening
opens or makes any road or passway leading from a turnpike road, and ^"^jj^'""™'"
reunites said road or passway with such turnpike road, or with any i!.s.'39, §§«,
road connected therewith, for the purjiose of avoiding or aiding others ^'''
to avoid a gate on the turnpike road, shall fort'cit to the use of the cor-
poration a sum not exceeding one thousand clollars.
Sect. 12. When a person liable to the jiayinent of toll sustains an Corporation Ua-
injury by reason of a turu])ike road being insufiicient or out of repair, Kxrontini''^'^^
the corporation owning the road shall be answerable for such injury, and R- s.39, §42.
546
TURNPIKE CORPORATIONS.
[Chap. 62.
183S, 104.
4 Pick. a41.
2 Gray, 08.
Fiues, how ap-
pliod.
K. S. 39, § 41.
CommissionerB
may lay out
tui'Lipikt-'s aa
Iii;,^lnvuyfl.
K. S. 3'.), §§ 16,
18.
1.S45, 20!l, § 1.
18 Pick. 483.
S Cush. 300.
to allow and
Ujiportion dam-
:i,,^i;s. Proceed-
i'l^'s if town re-
i"nses to pay.
i;. .S. 31), §§ 17,
I'.i, -.'D.
1S!5, 209, §?.
12 Met. 455.
3 Oush. 300.
12 Met. 4.')5.
10 Cush. 295.
"When made
highway,
rights, &c., of
corporation to
cease. Laud to
revest.
U. S. 39, §§ 15,
21.
Corporation to
cxliibit ac-
counts to gov-
ernor, &c.
K. S. 39, § 13.
If out of repair
gates may be
opened.
K. S. 39, § 40.
1S40, 12.
also linble to imlietment for such insufficiency and want of repair; but
ouch corj)oration shall not be liable for damages to any ijerson wliose
carriage and load exceed the weight of six tons.
Sect. 13. All fines imposed on a turnpike corporation for neglecting
to repair its road shall be appropriated to that pur])ose. The court im-
posing a fine shall .appoint a suitable agent so to apply it, who shall
receive the same of the officer having the warrant for collecting it,
and make return of his doings therein to the court, according to the
order. The receijit of such agent upon the warrant shall be a sufficient
discharge to the officer.
Sect. 14. When such corporation makes application to the county
commissioners to permit it to relinquish its franchise as to the whole or
part of its road which it is bound to sup|iort within their jurisdiction,
requesting that the same maybe laid out as a common highway; or
when the commissioners on application determine that the common
convenience and necessity require such road to be laid out as a common
highway; they may with the assent of the corporation so lay out the
same or any part thereof, and make alterations therein ; ]iroeeeding in
all respects in conformity with the provisions of chapter forty-three
respecting the laying out of highways.
Sect. 15. The commissioners upon such taking may allow such
damages as they think reasonable to the corporation, to be paid out of
the county treasury, and they may order a part of such damages, not
exceeding one-third thereof, to be refunded to the county treasury by
the cities and towns through which the road passes, at such times as
they direct. In apportioning the proportions to be paid by each, they
shall have regard to the length of way in each, and the advantages to
be derived to it.
If a city or town refuses or neglects to ]iay its proportion, the same
proceedings may be had to enforce the payment as are provided in case
of expenses of making higliways by the commissioners where cities or
towns neglect to make the same.
In the assessment of damages there shall be allowed to persons injured
such damages only as they would be entitled to beyond the damages
they would have sustained by the continuance of the turnpike road,
taking into consideration any advantage which may accrue in conse-
quence of making the same a highway.
Sect. 16. When a turnpike road or part thereof is established as a
highway, all the rights, i)rivileges, duties, and obligations, of the cor-
poration, so far as they relate to that ]iart of the road, .shall cease; and
when any such ro.ad is discontinued in whole or in part, the land over
which the part discontinued was laid .shall revest in the persons, their
heirs and assigns, who were owners thereof at the time it was taken or
purchased for the purpose of making such road ; any conveyance thereof
by deed to the corporation notwithstanding.
Sect. 17. Every such corporation estalilished subsequently to the
sixteenth day of March in the year one thousand eight hundred and
five, shall annually in January exhibit to the governor and council a true
account of the income or dividends arising from its tolls, together with
its necessary disbursements for the year ; and the books of the corpora-
tion shall at all times be subject to the inspection of the governor and
council anil the legislature.
Sect. 18. When the road of any such last mentioned corporation is
suflered to be out of repair, and coinjilaint is made to the commission-
ers, and a sufficient recognizance given to the county with sureties to
the satisfaction of the commissioners for the payment of all costs and
expenses which may arise by reason of the proceedings thereon if the
complainant does not prevail, they may, after giving at least fourteen
days' notice of said complaint to the jJi'esident or clerk of the corpora-
Chap. (52.] cax.\ls, bbidge-cop.poration'.s. 347
tion, order that the g;Ues be set ojieii ; .ind m:iy order the costs and
expenses to be paid by the corporation, and issue a warrant for the
collection of the same. When au attested copy of such order is letl
with the president or clerk, the gates shall be set open immediately,
and no toll shall be demanded until the commissioners revoke said
order.
Sept. 19. The legislature may at anytime dissolve any such last Maybcriis-
mentioued corporation. ^ ]i.'j>j, § n.
CANALS.
Sept. 20. The master or conductor of every boat laden with goods, Master of mna!
wa!\'s, or merchandise, which enters the waters of a canal to be carried cer'/iiiraiie ti'^''
thereon, shall exhibit to the collector of tolls a certificate signed by collector,
such master or conductor, wherein shall be set forth the name of the ui',',',;'i; J,'.,tifi-
owner of the boat, the name of the i)lace to which it is destined, and cat.s to be Air-
the quantity or weight of the respective articles laden on board ; therein k!s, :i'j, §§ss,
distinguishing each article, as to quantity or weight, according to the *'''''■''-■
amount of toll which the same is liable to jiay.
If the conductor or master neglects or refuses to exhibit such certifi-
cate, or if he knowingly, and with intent to defraud said jirojirietors,
makes or delivers a false certificate of the kind or quantity of goods,
wares, or mei'chandise, laden on board such boat, he shall forfeit to the
proprietors of the canal one hundred dollars.
The proprietors shall prepare the ]iro]ier blank forms of certificates of
loading ; and the masters and conductors of boats shall be entitled to
use them without expense.
Sect. 21. Whoever, knowingly and with intent to defraud the pro- Penalty for
prietors of a canal, makes or causes to be made any false statement of i"I s. 39"*sS)!''''
the quantity or quality of goods, wares, or merchandise, laden oi- to be
laden on boird of a boat used on such canal, shall forfeit one hundred
dollars.
Sect. 22. When the collector of tolls on a canal thinks proper to Collector may
ha\e the lo idinir of a boat weisrhed in order to ascertain the amount of r'l''',l"fl ,'""i'' '"
toll jiayable therefor, he may detain such boat, and cause the goods, Cost by whom
wares, and merchandise, laden on board, to be weighed; and if it is ul's. .-jg, §91.
found that the loading is greater than the quantity stated in the certifi- is52, 312.
cate, the master or conductor of the boat, in addition to the penalty
hereinbefore provided, shall pay the costs and charges of unlo.iding,
weighing, and reloading such goods, wares, or merchandise ; but if it is
found that the quantity is not greater than is stated in the certificate,
the proprietors of the canal shall pay all such costs and charges, and
reasonable damages for the detention of the master or conductor, and
the i)ersons ein])loyed in such boat, to be recovered in au action of tort
against said proprietors.
BEroGES.
Sect. 23. If any person having the care of a drove of neat cattle or Limitation of
horses, and driving the same over- a turnpike bridge, or toll bridge, at pj;[.','jj'Jjj°' ™''"
one and the same time an<l without the consent of the toll-gatherer or k. s. ai, § «.
other agent of the corporation owning such bridge, permits more than ' '
twenty neat cattle or horses to be u]ion such bridge, the same being
more than fifty feet in length from one abutment, pier, or trestle part,
to another, or if any person drives or transports over such liridge, with-
out such consent, a loaded cart, wagon, or other carriage, the weight of
which exceeds forty-five hundred pounds, exclusive of the team and
carriage, and thereby breaks or injures such bridge, the corporation
owning the same shall not be liable for any loss or injury occasioned
thereby to the owner of such cattle or other things.
Sect. 24. No corporation shall be liable in damages for a deficiency same subject.
348
RAILROAD CORPOKATIONS.
[Chap. 63.
in its Ijiidges, to any person wliose carriage and load thereon exceed
tho W(.'i<2-ht of six tons.
Penalties, liow
recovered.
R. S. 39, § W.
1852, 312.
PENALTIES.
Sect. 25. All penalties and forfeitures accruing to such a corpora-
tion under tlie provisions of tliis chapter, may be recovered in an action
of tort in the name of its treasurer.
CHAPTER 63,
OF KAILROAD CORPORATIONS.
Sectiox
1. Railroad corporations to be under provis-
ions of this chapter.
ORGANIZATION, OFFICERS.
2. Organization ufoflieers, itc.
3. Salaried officers not t'li<^ible as directore.
MKKTINciS, VOTES.
4. Meetings, how called.
5. Votffs.
0. I'roxiea.
CAPITAL STOCK, ASSESSMENTS, &C.
7. Certificate of stock subscribed, to be filed.
8. Stock not to issue at leea than par.
9. Assessments, how made and collected.
10. If unpaid, shares may be forteited, &c.
11. Shares, personal estate. Transfer of.
l:^. Corijonition may hold stock in teleg-x-aph
coiupauies.
CHARTERS.
13. Petitions for charters to be accompanied by
report of enj^iueer, map, &c.
H. Plans to be placed in state library,
lo. Petitions not acted upon until notice, &c.
Hi. Koads to be within limits specitied.
LOCATION OF ROAD.
17. Width of road, and materials for construc-
tiou.
IS. Locution to be filed.
TAKING LANDS, &C.
19. Corporation may purchase or take land, .te.
20. Laud for depot puri>oses, &c.,to be taxed.
DAMAGES.
21. Corporation to pay damages, as in c^ise of
hig^hways.
22. Either party may have jury.
2;J. Proceedinys wheu land lies in adjoining
coimties.
24. Guardians, &c., may release damapros.
2J. Damages, how assessed where claimants
have (litt'creiit interctjts.
2i>. in c.*^i8e of mortgaged lands.
27. same subject.
28. Applir-ition for damages by owners of pri-
vate w lys.
29. Applicntion for damages to be made within
three yoars.
.30. Time enlarged if suits pending, &c.
.31. Upon abatement of petition, &v., new pro-
ccedin r« may bo Iiad within one year.
32. Security for damages, &c., if required.
SECTION
33. C'oininissioners may issue warrants of dis-
tress. Rights of corporation neglecting
payment, to cease.
34. S. J. C. may restrain corporations not com-
plying with previous sections.
35. Corporation may tender damages. Party
applying lor jury to pay costs unless, &e.
3(j. In i;<>&tuu,i:amages to be assessed by board
of aldermen.
37. Jury in such case.
ALTERATION OF ROAD.
38. Corporation may vary direction of road.
Pi'oceedings theretin.
39. Damages in such case.
CONSTRrCTION.
40. Commissioners may order embankments,
&c.
41. Corporations neglecting to comply, S. J. C.
may enforce periormauce ; or o\vTier recover
double damages.
42. to make and maintain fences in certain
eases.
43. to construct fences and barriers against
cattle.
44. penalty, &c., for neglect.
4j. to luruish phm, &c., of land, &c., taken.
CROSSING HIGHWAYS, &C.
46. Railroads not to obstruct other roads.
47. crossing highway, &c., to pass over or
under.
48. Corporation wisliing to raise or lower
highway, &c., to obtain decree of commis-
sioners, &c.
49. obstructing highways, neglecting bridges,
&c., commissioners may order, &c
50. proceeding without decree, or neglect-
ing to give security, S. J. C. may restrain,
&c.
51. wishing to raise or lower turnpike, &c.
Proceedings.
52- Parties disagreeing as to alterations, either
may appeal to commissioners.
53. Selectmen, &c., may request that way be
raiseil or lowered.
54. Commissioners may decide upon necessity
of raising or lowering ways.
55. Corporation may, under direction of com-
missioners, alter course of higliways, &c.
sn. may by consent alter course of turnpike,
&c.
57. Commissioners may authorize laying out
ways across railroads. Expenses.
Chap. 6S.]
RAILKOAD CORPORATIONS.
349
Section
is. >i'utice to corporation. Maimer of construct-
iu<^ croBsiiig.
59. Commissioners may authorize Bclectmen,
&i*., to lay out way across railroad.
00. OtliLT duties of corporation at crossings,
(il. Kepairs of bridtjes at crossings.
62. Jurisiii.iiou in cases of obstructions by
railroads to be in county conmiissionerB.
d'i. S. J. C. may euloree decisions.
CliOSSlXGS IN I'KIVATE LANDS.
W. Commissioners may establish crossings
wliere railroad .separates lauds.
(>5. may alter such crossings.
00. not to order unless corporation liable to
mjiintaiu. Surety lor coats.
DAMAGES AT CROSSINGS.
07. Corporation liable to towns for expenses
incui-red by neglect at crossings.
OS. liability of, for obstructing ways, &c.
09. Towns, Ac, subject to damages, may re-
cover of corporation if liable.
PURCHASE OF TURNPIKES.
70. Turnpike corporations may assign fran-
chises to railroad corporations.
71. Assignment to be with consent of conunis-
fiioncrs, &c.
73. Damages, how estimated.
DRAWBRIDGES.
73. Corporation to provide superintendent of
drawbridge.
74. Duties of superintendent.
75. of commanders of vessels.
70. Time allowed tor trains.
77. Certidii rights not affeeted.
78. Pentdty for obstructing superintendent, Ac.
79. for impairing bridge, obstructing draw,
&c
60. for injuring railroad bridge, &c.
m.
90.
91.
93.
9i.
95.
90.
97.
98.
09.
100.
REGULATIONS FOR OPERATING ROAD.
Brakeraan to every two cars.
Hear car of freight trains to have brake and
brukemau.
liell to be attached to locomotive engines
and rung, &c.
Sign-boards to be erected at crossings.
at travelled places upon petition of select-
men, &(_:
Cost of application.
Gates, &c., may be erected, if necessary.
Same subject. Decision of commissioucrs
to bo complied with. Costs.
Proceedings in such ease in Boston.
Selectmen, Ac, may make request for flag-
man at crossings. Proceedings.
Penalty for neglect to comply, &c.
Penalty on agent, &c., for neglect.
Comniissiouers may alter gates at cross-
ings.
Engine to be stopped within five hundred
feet of crossing.
Penalty on enginemen.
on engineers, firemen, Ac, for negligence.
on person having control of passenger
train for carelessness.
Liability of cori)oration when life of a pas-
senger is lost by negligence, &c.
when life of person not a passenger, »&c.,
18 lost.
Indiirtments.
Duty of corporation when liie is lost.
30
Section
101. Corporation liable for damages by fire from
engines. May insure.
PENALTIES FOR OBSTRUCTING ROAD, &C.
102. Penalty for being on track.
103. for driving cattle upon railroad.
104. lor neglect in suilering cattle to go upon
railroad.
105. for obstructing carriages or injuring rail-
roads.
106. and endangering life.
107. lor obstructing engines, &c.
108. for obstructing with intent, &c.
109. in favor of corporation, how recovered.
ACCOMMODATIONS FOR PASSENGERS.
TOLLS, &C.
110. Corporation to furnish accommodations for
passengers. Penalty.
111. to furnish checks.
112. may establish tolls subject, A-c.
113. Penalty lor Inuulnlcul evasion, Arc, of tolls
or fare.
RELATIONS OF CONNECTING ROADS.
114. Corporations to forward goods to connect-
ing roads, &.C. Penalty.
115. wliose roads unite, may contract for trans-
portation, &c. Prolits regarded as mcome.
116. owning road liable lor damages, &c.
117. shall transport passengers, &c., for each
other. If they cannot agi i-e, commission-
ers to be appointed.
118. When roads terminate in same place, &c.,
each shall furnish depots, Xc. If they do
not agree, commissioners may be appointed.
Compensation of commissioners.
119. Ko motive power to run ua road without
consent.
BONDS AND MORT ;AGES.
120. Corporations may issue bonds for funding
floating debt, &c.
121. Bonds to be approved.
132. binding though sold bi low par.
12^3- Mortgages to include bonds previously
issued, &c.
124. Trustees entitled to poesession may con-
tract with corporation to operate road.
Conditions.
125. to cjdl annual meetings of bond holders
and make return to secreiary.
126. if they do not, h^nd holders may e^iU
meeting.
127. election and confirmation of.
128. Equity jurisdiction of S. J. C.
129. ilortgage, «itc., of road to commonwealth.
Terms.
130. what property bound >'y.
131. to be recorded.
RETURNS AND M I'ORTS.
133.
"joks to inspection
lure. To furnish
of.
ents, &c.
state reasons.
ing.
Corporation to submit '
of committees of legi- 1
annual report. Contoi t
13.3. Report to state fatal a.-
134. if not full, directors t..
135. penalty for not fnrni
136. Secretary to transmit i ports, and furnish
abstract to legislature. '. c.
137. Special report on comph'tiou of road.
RIGHTS OF COMMONWEALTH.
1.38. State may purchase railroad after twenty
years.
350 RAILROAD CORPORATIONS — ORGANIZATION, MEETINGS, STOCK. [ChAP. 63.
horse railroads.
Section
139. Uorse railroads excepted.
140. time of construction of.
HI. Penalty for evasion of tolls, ftc.
142. Horse cars to stop at crossiugs of steam
railroads. Penalty.
>
Sei^tiox
m:J. Corporation to furnish report. Form and
contents of.
144. Penalty for neglect.
145. Secretary to furnish blanks.
Uaiiroai corpo- SECTION 1. Railroafi companies incoi7)oratecl iinrler the authority of
oi'^fe"*' P"*"'^'"^ this commonwealth shall liave the powei-.s and priviloues, and be suhicct
]£.' s. iii, § 45. to the duties, liabilities, and other provisions, contained in this chapter,
so far as the same are consistent with their respective charters.
Or.'anizatiou
*»f officers, &c.
II. S. :i'J, § 4i).
SalarieJ officers
not eligible as
directors.
1S40, «:!, §§ 1, 2.
ORGANIZATION, OFFICERS.
Sect. 2. The immediate government and direction of the affiiirs of
every such corporation shall be vested in al)oard of not less than five<li-
rectors chosen in the manner herein after jn-ovided, who shall hold their
offices until others are elected in their jilaces. The directors shall
elect one of their number to be president of the board and of the cor-
poration; and they may choose a clerk, who shall be sworn, and a
treasurer, who shall give bonds to the corporation in the sum required
by the by-laws for the faithful discharge of his trust.
Sect. .3. With the exception of the president, no officer or agent
who receives a salary or stated periodical compensation for his services
from a coqjor.ition to which the credit of the state has been loaned, shall
while such liability of the state continues be eligible as a director.
Meetings,
called.
K. S. .39, §
Votes.
K. S. :i9, §
1843, OS, §
how
Proxies.
IM!, (is, §
1858, 76, §
51,3.
1.
MEETINGS, VOTES.
Sect. 4. Meetings shall be called and notified in the manner pro-
vided in the by-laws.
Sect. 5. At all meetings each member shall be entitled to one vote
for each share held by him : provided., that he shall not be entitled to a
vote for any shares beyond one-tenth part of the whole number of .shaves
of the stock of the corporation. No vote shall be given upon shares
owned by the corporation or pledged in any form to or for its benefit.
Sect. 6. No proxy shall be valid unless executed and dated within
six months previously to the meeting at which it is used ; and no ])cr-
son shall as proxy or attorney cast more than fifty votes, unless all the
shares so re])resented by him are owned by one person, and no officer of
the corporation shall as proxy or attorney cast more than twenty votes.
Certificate of
stock subscrib-
ed, to be iiled.
1852, 303, § 1.
Stock not to be
issued at less
than par.
1862, 303, § 2.
Assessments,
bow made and
collect/!rt.
R. S. 30, i S3.
CAPITAL STOCK, ASSSSSHENTS, &C.
Sect. 7. No corporation chartered subsequently to the twentieth
day of June in the year eighteen humlred and fifty-two shall begin to
build its road until a certificate is filed in the office of the secretary of
the commonwealth, subscribed and sworn to by the president and a
majority of the directors, stating that all the stock named in its charter
has been subscribed for by responsible parties, and that twenty per cent,
of the par value of each and every share thereof has been actuallj' paid
into its treasury.
Sect. 8. No corporation chartered subsequently to said twentieth
day of June, or obtaining since that date an extension of time for the
construction of its road, shall issue stock for a less sum to be actu:iily
j)aid in on each share, than the i>ar value named in its charter.
Sect. 9. Tiie president and directors ma}' from time to time make
such equal assessments on all the shares in the corporation as they ('eem
expedient and necessary for its purposes, and may direct the same to be
Chap. 63.] railroad corporations — charters. 3-"1
paid to the treasurer, who shall give notice thereof to the stockholders. 13 Met. sis.
If a stockholder neglects to pay his assessments for thirty days after 'ie"^',lj^ri.
notice from the treasurer, the directors may order the treasurer after 2Gray, 2?7.
giving notice of the sale to sell such shares by public auction to the
highest bidder ; and the same shall accordingly be transferred to tlie
purchaser. If the shares of a stockholder do not .sell for a sum sufficiiMit
to pay his assessments with interest and charges of sale, he shall be lia-
ble to the corporation for any deficiency; if such shares .sell for more, he
shall be entitled to the surplus remaining ; but no assessment .shall be laid
upon the .shares to a greater amount than the sum at which they shall
be h.xed by the charter or by vote or agreement of the stockholders.
Sect. 10. When a subscriber or shareholder has paid nothing u])on if assc-sme -.ts
his shares after thirty days from the time when an a,ssessment has be- "[,':ir"s'Ii"!v !]■■
come due, his shares may be declared forfeited by the directors, who fon.it.fi. &c.
may transfer them to any responsible person who subscribes for the '^'-' *'"■''§' •
same.
Sect. 11. The shares in the capital stock of such corporation shall Sh.irce pcrsonni
be deemed personal estate, and may be transferred by a conveyance in '|','!J^1[;' '^■''■""'"
writing, recorded eitlier by the treasurer in books to be kept in his office K. S. 3>.', § 52.
or by an officer duly authorized by the directors in books to be kept at
such other place as they may ajipoint. When recorded in such other
place, they shall within ten days thereafter be also recorded in the books
kept by the treasurer; and no conveyance of shares shall be valid
against any other persons than tlie grantors or their representatives,
unless so recorded. On making the transfer a new certificate shall be
gi-anted.
Sect. 12. A corporation may hold stock in a telegra])h company Corporation
whose line of telegraj)h connects two or more places on the line of its j!rtd'('"mph°°''
road, to an amount not e.vceeding two hundred dollars for each mile so companies.
connected. i>^%'M,^8.
CHARTERS.
Sect. 13. Xo petition for a charter for a railroad coi-poration shall Petitions for
be acted upon unless it is accompanied with a map of the ]iro)iosed route Loimpaitk i'by
projected upon an apin-oiiriate scale ; and with a profile of the route report of e.-.-
projected with a vertical scale comparing witli the horizontal scale in I;, s. 39, § 411.
the ]iro]iortion often to one; nor unless it is accompanied and sujjport- ii*i''. i3i. § -•
ed by the report of a skilful engineer, founded on actual examination of
the route, and by other jiroper evidence showing the character of the
soil, the manner in whicii it is proposed to construct the road, tiie gen-
eral |jrotile of the surface of the country through which it is ])roposed to
be made, the feasibility of the route, and an estimate of the probable
expense of construction.
Sect. 14. Plans and profiles presented to a committee of the legisla- Plans, &c.t:i he
ture in the hearing of a petition tor such a charter shall be jilaced by |i|j|™ry!" '"""^
them in the state library. I'^'s, no, § 1.
Sect. 15. No petition shall be acted upon until notice of the pend- Petitions not to
ency thereof has been published according to law, whicli notice shall !n,tji notki"ie.
designate the intended route with such certainty as to give reasonable {'■^i;^^<,fi''.-
notice to all persons interested therein that their rights may be affected 11^12.' ~'*^ '"'
by the granting of the petition, and that they may have an opportunity
to ap]iear and object thereto; but the provisions of this section and of
section thirteen shall not prevent the legislature from requiruig surveys,
plans, and further estimates.
Sect. 16. Every charter shall confine the road within the limits indi- Roads to he
cated by the notice required in the preceding section, shall s]iecify the sp'',l"flelif"'^
several cities and towns through which the same may jmss, and shall it. s. 39, §48.
otherwise designate the route on wjiieh the road is authorized to be
inaile with as much certainty as the nature of the case will admit.
352
RAILROAD CORPORATIONS LOCATION, DAMAGES. [ChAP. 63.
Width of road,
and materials.
K. S. 311, § 54.
1833,351, § 1.
9 Met. 553.
1 Gray, :!5r.
4 Gray, 302, 304,
Location to be
tiled.
11. S. .33, § 75.
4 Oush. nil.
1 Gray, .340.
2 Gray, 574.
LOCATION OF ROAD.
Sect. 17. A eoqjoration may lay out its road not excccilinij five rods
wide; and for the purpose of cuttings, embankments, ■■ind procui'ing
stone and gravel, may within the limits of its charter in the manner
herein provided take as much more land as may be necessary for the
proper construction and security of the road, or as may be at any time
necessary for depot or station purposes.
Sect. 18. The corporation shall file the location of its road within
one year with the commissioners of each county through which the
same passes, defining the courses, distances, and boundaries, of such
portion thereof as lies within each county.
Corporation
may piiri.-hase
or take laud, ite
K. S. 39, § 53.
1853, .351, § 1.
9 Met. 553.
3 Cush. 82.
4 Cush. 4119.
1 Gray, 337.
5 Gray, 33.
.See §21.
Laud for depot
to be taxed.
1S53, 351, § 3.
4 Met. 601).
TAKING LANDS, &C.
Sect. 19. A corporation may purchase or otherwise take land or
materials necessary for making or securing its road and for de]iot and
station puri)oses. If it is not able to obtain such land or materials by
an .agreement with the owner, it shall pay such damages therefor as the
county commissioners estimate and determine. Land ami matei'i.ils
without the limits of the road shall not be so taken without the pennis-
sion of the owner, unless the commissioners on the a]i)ilicati(in of the
corporation and after notice to the owner first prescribe the hmits within
which the same may be taken.
Sect. 20. Land so taken or purchased for depot or station purposes
without the limits of the road shall not be exempt from taxation.
Damages.
K. S. 39, § 30.
1S49, 133.
3 Met. 3>*0.
9 Met. 533.
3 Cush. 81, 107.
4 Cush. 4liU.
10 Cush. 3S3.
2 Gray, li, 235.
5 Gray, .33.
7 Gray, 390.
See §§ 22, 2ii, 40.
Either party
may have jury.
E. S. .39, § 57.
1*41, 125, §§ 1, 3.
1847, 181, § 1.
21 Pick. 25S.
13 Met. 310, 449,
479.
3 Cush. 58.
4 Cush. 291.
1 Gray, 72.
Proceeding's
when laud lies
in a(UoiniDg
counties.
1863, 5, §§ 1, 2.
Guiirdi.ius, &c.
may release
damages.
U. S. 39, § 93.
Damages, how
;ws -.-ed where
el-iiiuauts have
DAMAGES.
Sect. 21. The corporation shall pay all damages occasioned by lay-
ing out and making and maintaining its road, or by taking any laml or
materials as provided in section nineteen ; and such damages shall upon
the application of either party be estimated by the commissioners in the
manner provided in laying out highways ; and when it is intended to
take land or materials, ajiplication may be made before the actual taking
and appropriation thereof
Sect. 22. Either party if dissatisfied with the estimate made by the
commissioners may, at any time within one year after it is completed
and returned, ap]ily for a jury to assess the d.amages. U]ion such appli-
cation the prevailing party shall recover legal costs, and the proceedings
thereon shall be the same as is provided for the recovery of damages in
the laying out of highways ; but no jury shall be competent to alter or
reverse any order made under section forty.
Sect. 23. Where land owned by one person lies contiguously in dif-
ferent counties, applications for damages under section twenty-one may
be made by the owner of the land to the commissioners of eitiier of such
counties; and the commissioners of the county to whom application is
first made shall have exclusive jurisdiction with like ])Owers and duties
as set forth in said section and section forty ; and either party may ap-
]>\y for a jury as provided in the preceding section, which jury shall be
from the same county as the commissioners, and shall estimate such
damages the same as though the land lay entirely in one county.
Sect. 24. When the lands or other property of a person under guar-
dianship or lands held in trust are taken for the use of a railroad, the
guardi.in or trustee may release all damages in the jiremises in like
manner as if the same were held in his own right.
Sect. 25. When persons having a claim for dam.ages .sustained in
their property by the laying out or alteration of a railroad have different
or separate interests in the property, so that an estate for life or ibr a
Chap. 63.] railroad corporations — damages. 353
term of years in the s.Tme belongs to one person and the remainder or different inter-
reversion in fee to another, entire damages shall be assessed in the same issij 290, §§:,2.
manner as is provided in other cases, without any apportionment thereof;
which damages shall be jiaid over and disposed of in the manner pro-
videil in sections seventeen and eighteen of chapter forty-three in rela-
tion to damages assessed in like cases in laying out highways.
Sect. 26. Where lands are mortgaged, lioth mortgagors and mort- Damages, how
gagees, in addition to their risrhts under the mortifao'e, shall have the "f"™ '!:,'^ '"' '^'^
same powers, rights, and privileges, and be subject to the same liabilities lands,
and duties, as are created and provided in this chapter for land owners If^''*''^^'
in cases of damages arising under section twenty-one ; and all petitions
for the estimation of such damages shall state all mortgages known by
the party ])etitioning to exist upon the premises to be adjudicated upon.
Mortgagors and mortgagees may join in any such jietition, and the tri-
bunal to which it is presented shall order the petitioner to give notice
thereof to all ]iarties interested as mortgagors or mortgagees by serving
each of them, fourteen days at least before the time of hearing, with an
attested copy thereof, and the order thereon that they may appear at
said hearing and become parties to the proceedings.
Sect. 27. "When mortgagors or mortgagees commence or become Samo subject,
parties to proceedings upon a petition for such damages, entire damages J*"^' ~^^' ^^ ''
shall upon final judgment be assessed for the property taken, and such
portion tjiereof ordered to be paid to every mortgagee, being a party, in
the order of his mortgage, as is equal to the sum then unpaid thereon,
and the balance to the mortgagor ; and separate judgment shall be en-
tered accordingly for each mortgagee, who shall hold his judgment in
trust, first with any proceeds realized thereon to satisfj^ his mortgage
debt, and after such debt is in any way satisfied, to assign the judgment
or pay over any balance of proceeds to the mortgagor or other person
entitled thereto.
Sect. 28. No application for damages shall be sustained against a Application for
coiiioration by the owners of a private way, by reason of any obstruc- viUJI'^f'''*. '" p""
tion thereto occasioned by the railroad crossing the same, unless the k- s. .ly, §'n.
a])plication is made within one year from the time when the way is so ■* '^"^•i- ""• "■*•
obstructed.
Sect. 29. Xo application to the commissioners to estimate damages fordamases
for land or property t:fken, shall, excejit as provided in the following 'vithiu'thrce
section, be sustained unless made within three years from the time of years.
taking the same. rblk^i.'^'
Sect. 30. Where suits are pending or are hereafter brouirht in which ? ^"^I'- ^-
the right of such corporation to lay out and construct its road on any 2 Gray," 2.32.
particular location is drawn in question, the time for applications to the Time extended,
commissioners for the ascertaining of damages caused by the taking of ^^.^^''^P^ding,
land or other property in and upon s^ich location may be made at any I'^*- 1"' up-
time within one j-ear after the final determination of such suits upon the '
merits : ^irovided, that such suits, if not now pending, are brought within
one year from the time of such taking, or are brought for the purpose of
trjing the same right which was drawn in question in some former suit
now pending or brought as aforesaid, and which failed for want of juris-
diction, defect of form, or other like cause, not deciding the merits of
the controversy, and are brought within six months after such deter-
mination of a former suit.
Sect. 31. If a party makes application for the assessment of his dam- i^pon aBate-
ages within the time limited by law, or for a jury to assess the same, or JJJ-o'J^dbii"'"^
is a party to such apjilieation for a jury by any other person, and the may be had
petition or other proceeding is quashed, abated, or otherwise avoided yelr.™ ""^
or defeated, for any inaccuracy, irregiilarity, or matter of form ; or if is*?, i8i,§2.
after verdict for such applicant or other party the judgment is arrested
or reversed on a writ of error, or the proceedings quashed on certiorari;,
30* 45
354 RAILnOAD CORPORATIONS — ALTERATIOX OF ROAD. [ChAP. 63.
such applicant, petitioner, or other party, may commence such proceed-
ings anew at any time within one year from such abatement, reversal,
or other determination.
Security for Sect. 32. Upon ajjplication to the commissioners by either ]3arty
requin>d ' ^"^ ' ''^ ^°^' ^'^ estimate of damages, they shall if requested by the owner require
B. S.39, §61. the corporation to give security to their satisfaction for the papneut of
1855, 9, §1. j^u (}j,^aggg a^d costs which may be awarded by them or a jury for the
land or property taken ; and if upon petition of the owTier with notice
to the adverse party the security appears to tlie commissioners to lia\"e
become insufficient, they shall require the corporation to give furtlier
security to their satisfaction ; and all the right or authority of the corpora-
tion to enter upon or use the land or other property, except for making
surveys, shall be suspended until it gives the security required.
Commissioners Sect. 33. Upou an award of damages by county commissioners or a
"'nt '''f'S "'^"^ jiu-y against a corporation on the petition of a person injured by the
tross. location and construction of its road, the commissioners, after the time
pofatioune^'^ to petition for a jury has expired, may issue warrants of distress to com-
leetinj payment pel the payment of the damages with costs and interest ; and if the
i.S47Vi59, §3. corporation for thirty days after a warrant of distress or an execution
isj5, 9, §a. ij^rjg issued against it for damages and costs for taking land or other
property, neglects to satisfy the same, all right and authority to enter
upon or use such land or projierty, except for making surveys, shaU be
suspended until it pays such warrant or execution.
S. J. C may re- Sect. 34. If u]ion the petition of an owner of land or property men-
n'oiTsVoTram^ tioned in either of the two preceding sections, it appears to the supreme
piyingwith pre- judicial court or any justice thereof in term time or vacation, that a
Vs6i^2.'^'^ '""**' coi-poration has fir thirty days neglected to comply witli any order
i»d5, 9, §3. under section thirty-two, or to satisfy any warrant or execution men-
tiiined in section thirty-three, the court or justice may by injunction or
otlier suitable process in equity prohibit ami restrain the corporation
from entering upon or using such land or property contrary to the pro-
visions of said sections.
Corporation Sect. 85. After the commissioners have made their estimate, the
dama'ies^'^^rar- Corporation may tender to the owner of the land or other property the
ty applying for aiiiount of damages estimated, in full satistaction thereof. If the owner
costs'uu'iess refuses to receive the same, with costs to be taxed to tlint period, and
&c. applies for a iury, ho shall, unless he recovers upon the final hearinsi a
s Cusii. 218." greater amount of damages than the sum tendered, pa)^ all costs caused
by the application and arising after tender. If the corporation a]:)plies
for a jury, and upon a final hearing the damages as estimated by tlu' com-
missioners are not reduced, it shall pay all costs caused by the apjilication.
In Boston, Seot. 36. If a corporation by virtue of its charter takes laiul or
assesseii by'"' Other property within the city of Boston, the board of aldermen of said
board of alder- city shall, except as provided in the following section, have all the jiower
K°s'. 39, §G3. of commissioners in like cases; and like proceedings shall be had before
1854, 448, § 33. g^id board for the purpose of ascertaining, securing, and obtaining pay-
ment of, damages, and subject to the same limitations, as upon au a])pli-
cation to the commissioners.
Jury In such Sect. 37. Either party, if dissatisfied with the estimate of damages
K**!' 30 5M. t'^"^ made by the board of ahlei-men, may ap]5ly for a jury at the next
1854, 4is, § 3:i. tenn of the superior court for the county, after the estimate is made
l^ray" 302, 301. known to the parties; and thereupon the same ]n-oceedings shall be had
as in case of estimating and enforcing payment of damages for lajdng
out ways within said city.
ALTEKATIOX OF ROAD.
Corporation Sect. 38. A Corporation after having taken land fu' its road may
tion oVroad'.'^'"^ vary the direction of the road in the place where sucli laml is situated ;
Chap. 63.] railroad corporations — cOxXstruction. 355
but it shall not locate any part thereof without the limits presciibccl by Proceedings
the act of incoii)oration. It shall bel'ore the expiration of the time h. s. 39i §7.i.
required bv law for com|)letin<T the road tile the location of the difierent }'*&*'■"'*,' L*^-
]iarts thereoi where sucli variations are made with tne county commis-
sioners, or if in the city of Boston with the board of aldermen, and tlie
time allowed for comjileting the whole road shall not be extemled in
consequence of such variation.
Sect. .39. Every corporation shall be liable to the owners of lands Dnmages in
taken tor inakiii<;sueh variations, for all damafres occasioned thereby, to i"''s.":i9,'§ ro.
be recovered in the manner herein before provided for recovering such i tiray, asr.
damages.
COXSTEUCTIOX.
Sect. 40. At the time of estimating damages to land owners under commissioners
section twenty-one, the commissioners shall in addition thereto order "auumratsr&c.
the corporation to construct and maintain such endjankments, drains, iwi, las, §§ 1,3.
culverts, walls, fences, or other structures, as the}' judge reasonable for ij cusi!'. 431!
the securitv and benefit of such owners, and prescribe the time and i^"?/''''*;
,.-',. ■ • »i See §§22, Si.
manner 01 making or repairing tlic same.
Sect. 41. If the corporation neglects to comply with snch order, the .s.j.c. may en-
land owner or his assigns interested in its execution may apply to the ||'i',e™;^or'owner
supreme judicial court, which may grant all processes necessary to en- may recover
force the specific pcrfbrmance thereof Or if it ap]iears that the corpo- a,.r"B.
ration for more than forty-eight hours after notice of such neglect given Jl^tl'^w'^^'
in writing to the jiresident or superintendent neglected to commence ncu'sh. «!.
tlie work required to be done, or thereafter unreasonabl)' delayed to ' '^"^^' "'■*■
complete the same, the person so interested may maintain an action of
tort against the corporation, in which he may recover double the dam-
ages sustained by him by reason of the neglect.
Sect. 4'I. When the owner of land through which a railroad con- Corporation to
structed prior to the seventeenth day of Aji'ril in the year eighteen J"ruf«r«s"iu""
hundred and forty-one passes, has not received all damages assessed to certain cases.
him, or has not agreed to maintain suitable fences upon such road, '^ > -'^ •
upon the application of the owner or of the mayor and aldermen
or selectmen of the city or town, the county commissioners may
require the coqioration to make and maintain fences suitable for
the benefit and security of the land owner, and of travellers u])on the
road.
Sect. 4.3. Each coi-poration shall erect and maintain suitable fences, to construct
with convenient bars, gates, or openings therein, at such places as may ri'.'rs a^sdust""'
reasonal)ly be required, upon both sides of the entire length of any rail- '^"W'C;^
ri)ad which it shall have constructed subsequently to the sixteenth day '*■' '
of ]May in the year eighteen hundred and forty-six, except at the cross-
ings of a turn|nke, highway, or other way, or in places where a con-
venient use of the road would be thci'eby obstructed ; and shall also
construct and maintain sufiicient barriers at such places as may be
necessary, and, where it is practicable so to do, to prevent the entrance
of cattle ujion the road.
Sect. 44. A coqjoration unreasonably neglecting to comply with penalty, &c.,
the provisions of the jjreceding section shall for every such neglect ]84(°27i';'§'4.
forfeit a sum not exceeding tAvo hundred dollars for every month isss, 350, §5.
during which the neglect continues ; and the supreme judicial court, or
any justice thereof, either in term time or vacation, may by injunction
or other suitable ju'ocess in e(]uity com]>el the cor|)oration to comply
with such jirovisions ; an<l u))on such neglect, may restrain and prohibit
the coqioration from crossing any turn])ike, highway, or town way, or
using any land, until said jirovisions are complied with.
Sect. 4.5. After a corporation has by virtue of its charter taken |*° 4™'of
land or other property for the purpose of its road, it shall, before pro- laudj&cii taken.
356
RAILROAD CORPORATIONS — CROSSING HIGHWAYS. [ChAP. 63.
R. S. 39, § fiO.
IMS, 3i7, § 2.
2 Gray, 5"4.
Hij^hways not
to be obstruct-
ed.
K. S. 3i), § 06.
7 Mot. 72.
3 Cush. !0S.
2 Gray, Sii, 405.
Rjiilroads
crossiiii^ high-
way, .Vc, to
pass over or
under.
ISlli, -VI, § 1.
7 Cush. 407.
Corporatiou
wishing to
raise or lower
higlnvay, Ac.,
to obtain de-
cree, ttC.
K. S. 3'.l, § 67.
1853, 350, § 1.
2.3 I'iuk. 320.
3 Cush. 110,117.
9 Cush. 1.
2 Grav, 56, 405.
See §§ 5U, CO.
obstructing
higiiways, ueg-
lectiug bridges,
&c., cummis-
siouers may
order, &c.
1853, 350, §§ 2, 3.
proceeding
without decree,
or neglecting to
five security,
. .1. C. may re-
strain, &c.
1855, 350, § 3.
wishing to
raise or lower
turnpike, &c.
R. S. 3i>, § 07.
eeeding to construct the road, furnish a plan of the lan<l to the owner,
and, if requested by the owner or occupant, fence the same ; and upon
demand made by the owner of such other property within three years
from the talcing of the same, such corporation shall within thirty days
furnish him with a plan or description thereof in writing. If such
plans or descrijitions are not so furnished, all the rights of the cor-
poration to enter u])on or use such land or other projierty, except for
making surveys, shall be suspended until it has so delivered a descrip-
tion or plan.
CROSSING HIGHWAYS, &C.
Sect. 46. If a railroad is laid out across a turnpike road or other
way, it shall be so made as not to obstruct the same.
Sect. 47. A corporation which constructs its road across a turn-
pike, highway, or town way, shall construct it so as to cross over or
under the same ; if over, a sufficient sjnice shall be left under the rail-
road conveniently to accommodate the travel upon the turnpike or
way ; if under, the corporation shall build and maintain such bridges
witli suitable ap]iroaches thereto as in like manner to accommodate the
travel ujhjh the turnjiike or way over the crossing.
Sect. 48. Such corporation may raise or lower any highway or
town way for the purpose of having its road pass over or under the
same ; but before proceeding to cross, alter, or excavate for the ])ur-
pose of crossing a highway or town way, it shall obtain from the
county commissioners a decree prescribing what alterations may be
made in the way, and the manner and time of making the alterations
or structures the commissioners may require at the crossing ; and
before entering ujion, excavating, or altering the way, shall give secu-
rity, satisfactory to the commissioners, to the city or town in which the
crossing is situated, that it will faithfully comply with the requirements
of the decree to the acceptance of the commissioners, and indemnify
the city or town from all damages and charges by reason of any failure
so to do.
Sect. 49. If upon application of the mayor and aldeiTuen or select-
men of any place to the county commissioners it ajipears that the cor-
poration crosses with its road a highway or town way in such place so
as to cause an obstruction thereto, or refuses or neglects to erect or
keep in proper repair any bridge or other structure required or neces-
sary at such crossing, the commissioners, after due notice to the cor-
poration, may pass a decree prescribing what alterations, structures, or
repairs it shall make at the crossing, and the time within which they
shall be made ; and shall order the corjioration to pay the costs of tlie
a)>plication. They may further order the cor]Joration to give like secu-
rity, as provided in the preceding section, for the faithful performance
of the requirements of the decree and the indemnity of said place upon
any failure in such ]ieiformance.
Sect. 50. If it is made to appear to the supreme judicial court, or
any justice thereof, in tenn time or vacation, upon the petition of the
maj'or and aldermen or selectmen of any place, that a corporation has
excavated or altered a highway or town way without oljtaining the
decree and giving the security required by section forty-eight, or has
neglected for fifteen days to give security as required by the jireceding
section, the court or justice may, by injunction or other suitable pro-
cess according to the practice of courts of equity, restrain and prohibit
the coiporation from entering upon, altering, excavating, or crossing
the way, until such decree is obtained or the security given.
Sect. 51. A cor])oration may raise or lower any turnpike for the
purpose of having its road pass over or under the same; but before
proceeding to make such alteration, it shall in writing notify the presi-
Chap. 63.] railroad corporations — crossing highways. 357
■ *
dent or clerk of the turnjiiko corporation, which witliin tliirty da3'S m Pick. 226.
after receiving tlie notice shall notify in writing the railroad corpora- 9 c"sh. V.*"' "'"
tion of the alterations, if any, which tliey may require to have made - Gray, so, 465.
therein for such purpose.
Se<'t. 52. If the y)arties do not agree what alterations are necessary, rurtics disa-
the railroad corporation, or the pro|)rietors of the turn]jikc, may apply Jitm'itfui's,*''
to the county commissioners at their next regular meeting after the '''""''• '"">' »P-
exj)n-ation 01 said thnty days, to determine wliether any and wliat sioncrs.
alterations shall be made, and their decision shall bo final. If the I'-S. 39, §os.
corporation unreasonably neglects to make such alteration as the
commissioners order, the proprietors shall have tlie same remedies
as are prescribed for the recovery of damages caused by making a
railroad.
Sei't. 53. If the mayor and aldermen or selectmen of a city or .Selectmen, &c.,
town wherein a turn|iike, higlnvay, or town way crossed liy a railroad Ihatwav'be'
on a level therewith is situated, are of ojjinion tliat it is necessary for ridsed or low-
the security of the public that the turnpike or way should be raised or isis.'aa.
lowered so as to pass over or under the railroad, they niav in writintr ?S"^!'- !'?■
. ., ' . . ^, -1 J ... ■ • "i r oCuBh. 4;i4.
request the corporation owning the railroad so to raise or lower such
turnj)ike or way. If the corporation neglects or refuses so to do, the
maj'or and aldermen or selectmen may apply to the county com-
missioners to decide upon the reasonableness of the request.
Sect. 54. If the commissioners, after due notice and hearing the Commissioucrs
parties, decide that such raising or lowering is necessary for the secu- on'L^essity'of
rity of the jniblic, the corporation shall comply with the decision and riusiu-,' or low-
pay the costs of the a] 1] plication. If the commissioners decide that the i™2f2".'''^'
alteration is not necessary, the mayor and aldermen or selectmen shall ?,*f.~'']'^;,|,
pay the costs. If the corporation unreasonably refuses or neglects to ii Cush.' 424!
carry into effect the decision of the commissioners, the mayor and * ^"'"J' ■*''^-
aldermen or selectmen may proceed to do it, and may in an action of
tort against the corporation recover all charges and expenses occa-
sioned by making the alteration.
Seit. 55. A corporation may alter the course of a highway or town corporntion
way for the jiurpose of facilitating the crossing of the same by its "rtion'ofcom-
roa<l or permitting its road to ])ass at the side thereof without crossing, missiouers, al-
npon obtaining a decree of the county commissioners prescribing tlie iril'hwnys.^fec.
manner and time of such alteration. Before granting the decree the iwu, isii, §1.
commissioners after due notice to the town in which the way is situated
shall decide that the alteration will not essentially injure the way. The
coqioration shall pay all <lamages occasioned to private property by the
alteration as in case of land taken for its road.
Sect. 56. A corporation may with the consent of a turnpike or may by con.
canal corporation, alter the course of a turnjiike road, canal, or feeder course*of turn-
to a canal, where the same interferes with the convenient location of pike, .fee.
•.. 1 1S3;,220, §1.
Its road. ' "
Sect. 57. If after the laying out and making of a railroad the pub- Commissioners
lie convenience and necessity require a turnpike road or other way to "yJug"out"waye
be laid out across it, such road or way may be so laid out and estab- across raii-
lished when the county commissioners so authorize and direct ; and .all Expenses,
expenses of and incident to constructing and maintaining the road or JJ-.^-S if; ,
way at such crossing shall be borne by the county, city, town, or corpora-
tion, owning the same.
Sect. 58. The commissioners before so laying out any way across a Koticetoearpo-
railroad shall cause due notice to be given to the corporation that it Jf'coS'Btnictln"'^
may be heard in the premises ; and after hearing all jiarties interested crossing,
they may layout the same, directing whether the crossing shall be over, iJef/lgr'/jjl,
under, or at a level with, the railroad, but not permitting it to be at a ■»> ^■
level unless public necessity so requires. If the way shall pass over the
railroad they shall determine and specify in what manner the bridge
358
RAILROAD CORPORATIONS — CROSSINGS IN PRIVATE LANDS. [ChAP. 63.
Commissioners
may autliorize
sclcctmeu, «fcc.,
to lay out way
across railroad.
185?, 28?, §§ 3, 5.
Other duties of
corporatiou at
crossings.
185?, as?, § 6.
Repairs of
bridges at
crossings.
U. S. 3!>, § ?2.
laili, 271, § 1.
7 Met. 70.
:( CusU. 107.
7 Cusll. 490, 497.
.Turisdietiou in
cast's of ob-
structions.
1849, 222, § 4.
4 Cush. 68.
2 Gray, 54.
.S. J. C. may en-
force decisions.
1819, 222, § 5.
0 Cush. 424.
7 Cush. jDli,
10 ('usb. 12.
2 Gray, 4iiO.
necessary for the crossing shall be constructed. Such ways shall be
so made as not to obstruct or injure the railroad.
Sect. 59. The mayor and aldermen or selectmen, before laying out
a M'ay across a railroad, shall apply to the county commissioners for
peniiission so to do. The commissioners shall cause due notice of the
application to be given to the corporation owning the railroad ; and
after hearing the parties interested they may authorize the mayor and
aldermen or selectmen so to lay out the way, and shall require it to be laid
out and constructed in accordance with the provisions of the preceding
section. They shall give special authority permitting it to be laid out
upon a level with the railroad when in their opinion public necessity so
requires.
Sect. 60. A coi-jioration whose road is crossed by a turnpike or
other way on a level therewith, shall at its own expense so guard or
protect its rails by jilank, timber, or otherwise, as to secure a safe and
easy passage across its road ; and if in the o]>inion of the county com-
missioners any subsequent alteration of the turnpike or other way, or
any additional safeguards, are required at the crossing, they may
order the corporatiou to establish the same as provided in section
forty-eight.
Sect. 61. A corporation shall maintain and keep in repair all bridges
with their approaciies and abutments which it constructs over or under
any turnpike road, canal, highway, or other way.
Sect. 62. The original jurisdiction of all questions touching ob-
structions to turnpikes, highways, or town ways, caused by the con-
struction or operation of railroads, shall be vested in the county
commissioners within their resjiective jurisdictions.
Sect. 63. The supi'eine judicial court shall have jurisdiction in
equity, and may compel such corporations to raise or lower any turn-
pike, highway, or town way, when the county commissioners have de-
cided in due and legal form that such raising or lowering is necessary
for the security of the i)ublic ; and to comply with the oiders, decrees,
and judgments, of county commissioners, in all cases touching ob-
structions to such ways by railroads.
Commissioners
may I'stablish
crossings
wiiiT.' niilroad
Hejmrates lauds.
1867, 213, § 1.
may alter
Biich crossings.
1807, 213, § 2.
not to order
unless corpora-
tion liable to
ra.aiutain.
Surety for
costs,
l^os, 213, §5 3, 4.
CROSSINGS IN PRIVATE LANDS.
Sect. 64. When a railroad laid out by authority of law through
land without the consent of the owner, separates one portion thereof
from another, or from a highway or other public way, and the owner has
a right to cross the r.ailroad, if a ditlerence arises between him and the
coqjoration owning the road as to the place or manner in which he shall
cro.ss, either party may apply to the county coinmissioners to direct such
place or manner. The coinmissioners after due notice to the other
party and hearing the parties make such order in relation thereto and
the costs of the application as they may deem proper.
Sect. 6.5. If a cro.ssing is deemed inconvenient by such owner or
corporation, either jiarty may a]iply to the commissioners to alter the
same, and u]ion like notice and hearing they may make like order in
relation thereto.
Sect. 66. Unless the corporation makes the application the commis-
sioners shall not under the two preceding sections order it to con.struct
or maintain any crossing without its consent, except where it is liable
bv law or by agreement to construct a crossing for the owner of the
land; and no n]iplication under said sections shall be proceeded with
until the ap]ilicant furnishes sufficient recognizance to the county witli
sureties to tlie satisfaction of the commissioners for the payment of
costs and expenses according to theii' order.
Chap. G3.J railroad corporations — turnpikes, drawbridges. 359
DAMAGES AT CROSSINGS.
Sect. 67. A city or town may recover of the corporation whose Corporation Ua-
roaJ crosses a highway or town way tlierein, all damages, charges, and txpen'^s^cau"'^
expenses, incurred Ly such city or town by reason of the neglect or re- "' bv neglect at
fusal of the corporation to erect or keep in repair all structures required isssrasu, § 4.
or necessary at such crossing.
Sect. 08. If a cor])oration, its servants, f)r agents, wilfully or negli- liability of,
gently obstruct a highway, town way, or public street, by its engines, ways! &'c!'^''°°
tenders, or cars, it shall be liable to a line not exceeding one hundred issi, srs.
1 ,, .. 1 ji- 1S5S, 43.
dollars lor every such oflence.
Sect. C9. When a party upon the trial of an action recovers dam- Towns, &c.,
ages of a city or town for an injury caused to his person or jjroperty by aooi'^ may r™
a defect in a highway within the location of a railroad, the city or town, cSveroicorpo-
if the corporation owning the road is liable for such damages and has i^'i°"^. " ^'
had reasonable notice to defend the action, may, in addition to the
damages, recover all costs of both plaintitf :'■ 1 defendant in the action.
FITRCHASE OF TURNPIKES.
Sect. 70. When a turnpike road interferes with the convenient loca- Turnpike cor-
tion of a railroad, the turnjiike corporation may, in pursuance of a vote a"f[^i!l,',"Sv",""'^
therefor at a meeting called for the ]iur])ose, assign and transfer itsfran- ciiis"8 to rail-
chise as to the whole or part of its road to the railroad corporation, tions.""^''""^"'
Thereafter all the rights and duties of the turn])ike corporation shall isj;, 220, §2.
cease and be discontinued so far as they relate to the part of the road
so assigned, and the railroad corporation may locate its road upon any
part of the same ground.
Sect. 71. No part of a turnpike road shall be assigned or used as witii consent
provided in the ]n-eceding section, without the consent in writing of the crs'i"*?'!"''''""'
county commissioners if such part is located in a single county, or of ;'^!?,v ~r.l!' ^ '■
the superior court in one county, it it lies in two or more counties.
Sect. 72. Damages caused by taking the property of any person ^"^^^o"'' ^°'"
under the two preceding sections shall be estimated and paid as in case liir, 220, § 4.
of land taken under section nineteen.
DRAWBRIDGES.
Sect. 7.3. Every corporation shall provide for each drawbridge of Corporation to
the comjiany a steady and discreet superintendent, experienced in the fnu-mienrrf"^
manairement of vessels, who shall have full control and direction of the drawbridge,
passing 01 vessels through the draw.
Sect. 74 The superintendent sliall at all hours of the day and night Duties of super-
be reaily to open the draw, shall, having regard to the convenient and iSs™^", '§§ 2, 3.
secure passage of engines and trains and the state of the tide, decide
when and the order in which vessels may pass, allowing no unnecessary
detention ; shall give all necessary advice and furnish proper facilities
for such passing ; and shall keep posted up in a convenient place, for
the ins])ection of all persons interested, a written copy of his regulations
conforming to the provisions of sections seventy-three to eighty in-
clusive.
Sect. 75. Every commander of a vessel applying to pass such draw of command-
shall give the superintendent a true report of his vessel's draught of 1555, 4^4, §5 j/i.
water, and shall be governed by him as to priority of right when two or
more vessels apply to jiass at the same time ; he shall, unless otherwise
directed by the su]ierintendeiit, in passing go to the right, according to
the tide if jiracticable ; and except as he maybe authorized by the
superintendent shall so place his buoys, warpuig-Unes, anchors, or cables,
360
RAILROAD CORPORATIONS OPERATING ROAD. [ChAP. 63.
Time allowed
]->r trains.
Ijjj, i.H, § 4.
C-'rtain rights
not affected.
:>so5, 43-1, § 4.
Penalty for ob-
structing 8U-
Tjerintendent.
1855, 434, § 5.
for impairing
brirlge, ob-
structing draw,
&c.
1855, 434, § 0.
for injuriniir
railroad bridge,
&c.
1855, 434, § 7.
as neither to interfere with other vessels nor obstruct the bridge ; and
he shull be allowed a reasonable time for his vessel to pass.
Sect. 7(3. Railroad trains shall be allowed fifteen minutes to cross a
draw before and after their table time for beinsr due, and a further rea-
sonable time to pass shall be allowed to any ai)proaching train.
Sect. 77. Nothing contained in the four preceding sections shall
abridge the rights of any such corporation as they existed on the twenty-
first day of May in the year eighteen hundred and fifty-five.
Sect. 78. Whoever obstructs the superintendent in the performance
of his duties or violates any provision of the five preceding sections
shall pay a fine of not less than three nor more than fifty dollars.
Sect. 79. Whoever breaks, defiices, or imjiairs, any such bridge, or
wharf, or pier appurtenant thereto, or unnecessarily ojjens or obstructs
the draw without the consent of the superintendent, or without such
consent makes fast or moors any scow, raft, or other vessel, to such bridge
witliin wake of the draw, shall pay a fine of not less than three nor
more than twenty dollars.
Sect. 80. Whoever wilfully injures or damages any railroad bridge,
wharf, or pier, or wilfully disturbs or hinders the superintendent in the
discharge of his duties, shall forfeit for each ofieuce a sum not less than
fifty nor more than one hundred dollars, and be further liable in damages
to the corporation against which the ofience is committed.
Brakeman to
every two cars.
IS)?, 220, § S.
Rear car of
freight trains to
liavo brake aud
brakeman,
1S4'J, 101, § 1.
Bell to be at-
tached to loco-
motive engines
aud rung, <fec.
K. S. 39, § rs.
1S59, 125, § 3.
2 Cnsh. 539.
10 Cush. 502.
Sign-boards to
be ere(.-ted at
crossings.
K. S. 39, §r9.
1S49, 222, § 2.
1M9, 125, § 1.
2 Cush. 539.
10 Cush. H'M.
7 Gray, 100.
at travelled
places, upon pe-
tition of select-
men, &c.
Costs of appli-
cation,
1859, 125, § 2.
eegijlatioxs for OPERATIXG EOAD.
Sect. 81. No corporation shall run or permit to be run upon its road
any train of cars moved by steam power for the transportation of ]ia.s-
sengers, unless there is placed upon the train one trusty and skilful
brakeman to every two cars in the train.
Sect. 82. If a corporation runs or jicrmits to be run upon its road a
train of cars for the transportation of merchandise without a good and
sufficient brake attached to the rear or hindmost car of the train, and a
trusty and skilful brakeman placed and pennanently stationed on said
car, it shall forfeit a sum not exceeding one hundred dollars for each
offence.
Sect. 83. Every coqjoration shall cause a bell of at least thirty-five
pounds in weight to be placed on each locomotive engine passing u])oii
its road; and such bell shall be rung at the distance of at least eighty
rods from the place where the road crosses a turnjnke, highway, or
town way, upon the same level therewith, and in like manner wlien the
road crosses any other travelled place, over which a sign-board is re-
quired to be maintained, as jirovided in section eighty-five, and shall be
kejit ringing until the engine has crossed such tuin]iike or way.
Sect. 84. Every corporation shall cause boards, well sujijiorted by
posts or otherwise, to be ])laced and constantly maintained across each
turnpike, highway, or town way, where it is crossed by the railroad upon
the same level therewith; said posts and boards shall be of such height
as to be easily seen by travellers without obstructing the travel; and
on each side of the boards the following inscri])tion shall be iirinted in
capital letters of at least the size of nine inches each, — Railroad
CROSSING look OUT FOR THE ENGINE WHILE THE BELL RINGS.
Sect. 85. If the mayor and aldermen or selectmen of a city or town
wherein a travelled place is so crossed by a railroad, decide that it is
necessary for the better security of the jiublic, that such sign-boards
should be maintained at such travelled place, they may in writing re-
quest the corporation owning the railroad to erect and maintain them.
If the corporation neglects or refuses so to do, the mayor and ahlermen
or selectmen may apjily to the county commissioners to decide upon
the reasonableness of their requests. If the commissioners, after due
Chap. 63.] railroad corporations — operating road. 361
notice and hearinii of the parties, decide that such erection is necessary
for the better security of the public, the corporation shall comjily with
their decision, and ]jay the costs of the ap])lication. If they decide that
it is not so necessary, one-half of the costs of the ajijilication shall be
paid by the city or town, and one-half by the corporation.
Sect. 86. If the mayor and .ildermen or selectmen of a city or town Gates, &c., may
wherein a highway, town way, or travelled place, so crossed by a railroad !Jl!,I^.7s';'ry.' ^
is situated, sliall be of opinion that the provisions contained in the three Jt. s. m, §so.
preceding sections are not a sufficient security to the public, and that it roViiyias.
is necessary for such security that gates should ])e erected across sucli
railroad, turnpike, highway, town way, or travelled place, and that an
agent be stationed to open and close such gates when an engine passes,
or that bars be erected instead of gates, for security across such travelled
place, they may in writing request the corporation to erect gates and
station an agent, or request the erection of bars. If the eorjioration
shall refuse or neglect to comply with the request, the mayor and alder-
men or selectmen nuiy apply to the county commissioners, who shall
give due notice and hear the parties.
Sect. 87. If the commissioners decide that the public security re- Bame subject.
quires the erection of gates and providing an agent, or the erection of J^.'ji'.'i^ili^i^'ners
bars, as requested, the corporation shall comply with the decision and tu he compUcd
pay the costs of the application. If the commissioners decide that the coJts.
establishment of gates and an agent, or of bars, as requested, is not re- ''-f-.J?; i??; ~
quired, the mayor and aldermen or selectmen shall pay the costs of the ? gVmjvjs.
application. If the application is for the establishment of g.ates and an
agent at a travelled place, not adjudged to be a town way or liighway,
and the commissioners decide that bars will furnish sufficient security,
they m.ay order them to be erected and make such order respecting costs
as justice shall reciuirc.
Sect. 88. In the city of Boston the above request may be made by proeeedingrs
any two or more of the inhabitants of the city, and upon the neglect or ijosioll.'^'"*'^ ""
refusal of the cor])oration to comply with their request, the)' may a]i])ly i^^'J. ;-'-'2, § i.
to the board of aldermen; and thereupon like proceedings shall be had, lis-Itlwsi §33.
with like liabilities as to costs, as are provided in the preceding section. I'-^'-.-to-
Sect. 89. If the mayor and aldermen or selectmen of a city or town Seiertmen, &c.,
wherein a turnjiike, highway, street, or town way, so crossed by a rail- "'ii7st'i'or*fl.i»-
road, is situated, decide that the safety of the public would be more j"™ "t cross-
effectually secured by the stationing of a flag-man than by the erection I'mJeedings.
of a gate at the crossing, they may in writing request the cor]ioration !*"«> -i5.
to which the railroad belongs to station a flag-man at the crossing, who
shall dis|)lay a flag whenever a locomotive engine or train of cars passes
thereat. If the corporation refuses or neglects so to do, the mayor and
ahlermen or selectmen may apply to the county commissioners to de-
cide upon the reasonableness of the request; and if the commissioners
after due notice and hearing the parties decide that the stationing of
such flag-man is necessary for the security of the public, the eorjioration
shall comjily with the decision and jiay the costs of the application. If
the commissioners decide that the stationing of such flag-man is not
required, the mayor and aldermen or selectmen shall pay the costs.
Sect. 90. If a corporation unreasonably neglects or refuses to com- Penalty for ncg-
ply with any order or decision made under the seven preceding sections, u. s. aa', § si.
it shall forfeit for every such refusal or neglect a sum not exceeding one
thousand dollars.
Sect. 91. If an agent so stationed neglects to open or close the Pen.iityon
gates for the safe jjassing of an engine on the railroad, or a traveller on "r'^'i'.rt^'^'' °'
the turnpike or other way, or if a flao--mau so stationed nedeets to dis- H- s. :w, §8i.
play his flag as above required, the agent or flag-man shall for every
neglect forfeit a sum not exceeding one hundred dollars ; and the cor-
poration shall also be liable for all damages sustained by any person by
31 46
362 EAILROAD COUPOBATIONS — OPERATING ROAD. [CnAP. 63.
reason of such neglect of any of its agents, to be recovered in an action
of tort.
Commissioners Sect. 92. Coiinty commissioners may, on the petition of any party,
at'crosski^?''''' order an alteration of the location and construction of railroad gates at
isoi, 101. " crossings when in their ojiinion the better security of human life or the
convenience of the public travel so requires.
Enpnctobp Sect. 93. When a railroad other than a horse railroad or a railroad
five'iiundTOi"" ^'^ which no passenger trains are run is crossed by another at grade,
feetof crossing, every cnginemaii on either of the roads shall, before reaching the cross-
I85vwr§|ii2- ing, stop his engine at some point within live hundred feet therefrom ;
and shall pass slowly over the crossing; but one stop sliall be sufficient
for all such crossings within six hundred feet of each other upon the
same road.
Penalty on en- Sect. 94. Every engineman violating the provisions of the ])reccding
fss™™' §§ 1, " section shall for each offence forfeit one hundred <lollars, and the cor-
poration on whose road the offence is committed shall forfeit the further
sum of three liundred dollars; such forfeitures to be recovered by com-
plaint in the county where the offence is committed,
on engineers, Sect. 95. Wlien an engineei-, fireman, or other agent of a corpora-
firemen, &c., for ^.Jqjj jg guilty of neglitfence or cai-elessness whereby an iniury is done to
negligence. t!» j c .r- ^ , i, i • i i i . •. •^
is:i7, :i2u, § r. any person or corporation, he shall be punished by imprisonment not
exceeding twelve months, or by fine not exceeding one thousand dollars.
on person Sect. 96. Whoever, having management or control of or over a
having control i-aihvav train wliile beinir used for the common caniasje of iiersons, is
of passenger . ^ ^ ,^ ,• • ,., i
train for care- guilty of gi'oss carelcssucss or neglect in or in relation to the conduct,
issfs^m management, or control thereof, shall forfeit a sum not exceeding five
thousand dollars, or be imprisoned not more than three years.
Liability of cor- Sect. 97. If by reasou of the negligence or carelessness of a corpora-
iifeofTpassen- tion, or of the unfitness or gross negligence or carelessness of its ser-
ger is lost iiy vants or agents, the life of any person being a passenger is lost, the
"i*Ki,'io.°™' *" corporation sh:dl bo ])uiiishcd by a fine not exceeding five thousand
nor less than five hundred dollars, to be recovered by indictment and
paid to the executor or administrator for the use of the widow and
children of the deceased in equal moieties, but if there are no children
to the use of the widow, or if no widow to the use of the next of kin.
when life of Sect. 98. If by reason of the negligence or carelessness of a corpora-
passen "er' Ac, tion, or of the Unfitness or gross negligence or carelessness of its ser-
isiost" ^ vants or agents while engaged in its business, the life of any person
ii^Cush.'oii'.'' being in the exercise of due diligence, and not being a passenger or in
the employment of such corporation, is lost, the corporation shall be
punished by a fine not exceeding five tliousand nor less than five hun-
dred dollars, to be recovered by indictment and paid to the executor or
administrator for the use of the widow and children as provided in the
preceding section: provided, that the coi']ioration sliall not be so liable
for the loss of hfe by any jierson while walking or being ujion its road
contrary to law or the reasonable rules and regulations of the cor-
poration.
Indictments. Sect. 99. Indictments against a corporation for loss of life shall be
ifcuth.'oVa! prosecuted within one year from the injury causing the death.
Dutyofcorpo- Sect. 100. When an accident attended with loss of life to any per-
'^s^'iost*'^'''^'''^'^ son occurs upon a railroad, the cor]ioration owning the road shall cause
isw, 172, §§),2. immediate notice thereof to be given to a coroner of the county residing
1850,215. nearest to the place of tiie accident.
bk foTdamages Sect. 101. Evciy corporation shall be responsible in damages to any
by fire from "en- person or corporation whose buildings or other ](ro]ierty may be injured
Siay^nsurc. by fire communicated by its locomotive engines; and shall have an
]'ii*Me'^'oV' insurable interest in the i)ro]ierty upon its route for which it may be so
4 Cush'. ass. held responsible, and may procure insurance thereon m its own behalf.
Chap. 60.] railkoad corporations — passengers, tolls. 3G3
TEXALTIES FOR OBSTRUCTING ROAD, &C.
Sect. 102. Whoever without right knowingly stands or walks on a ronaity for bo-
railroad track shall forfeit a sum not less than tive nor more than fifty "^a^iHT^J
dollars.
Sect. 103. Whoever, after a railroad is opened for use, rides, drives, for driving
or leads a horse or other beast on the same without the consent of the J^Ji'^oa'd'""
corporation or its agent, except in places where the road is crossed by k. s. su, §g5.
a turnpike road, railroad, or way, upon the same level therewith, shall '*''-''*^--
for every such offence forfeit a sum not exceeding one hundred dollars,
and be liable for all damages thereby sustained by any jierson, to bo
recovered in an action of tort.
Sect. 104. The person through whose fault or negligence a horse or for neglect in
other beast goes at large within the limits of a railroad after it is opened r"'''i""5„!!^"'V
for use, shall for every such oflence forfeit a sum not exceeding twenty road.
dollars, and be liable for any damages thereby sustained by any person, ''' *"' ^^' ^ ^
to be recovered in an action of tort.
Sect. 105. Whoever wilfully and maliciously obstructs the passing forobstruct-
cf any carriage on a railroad, or in any way injures such road or any pi'""t;es ur lu-
,.*^ ... *.,*., , * jmiHn rail-
thing aiipeitaining thereto, or any materials or implements tor the con- rmuis.
structiou or use thereof, or aids or abets in such trespass, shall Ibrfeit i^J,'i35.
to the use of the corporation for each offence treble the amount of
damages proved to have been sustained thereliy, to be recovered in an
action of tort ; and may further be punished by fine not exceeding one
thousand dollars, or imprisonment for a term not exceeding one year.
Sect. 106. Whoever commits any of the acts mentioned in the andendangcr-
preceding section, in such manner as thereby to endanger life, shall be '/["y'ij,'; ,.,
punished by a fine not exceeding one thousand dollars or by imprison- ihou, «.'
ment not exceeding one year, or by imprisonment in the state prison
not exceeding twenty years.
Sect. 107. Whoever, by himself or others, obstructs any engine or for obstruct
carriage passing upon a railroad, or endangers the safety of persons "i^-f'^^Ti.'^''
conveyed in or u])on the same, or aids or assists therein, shall be pun-
ished by solitary iinpiisoninent in the state jirison not exceeding ten
days, and by confinement afterwards in said prison at hard labor not
exceeding twenty years.
Sect. 108. Whoever wilfully does or causes to be done any thing for obstruct-
with intent to obstruct any engine or carriage passing upon a railroad, or j^a ^''"' "'t™t>
with intent to endanger the safety of persons conveyed in or upon the ito^, iso, §2.
same, or aids or assists therein, shall be punished by iiiqirisonment in the
State prison not more than five years, or by fine not exceeding tive hun-
dred dollars and imprisonment in tlie county jail not more than one year.
Sect. 109. All penalties and forlcitures accruing to a cor]ionition iu favor of
under this chapter may be recovered in an action of tort in the name i,ow°M'dvei'cU.
of its treasurer. i'- i'- ^'J. § '•«•
accommodations for passengers. TOLLS, &c.
Sect. 110. Every coi"poration shall furnish reasonable accommoda- Conioration to
tions for the convenience and safety of passengers ; and lor every wilful p^^^ssJ'ugCTBf"
neglect to provide the same shall forfeit not less than five nor more ivuaity.
i-u J. ill! X 1 1 ■ »■ i- i * IMl), I'll, §2.
than twenty dolhirs, to be recovered in an action oi tort. i,'<3l', 313.
Sect. 111. Corporations when requested shall give chocks to pas- totumish
sengers for their baggage when delivered for transportation, and shall j^'^!('''\^_
redeliver the same to the passengers upon the surrender of their checks.
A corporation refusing to comply with the requii'ements of this section
shall forfeit ten dollars for each offence.
Sect. 112. Each cor])oration may establish, for its sole benefit, a toll may estabUeh
upon all jjassengers and property conveyed or transported on its road, *^.'"''' >"'t'J'"=''
at such rates as may be determined by the directors thereof ; and may ii. s. so, § s.i.
364
ItAILUDAD CI)l;rcll;ATlUNS ■
CONiNKCTING ROADS. [ChAP. 63.
Penalty for
fraudulent ova
8ion, &c., of
tolls or faro.
lSi9, 191, § ■■:.
from time to time regulate such conveyance and transportation, the
Weight of loads, and all otlier things in relation to the use of its road,
as the directors may determine ; but the legislature may from time to
time alter or reduce the rates of toll according to the provisions, if any,
contained in the charter of the corpov.itiou : proeided, thut such tolls
shall not without tlie consent of tlie corjioration be so reduced as to
produce with all |)rofits less th;in ten per cent, a year.
Sect. 118. Whoever fraudulently evades or attempts to evade the
payment of any toll or fire lawfully established by a corjioration, either
by giving a fdse answer to the collector of tlio toll or fare, or by travel-
ling beyond the jioiiit to which he has paid the same, or by leaving the
train without having paid tlie toll or fare estalilished for the distance
travelled, or otherwise, shall be punished by fine of not less than five
nor more than twenty dollars for each offence. Whoever does not upon
demand first pay such toll or fare shall not be entitled to be transported
over a road.
Corporations to
forwar.l ^^-lols
to couuectiiif^
roads, &c.
Penalty.
ISoy, 20J, §§ 1, 2.
whose roads
unite, may con-
tract for trans-
portation, .^:c.
Profits ret^ard-
ed as income.
1838,99, §§ 1,-'.
owning road
liable for dam-
ages, &e.
1838, 99, § 3.
shall trans-
port passen-
gers, &c., for
each other.
If they cannot
agree, &c.
1845, 191, §§ 'i, 3.
9 Cash. m>.
7 Gray, 31.
Where roads
terminate in
same place, A'c,
each shall fur-
EELATIONS OF CONNECTING ROADS.
Sect. 114. Corporations shall promptly forward merchandise con-
signed, ordered, or directed, to be sent over another road connecting
therewith, according to the directions contained thereon or accompany-
ing the same, and shall not receive and forwanl over their roads any
merchandise consigned, ordered, or ex]iressly directed, to lie received
and forwarded by a different route. A corporation wilfully violating
the jirovisions of this section, if the freiglit or expense of carri::ge of such
merchandise is paid or secured to the tbrwarding road, sliall, for each
offence, forfeit one humlred dollars, to be recovered by action of tort by
any person or corporation injuriously affected thereby.
Sect. 115. Two corpor.itions created by this state or by the concur-
rent acts of this and an adjoining state, whose roads enter n]ion or con-
nect with each other, may contract that eitlier corporation shall perform
all the transportation of persons and freight ujion and over the road of
the other. The income arising from such contracts shall be subject to
the provisions of law in regard to the right of the state to jiurchase the
roads or reduce their tolls, in the same manner as that arising from the
use of the roa<ls.
Sect. 11(3. Where such contracts are made, the corporation owning
the road sliall be liable for all damage done or injury sustained thereon
or in the use thereof in the same manner and to the same extent that it
would be liable if it performeil the trans]>ortation itself
Sect. 117. Every corjioration owning a road in use shall at reason-
.able times and fir a reasonable compensation draw over the same the
ji.issenger.s, merchandise, and cars, of any other corjioration authorized
by the legislature to enter with its road uj)on, or unite the same with,
and use, the road of the first named corjioration. If the corporations
cannot agree upon the stated periods at which tlie cars shall be so drawn
and the compens.ation to be paid, the supreme judicial court upon the
jietition of either jiarty, and notice to the other, shall appoint three com-
missioners, who, after due notice to and liearing the jiai-ties interested,
shill determine such rate of comjiensation, and fix such periods having
reference to the convenience ami interest of the corjiorations and the
ji\iblic to be accommodated thereby; ;ind the award of the commission-
ers or a major jiartof them shall be bimling uj)on the resjiective corjiora-
tions interested therein, until the same shall have been revised or altered
by commissioners so aj>j)oiiited ; but no such revision or alteration shall
be made within one year after the award.
Sect. 118. Where two or more railroads terminate in tlie same city
or town, and one corpor.ition is authorized to enter witii its road upon,
unite the same with, and use, the road of another of said corjiorations,
Chap. G-3.] railroad corporations — bonds and mortgages. 305
each corporation may enter upon and use the road of the otlier, and nisii depots, i-e.
eacli shall for a reasonable compensation provide upon its road convenient aJr'iv7commJs-
and suitable depot accommodations for the passensrers and merchandise sioucrs may be
of the other road jiassmg to and over it, and shall receive and deliver coinp^jusation
the same in the manner it receives and delivers its own passengers and oj^'umimssion-
freight. If tlie corporations cannot agi-ee upon the terms and condi- imj, mi, §§2,3.
tions u])on which such accommodations shall be furnished and the rti'.' "■^'' ^^ ''
business transacted, commissioners maybe ajipointed in the manner if^N 10.
preseribeil in the preceding section, who shall determine the rate of ' ™^'
compensation to be paid for tlie de]iot accommodations required for the
proper reeejition and delivery of such passengers and merchandise, and
upon the ap])lieation of either party detemiine all questions between
the parties in relation to the transportation of freight and passengers
over and other business upon and connected with said roads in which
they are jointly interested, and the manner in which the business shall
be done, and apportion to the corporations tlieir resjiective shares of the
expenses, receipts, and income, of the same ; and the award of the com-
missioners, or tlie major part of them, subject to the limitations and
restrictions contained in the preceding section, shall be binding upon
the respective coqjorations. The compensation of the commissioners
for services and expenses under the two preceding sections, shall be
paid by the respective ooi-porations in such proportions as the commis-
sioners shall determine.
Sect. 119. Xo locomotive engine or other motive power shall be al- Nomotivi>pow-
lowed to run upon a railroad constructed by authority of this state, r'iaJ w'itilout
except such as is owned and controlled by tlie coqioration owning and <-"iiscnt.
managing the road, unless with the consent of the corporation. '"'' '^ '
BONDS and mortgages.
Sect. 120. A corjioration, for the purpose of funding its floating Corporations
debt or fjr money borrowed for any purpose sanctioned liy law, may, iKil^iis^for fumi-
upon being authorized by a majority of the votes at a meeting of its ins; floating
stockholders called for the purpose, issue bonds in sums of not less than iss4,'2x(i. §§1,2.
one hundred dollars each payable at perioils not exceeding twenty years Sec Ch. 53, § «.
from the date thereof and bearing interest not exceeding the rate of six
per cent, a year, payable annually or semi-annually, to an amount not
exceeding the capital stock actually paid in by its stockholders.
Sect. 121. No bond shall be issued unless approved by one or more Bonds to be ap-
of the finance committee of the corporation, or some other pei'son i^™a^, 54.
appointed for that pur|iose, who shall certif)' that it is properlj' issued
and recorded upon the books of the corporation.
Sect. 122. All bonds or notes issueil by such coi^poration shall bo bindinfr,
binding anil collectable in law, notwithstanding such notes or bonds were i„'|v"pa'r.''"
negotiated and sold by the cor|^oration or its agents at less than jiar. ^^-^^ ^so, § 5.
Sect. 123. Xo corporation having issued bonds under the provisions Morto-a^cs to
of section one hundied and twenty, sh.ill subsequently make or execute J".eviouBiy"is-
any mortgage upon its road, equipments, and franchise, or any of its ^";';''*5-,„
property, real or personal, without including in and securing by such
mortgage all bonds previously issued and all preexisting debts and
liabilities of the corporation.
Se( t. 124. When a corporation, having executed a mortgage of its TrnBteescnti
property, rights, and privileges, or any jiait thereof, to trustees, for the *'io,' '^aTcon'-
benefit of its general creditors or of any particular class of creditors, has tra.t with cor
made default in the performance of the condition so that the trustees or crate road" ""^
their successors are entitled to the actual possession and usufruct of the •'™'''*i""|-
property, rights, and privileges, therein conveyed in trust for the pur- ^'' ' '
poses specified in the mortgage, the trustees, instead of retaining in their
own hands the actual possession of the mortgaged premises and running
31*
360
RAILKOAD CORPORATIONS BONDS AND MORTGAGES. [ChAP. 63.
Trustees in pos
session to c:ill
iinnuul nieet-
iuj^s of bonil
lioiders and
lualvO return to
secretary
l«u<, 17S, § 2.
if they do not,
bond liol.lers
may call meet-
ing,
isi;, 17S, § 3.
Trustees under
morto^ajje, elec-
tion and con-
firmation of.
18J7, 178, § i.
Equity jurisdic-
tion of S. .1. C.
1*57, 178, § 5.
the trains under their own direction and on tlicir own responsibility,
may contract witli the corporation to talce and retain for them tlie pos-
session and use of the mortgaged ])remises and use and operate the same
on its own responsibility under tlie direction of its officers, accounting
■with the trustees for the earnings and income, and paying over the net
income and profits periodically when and as far as the same may by tlie
terms of the mortgage be necessary for the fultilment of its conditions:
2Jrovided, that all liabilities incurred by the corporation or other party
'in operating the road under such contract, shall be held as claims against
and paid out of the income in the same manner and to the same extent
as if the property had remained in the actual possession of the trustees
and been operated by them ; and jwovided, that at a meeting of the bond
holders or creditors under the mortgage duly notified in two or more
daily newspapers published in the city of Boston, and in one newspaper
at least in each county through which the road is located, ten days
before said meeting, a majority in amount of those present or represented
shall vote in favor of such contract, each bond hohler or creditor casting
one vote personally or by proxy for every hundred dollars held by him.
Sect. 125. Trustees in possession of a railroad under a mortgage,
shall annually notify a meeting, to be held in December, of the bond
holrlers or creditors for whose secu' y they hold the road in trust, such
notice to be published at least ten days previously to the time of hold-
ing such meeting in two or more daily newspapers in Boston and in one
paper at least in each county througl> which the road is located; and at
such meeting they shall submit a report of their doings for the year,
similar to the annual report of railroad directors to stockholders. On or
before the thirty-first day of December annually they shall transmit to
the secretary of the commonwealth the same returns of their acts, doings,
receipts, and expenditures, as are required of rai lOad corporations, and
be subject to the same forfeitures and penalties for any default.
Sect. 126. Upon failure of the trustees to call the meeting as required
by the preceding section, five or more bond holders or creditors, whose
claims secured by the mortgage amount to not lei s than ten thousand
dollars, ma}' in the manner therein prescribed call such meeting to be
held in the .Tanuaiy following said December.
Sect. 127. At the annual meeting held under either of the two pre-
ceding sections, the bond holders or creditors may elect three trustees
under the mortgage for the ensuing year and until others P' e chosen
and qualified, each bond holder or creditor casting in person or by
proxy one vote for each hundred dollars due and secured to him under
the mortgage. And the trustees, or either of them, or any bond holder
or creditor, may in a summary manner present the proceedings of the
meeting to a justice of the supreme judicial court, in court or at cham-
bers, the party presenting such proceedings giving notice thereof and of
his intention to move for their affirmation to the former trustees under
the mortgage, to the trustees of every other existing mortgage upon i iie
road, and to the coqjoration giving the mortgage, seven days at least
bef jre the hearing thereon ; which notice may be served by any officer
or indifferent person. The justice may hear the parties and ratify the
election, and make such order and decree as he maj' deem necessary and
just to transfer the property to the new trustees ; which order and
decree shall be filed in such clerk's office of the court as the justice may
direct.
Sect. 128. The supreme judici.al court and each of the justices
thereof shall have full equity jurisdiction according to the usage and
practice of courts of equity of all cases arising under the three jjreceding
sections, and of all questions arising out of railroad moi-tgages, and may
in a summary manner remove any trustee under a railroad mortgage,
whether such trustee is in possession of the railroad or not, and appoint
§4.
Chap. 63.] kailroad corporations — retu.ins and reports. 367
a new trustee in his stead, whether such trustee is elected hy the bond
hohlers or creditors as provided in said sections or not.
Sect. 1:29. When such corporation is required to convey in pledge jTortgrnsrc, &c,
or mortgage to the commonwealtli its road with the franchise and n'omvcii'ti" '"
property to it belonging, to secure a loan or debt owing or to become 'i'v™'",-
due from it to the commonwealth, the conveyance shall by its terras be isjs] lo.'
of the road, franchise, and property, of the corporation, as it exists at
the time of the execution thereof, whether the corj)oration has acquired
a full title to the land upon which its road is authorized to be made or
not, or whether its road is completed or not ; and the conveyance shall
be in full force without any record thereof.
Sect. 130. The conveyance shall, as ag.ainst any claims or encum- whatpropei^
brances to which tlie road, franchise, or ])ro])erty, may be thereafter Isss^ooAsf'
subjected, operate to cover and bind any lands included within the loca-
tion of the road, the title to which or t!ie easement u])on which shall be
thereafter acquired, and any additions which .shall bo thereafter made to
the road by labor, materials, or otherwise, and any lands thereafter pur-
chased and appi'opriated for depots for the road, or any buildings or
fixtures ])laeed thereon, and also any engines, cars, or other ajijiaratus,
■which may be placed upon the road or procured therefor, as fully as if
the road had been completed and all said ])roperty acquired and owned
by the corporation at the time of the execution of the conveyance ; but
the conveyance shall not be construed to include or aflect any personal
property which has been sold by the corporation to a bona fide pur-
chaser before the commonwealth takes possession thereof under the
conveyance.
Sect. 131. The treasurer of the commonwealth shall forthwith upon tobcrccord-
their delivery cause aU such bonds and mortgages to be recorded in the j^jj j^
registry of deeds in each county and district through which the road
conveyed thereby may pass.
EETFRXS AND EEPORTS.
Sect. 132. Everj' corporation shall at all times submit its books to Corporation to
the insnoction of any committee of the Icsiislature apiiointed for the imr- !'"'"i""'"nks to
*.,*' ~ -1^ 1 iiisiK't-'iion oi
pose ; and its directors shall annually on or beibre the first Wednesday cnnimitt. cs of
of .January jjrepare, make oath to, and transmit to the secretary of the ■^j\un,'iJh":i,i-
commonwealth, together with one thousand ])rinted co]ues of the same, n""' report.
a report of their doings under their charter for the year ending the thirti- h. s. :«>, § w.
eth day of November preceding ; the first annual re])ort stating the num- j^^t il^'i ^^\
ber of months and d.ays included therein. The re])ort shall set forth im's Ti.ii,'§i.'
copies of all contracts made with other railroads under section one hun- jsj*; tns", ?5 1 2.
dred and fifteen, and specifj' the receipts and expenditures under the "^-57, «, §6.
Bame ; and shall contain full information upon the following items, viz : — §2.'' ' '
1S5S, 40, § 8.
FORM OF RAILROAD RETURN' TO THE LEGISLATURE.
1. Capital stock, .$ . 2. Number of shares of capital stock issued. 3. In-
crease of capital since last report. 4. Capital paid in per last report, .$
5. Capital paid in since last report. 6. Total amount of capital stock paid in.
7. Funded debt per last report. 8. Funded debt paid since last report. 9. Funded
debt, increase of, since last report. 10. Total present amount of funded debt.
11. Floating debt per last report. 12. Floatins; debt paid since last report. 13. Float-
ing debt, increase of, since last report. 14. Total present amount of floating debt.
1.5. Total present amount of funded and floating debt. 16. Average rate of interest
per annum paid during the year. 17. Maximum amount of debts during the year.
Cost of Road and Equipment,
18. For graduation and masonry per last report. 10. For graduation and masonry
paid during the past year. 20. Total amount expended for graduation and masonry.
21. For wooden bridges per last report. 22. For wooden bridges paid during the
past year. 23. Total amount e.^pended for wooden bridges. 24. Total amount
3G8 RAILROAD CORPORATIONS — RETURNS AND REPORTS. [ChAP. 63.
Form of rail- expended for iron bridges, (if any.) 25. For superstructure, including iron, per last
ruiid rc'ijorts. report. 26. For superstructure, including iron, paid during the pa>t year. 27. Total
amount expended for superstructure, including iron. 28. For stations, buildings, and
fixtures, per last report. 29. For stations, buildings, and fixtures, paid during the
past year. 30. Total amount expended for stations, buildings, and lixtuves. 31. For
land, land damages, and fences, per last report. 32. For land, land damages, and
fences, paid during the past year. 33. Total amount expended for land, land damages,
and fences. 34. For locomotives, per last report. 35. For locomotives, paid during
the past year. 36. Total amount expended for locomotives. 37. For passenger and
baggage cars, per last report. 38. For passenger and baggage cars, paid during the
past year. 39. Total amount expended for passenger and baggage cars. 40. For
merchandise cars, per last report. 41. For merchandise cars, jjaid during the past
year. 42. Total amount expended for merchandise cars. 43. For engineering, per
last report. 44. For engineering, paid during the past year. 45. Total amount
expended for engineering. 46. For agencies and other expenses, per last report.
47. For agencies and other expenses, paid during the past year. 48. Total amount
expended for agencies and other expenses. 49. Total cost of road and equipment.
50. The amount of assets or property held by the corporation in addition to the cost
of the road.
Characteristics of Road.
51. Length of road. 52. Length of single main track. 53. Length of double main
track. 54. Length of branches owned by the company, stating whether they have a
single or double track. 65. Aggregate length of sidings and otlier tracks, excepting
main track and branches. 56. Weight of rail per yard, in main road. 57. Weight
of rail per yard, in branch road; (specify the dift'erent weights per yard.) 58. Ma.xi-
mum grade, with its length in main road. 59. Maximum grade, with its length in
branch roads. 60. Total rise and fall in main road. 61. Total rise and fall in
branch roads. 62 Shortest radius of curvature, with length of curve in main road.
63. Shortest radius of curvature, with length of curve in branch roads. 64. Total
degrees of curvature in main road. 65. Total degrees of curvature in branch roads.
66. Total length of straight line in main road. 67. Total length of straight line in
branches. 68. Aggregate length of wooden truss bridges. 69. Aggregate length of
all other wooden bridges. 70. Aggregate length of iron bridges. 71. Whole length
of road unfenced on both sides. 72. Number of public ways crossed at grade.
73. Number of railroads crossed at grade. 74. Remarks. 75. Way stations for
express trains. 76. Way stations for accommodation trains. 77. Flag stations.
78. Whole number of -way stations. 79. Whole number of flag stations.
Doings dwing the Year.
80. Miles run by passenger trains. 81. Miles run by freight ti-ains. 82. Miles run
by other trains. 83. Total miles run. 84. Number of passengers carried in the cars.
85. Number of passengers carried one mile. 86. Number of tons of merchandise
carried in the cars. 87. Number of tons of merchandise carried one mile. 88. Num-
ber of passengers carried one mile to and from other roads. 89 Number of tons
carried one mile to and from other roads. 90. Rate of speed adopted for express
passenger trains, including stops. 91. Average rate of speed actually attained by
express jiasscnger trains, mcluding stops and detentions. 92. Rate of speed adopted
for accommodation trains. 93. Rate of speed actually attained by accommodation
trains, including stops and detentions. 94. Average rate of speed actually attained
by special trains, including stops and detentions. 95. Average rate of speed adopted
for &eight trains, including stops. 96. Estimated weight, in tons, of passenger cars,
(not including passengers,) hauled one mile. 97. Estimated weight, in tons, of
merchandise cars, (not including freight,) hauled one mile.
Expenditures for Making the Road.
98. For repairs of road, maintenance of way, exclusive of wooden bridges and
renewals of iron. 99. For repairs of wooden bridges. 100. For renewals of iron,
including laying down. — 101. For wages of switchmen, (average per month, $ .)
102. For wages of gate-keepers, (average per month, $ .) r
103. For wages of signal-men, (average per month, .f .) i Total
104. For wages of watchmen, (average per month, $ .) [
105. Number of men employed, exclusive of those engaged in construction. 106. For
removing ice and snow, (this item to include all labor, tools, repairs, and extra steam-
power used.) 107. For repairs of fences, gates, houses for signal-men, gate-keepers,
switchmen, tool-houses. 108. Total for mamtenance of way.
Motive Pmcer and Cars.
109. For repairs of locomotives. 110. For new locomotives to cover depreciation.
111. For repairs of passenger cars. 112. For new passenger cars to cover depreciation.
113. For repairs of merchandise cars. 114. For new merchandise cars to cover depre-
ciation. 115. For repairs of gravel and other cars. 116. Total for maintenance of
Chap. 63.] railroad corporations — returns and reports. 369
motive power and cars. 117. Number of engines. 118. Number of passenger cars. Formofrail-
119. Number of baggage cars. 120. Number of merchandise cars. 121. Number of road reports,
gravel cars.
MisceUaneoiis.
122. For fuel used by engines during the year, \'iz.: 123. Number of cords of wood and
cost of same. 124. Number of tons of coal, at two thousand two hundred and forty pounds
to the ton, and cost of same. 125. For oil used by cars and engines. 126. For waste
and other material for cleaning. 127. For salaries, wages, and incidental expenses
chargeable to passenger department. 128. For salaries, wages, and incidental expenses
chargeable to freight department. 129. For gratuities and damages. 130. For taxes
and insurance. 131. For ferries. 132. For repairs of station buildings, aqueducts,
fi.\tures, furniture. 133. For renewals of iron, including laying down. 134. For
new iron laid down, deducting the value of old iron taken up. 13.5. For amount paid
other companies, in tolls, for passengers and freight carried on their roads, specifjang
each company. 136. For amount paid other companies as rent for use of their roads,
specifying each company. 137. For salaries of president, treasurer, superintendent,
law expenses, office expenses of the above offices, and all other expenses, not included
in any of the foregoing items. 138. Total miscellaneous. 139. Total expenditures
for working the road. 140. For interest.
Income during the Year.
141. For passengers — 1. On main road, including branches owned by company;
2. To and from other roads, specifying what. 142. For freight — 1. On main road and
branches owned by company ; 2. To and from other connecting roads. 143. XJ. S.
mails. 144. Rents. 145. Total income. 146. Net earnings, after deducting expenses.
Dividends.
147. per cent., total, $ . 148. Surplus not divided. 149. Surplus
last year. 150. Total surplus.
Estimated Depreciation beyond the HeneicaU^ viz.
151. Road and bridges. 152. Biuldings, 153. Engines and cars.
Mortgage Debts.
154. Amount of debts secured by mortgage of road and franchise, or any property
of the corporation, per last report. 155. Mortgage debt paid since last report.
156. Increase of mortgage debt since last report. 157. Present amount of mortgage
debts. 158. Number of mortgages on road and franchise, or any property of the
corporation.
Sect. 133. The annual report shall also state whether any fatal acci- Accidents to be
dent or serious injury has occurred to a passenger or other person upon JSiS"' *4'f," § 3.
the road during the period covered by the report; and if so the cause 1849, i9i, §4.
of such accident or injury and the circumstances under which it oc-
curred.
Sect. 1.34. If the directors of .any corporation find it impracticable Report, if not
to return therein all the items in detail required by this chapter, fo'state'rea'-'^'*
they shall in such report state the reasons why such details cannot sons.
, •' . ' - lS4(i, 251, §4.
be given. _ _ _ ism, luil § 4.
Sect. 135. Every corporation neglecting to m.ake and furnish such penalty for
report at the time prescribed in section one lumdred and thirty-two p°'/"3°'l'^'"°'
sh.all forfeit to the use of the commonwealth fifty dollars for each day's 1851,102, §2"'
neglect, to be recovered by the treasurer; and if any corporation unrea- i^''' *"• 5 s-
son.ably refuses or neglects to comply with the other provisions of s.aicl
section, it sh.all forfeit for every such refusal or neglect a smn not exceed-
ing five thousand dollars.
Sect. 136. The secretary shall annually in November furnish to Secretary to
every corporation a t.able prepared in conformity with the provisions of transmit re-
section f)ne hundred and thirty-two ; and sh.all annually on or before the nish abstract to
thirty-first day of January transmit one set of the reports furnished him l^'i^'oj^laf"'
under said section to each member of the legislature, and shall .also iS49!iini§4.
deliver a copy of the report of each corpor.ation to every other such cor- 1S54I354! "
poration in the state. He shall prepare with such other information as 5?^' '"5>§3.
he deems useful, an abstract of such reports in form as follows: — I858l46, §8.
47
370
EAILROAD CORPORATIONS — HORSE RAILROADS. [ChaP. 63.
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Special report
on completion
of road.
IKJ?, -J'-'Ci, § 6.
ISS'J, 202.
State may pur-
chase rjulroad
after twenty
years.
K. S. 39, § 84.
And he shall annually on or before the second Wednesday of January
transmit four hundred bound copies thereof to the let;isl;!ture.
Sect. 137. In addition to the annual report required by section one
hundred and thirty-two, the coqioration shall, when it has conijileted and
opened its road for use, make a report under oath to the legislature,
stating the total amount of capital paid in ; specifying the amount ex-
pended in constructing its road, for engines, cars, depots, car-houses, jjnd
other buildings, and the amount of aU other miscellaneous expenses.
Such report shall also state the length of the road, the number of planes
on it with their inclination per mile, the gi-eatest curvature on the road,
the average width of the grade, and the manner in which the rails are
supported.
EIGHTS OF COSOIONWEALTH.
Sect. 138. The commonwealth may at any time during the continu-
ance of the charter of any corporation, after the ex])iration of twenty
years from the o]iening of its road for use, purchase of the cor])oration
its road, and all its fr.-inchise, property, rights, and jn-ivileges, by paying
therefor such sum as will reimburse it the amount of capital jiaid in,
with a net profit thereon of ten per cent, a year from the time of the
payment thereof by the stockliolders to the time of the purchase.
Horse railroads
exceijted.
time of con-
struction of.
issr, las, §§ 1, 2.
Penalty for eva-
sion of tolls,ifec.
lS.5r, 240, § 5.
Horse cars to
stop at cross-
iw^a of steam
ruilro.ads.
Penalty.
185'J, 12li, § 2.
Corporation to
furnish report.
Form and con-
tents of.
1S5?, 40, §§5,7.
1S.5?, 240, §§1,2.
1858, 46, § 8.
HORSE RAILROADS.
Sect. 139. Horse and street railroad corporations shall not be sub-
ject to the preceding sections except as provided in their several charters.
Sect. 140. Every horse or street railroad corjioration chartered sub-
sequently to the twentieth day of May eighteen hundred and tifty-seven
shall contract its road within twelve mouths after its location ; and the
location of the road of every such coii^oration failing to commence the
construction of its road within six mouths after its location, shall be
void.
Sect. 141. The provisions of section one hundred and thirteen shall
apply to all horse and street railroad corporations.
Sect. 142. When a horse railroad crosses or is crossed by a steam
railroad at gi-ade, the driver of the car upon the horse railroad shall
when approaching the point of intersection stop his car within one hun-
dred feet of the crossing. For each violation of this section the driver
shall forfeit five dollars^ and the corporation on whose railroad the of-
fence is committed shall forfeit ten dollars.
Sect. 143. The directors of eveiy such coiiioration shall annually on
or before the first Wednesday of .January make oath to and transmit to
the secretary of the commonwealth, together with one thousand j)rinted
copies of the s.ame, a report of their doings under their charter for tiie
year ending the thirtieth d.ay of November preceding ; the first annual
report stating the number of months and days included therein. Such
report shall contain full and complete information upon the following
items, viz. : —
Chap. 63.] railroad corporations — horse railroad reports. 371
FORM OF RETFESr.
Condition of the Company.
I . Capital stock, fixed by charter. 2. Capital stock, as voted by the company. Horse railroad
3. Capital stock paid in, \i\ cash. 4. Capital stock paid in, in work and materials, reports.
by contractors and others. 5. Funded debt. 6. Floating debt. 7. Total debt.
8. Amount of above debt secured by mortgage of the road and franchise, or any
property belonging to the corporation or standing in its name. 9. Number of
mortgages on road and franchise, or any property of the corporation, specifying the
number and amount of mortgages on road and franchi-se, and each kind of property.
10. Amount of assets on hand, exclusive of the road and equipment, and exclusive of
all property on hand, used, or which is to be used, in running the road and keeping
it in repair.
Cost of the Road.
I I . Amount expended for labor in excavating for the track, laying foundation and
rails. 12. Amount expended for timber for foundation. 13. Amount expended for
iron and other metal for rails, chaiis, spikes, or other articles, used in building the
road. 14. Amount expended for paving. 1.5. Amount expended for paving stones..
16. Amount expended for engineering. 17. Amount expended for interest, salaries
of officers during construction of road, and other expenses not included in any of the
above items, which have been included on the books of the company in the cost of the
road, not including items of equipment or running expenses, as mentioned below.
18. Total cost of road. 19. Amount included in the present and in past years, among
the running expenses for estimated or actual depreciation of the road. 20. Net cost
of road.
Cost of Equipment.
21. Number of cars, and cost. 22. Number of horses, and cost. 23. Cost of
omnibuses, sleighs, and other vehicles, excepting cars, owned by the company.
24. Cost of land and buildings thereon when purchased. 2.5. Cost of buildings used
for offices, stables, &c., erected by the company, or standing on land not owned by
the company. 26. Cost of other articles of equipment, (specifying what.) 27. Total
cost of equipment. 28. Anioimt included in the present and in past years in the
running expenses for estimated or actual depreciation of any of the above items.
29. Net amount at which the equipment stands charged on the books of the company.
Charactefi^tics of the Road,
30. Length of single main track. 31. Length of double main track. 32. Total
length of road. 33. Length of branches owned by the company, stating whether they
have a single or double track. 34. Aggregate length of switches, sidings, turnouts,
and other track, excepting main track and branches. 35. Total length of rail.
36. Weight of rail used, per yard, (specifying whether of cast or rolled iron.)
37. Maximum grade, per mile, on road, with length of grade. 38. Shortest radiiis of
curvature, with length of curve. 39. Greatest length of single track on road between
two turnouts. 40. Total length of main track which is paved.
Doings during the Tear.
41. Total number of miles run during the year. 42. Number of passengers carried
in the cars. 43. Rate of speed adopted, including stops and detentions. 44. Rate of
speed actually attained, including stops and detentions. 45. Number of persons
employed, regularly, (specifying the occupations of each.) 46. Total number of trips
run during the year. 47 . Average number of passengers each trip.
Expenditures for Working the Road.
48. For repairs of road, including repairs of foundation, renewals of iron, and
renewals of pavement. 49. For general repairs, including repairs of cars, omnibuses,
and harnesses, and for shoeing horses. oO. For repairs of real estate, including
repairs of buildings used as stables, offices, or for any other purposes, by the company.
51. For wages, including the wages of every person regidarly employed, excepting
the president, directors, superintendent, and treasurer. 52. For interest. 53. For
taxes and insurance. 54. For tolls paid other companies for the right to pass over
their roads, o^. For rent paid other companies for use of their roads. 56. For
provender, — • to mclude cost of hay, grain, straw, or other articles, used for the food
and bedding of horses. 57. For miscellaneous articles purchased during the year, —
such as harnesses, blankets, &c., the use of which continues for one or more years, —
and not included in the cost of equipment. 58. For loss on horses, — that is to say,
the difference between the present estimated value of the horses owned by the company
subtracted from the estimated value of those on hand at the commencement of the
year, added to the cost of those purchased during the year ; or if this is the first
report of the company, then the difference between the estimated value of the horses
on hand and their cost, — giving the present average estimated value of each horse.
372
TELEGRAPH COMPANIES.
[Chap. 64.
Horse road re-
ports.
Penalty for neg-
lect.
185/, 240, § 3.
Secretary to
l^rnish blanks.
1857, 240, § 4.
69. For incidental e.xpcnses, — to include printinfj;, president's, directors', treasurer's,
and supcriiitcndeiit's salaries, and all expenses other than those belonging to the actual
working of the road. 60. For all other expenses. 61. For amount charged on the
company's books during the year for estimated or actual depreciation of the following
property : 62. Cars, $ ; 63. Horses, f ; 64. Omnibuses, $ ;
65. Real estate, $ ; 66. Road, $ ; 67. Other property, f ;
68. Total, $ ; 69. Total expenses, $
Eaniinffs.
70. Received from passengers in cars and omnibuses, and for tickets sold. 71. From
other roads, as toll or rent for use of road. 72. From United States mails. 73. For
sales of manure. 74. From other sources. 75. Total earnings. 76. Net earnings,
after deducting expenses. 77. Surplus earnings of previous year on hand. 78. Net
earnings, as above. 79. Total surplus for payment of dividends. 80. Dividends
declared during the year. 81. Total percentage of dividends for the year. 82. Present
surplus.
Uliscellaneoiis,
83. Increase during the year. 84. Of capital stock, as fixed by the charter. 85. Of
capital stock, as voted by the company. 86. Of capital stock paid in. 87. Increase of
funded debt during the year. 88. Increase of floating debt during the year. 89. De-
crease of funded debt during the year. 90. Decrease of floating debt during the year.
91. Increase of mortgage debt during the year. 92. Decrease of mortgiige debt during
the year. 93. Increase in cost of road during the year, including amount charged for
depreciation thereon. 94. Decrease in nominal cost of road, by amount charged for
depreciation thereon. 95. Increase in cost of equipment during the year, including
amount charged for depreciation thereon. 96. Decrease in cost of equipment, by sale
of any portion thereof, or by amount charged for depreciation. 97. List of accidents
on road during the year.
Sect. 144. Every corporation refusmg or neglecting to make the
return required by the preceding section shall forfeit one hundred dol-
lars for each day's refusal or neglect. And the secretai-y of the com-
monwealth shall notify the attorney-general of such refusal or neglect,
who shall forthwith prosecute the same in behalf of the state.
Sect. 145. The secretary shall annually in November cause to be
prepared and transmit to such corporations blank forms for returns.
CHAPTER 64.
OF TELEGRAPH COMPANIES.
Section
1. Companies subject to this chapter.
2. may construct lines upon highways, &c.»
not to incommode public.
3. Mayor aud aldermen, &c., to specify places,
kinds of posts, &c. Record.
4. to assess damages of land owners. Costs.
5. Compensation.
6. Applicant may have jury.
7. Capital to be subscribed. Statement to be
filed.
8. Limit of debt.
Sectiox
t). Liiibility of officers.
10. Duties of companies. Penalty for n^-
Icct.
11. In case of damage, company liable, &c.
Liability of townis.
12. Corporation to make annual rotuma, &c.
13. Unincorporated companies subject to this
chapter.
14. No easement obtained by having telegraph
posts, &c.
15. I'enalty for injuring, &c., lines, wires, &c.
Companies sub-
ject to this
chapter.
184lf, 93, § 1.
may construct
lines upon
highways, &c.,
not to incom-
mode public.
1S49, 93, §§ 2, 3.
Section 1. Every company incorporated for the transmission of
intelligence by electricity shall possess the poAvers and privileges, and
be suibject to the duties, restrictions, aud liabilities, prescribed in this
chapter.
Sect. 2. Each company may under the provisions of the following
section construct lines of electric telegraph upon and along the high-
ways and public roads, and across any waters within the state, by the
erection of the posts, piers, abutments, and other fixtures, (except
bridges,) necessary to sustain the wii'es of its lines ; but shall not incom-
Chap. 64.] telegraph companies. 373
mode the public use of highways or public roads, nor endanger or inter-
rupt the navigation of any waters.
Sect. 3. The mayor and aldermen or selectmen of any place through Mayor and ai-
■which the lines of a coniitany are to pass, shall give the eom]iany a BpecJlyph^eB*"
■writing specifying where the posts maybe located, the kind of ])osts, kinds ot pouts,
and the height at which and the places where the wires may run. ijecord.
After the erection of the lines, having first given the company or its i849,y3, 53
agents opportunity to be heard, they may direct any alteration in the
location or erection of the posts, piers, or abutments, and in the height
of the wires. Such specifications and decisions shall be recorded in the
records of the city or town.
Sect. 4. An owner of land near to or adjoining a highway or road to assesB
along which lines are constructed by the company, who considers himself l^f^^'i^erg
injured thereby, may within three months after such construction a)ij)ly Costs.
to the mayor and aldermen or selectmen to assess and appraise his i"**'-*' "•*' 5 ^•
damage. Before entering upon the service they shall severally lie sworn
faithfully and im]iartially to pertbrm the duties required of tiiem by
this cha])ter. They shall on view make a just ajijiraisal in writing of the
loss or damage, if any, to the apjilicant, sign duplicates thereof; and on
demand deliver one copy to the applicant and the other to the comj)any
or its agent. If damages are assessed, the company shall pay the same
with the costs of the appraisers. If the ajipraisere award that the ajjpli-
cant has suflered no damage, he shall pay the costs of the a]>praisers.
Sect. 5. The mayor and aldermen and selectmen shall each receive compensation,
for services performed under this cha])ter two dollars a day. is49, (w, § 5.
Sect. 6. Any jierson aggrieved by the assessment of his damages Applicant may
may have the matter determined by a jury, and the proceedings shall ii^^g*^ y'J'^^'a
be according to the ]n'ovisions of section seventy-three of chapter forty-
three concerning town ways and private ways. If the jury increase the
damages, the same and all charges shall be paid by the company other-
wise the charges shall be paid by the applicant.
Sect. 7. A company shall not commence the construction of its line Capital to be
tintil three-fourths of its cai)ital stock has been unconditionally sub- J"''/<'"'*'i: .
., , ,. , 1 T ',,,.,. 1 ,. • ■ ■ -1 statement to be
scrioed for; and the threctors shall within ten days of commencing said filed,
line file in the office of the secretary of the commonwealth a sworn i*^'- ~^' '§■''•
statement of the subscription.
Sect. 8. A company shall not at any time contract or owe debts to Limit of debt.
a larger amount than one-half part of its capital stock actually paid in. i'*si,2-i,,§4.
Sect. 9. The jjresident and treasurer of each company shall be jointly LiabiUiy of offi-
and severally liable for all its indebtedness, in case of wilful neglect or ^*r!- ,. .,.
'',. , -i/., • ■ i* 1 • lbol,24<,§0.
omission on their part to comjilj- \\-ith any 01 the provisions 01 this
chapter.
Sect. 10. Every company shall receive despatches from and for other Duties of com-
telegraph lines, comjjanies, and associations, and fi-oni and for any per- \^^]{y ^^
son ; and on payTiient of the usual charges for transmitting desjjatches neglect,
according to the regulations of the company, shall transmit the same issalsii
faithfully and impartially. For every wilful neglect or refusal so to do
the company shall forfeit a sum not exceeding one hundred dollars,
to be recovered in an action of tort by the person, association, or com-
pany, sending or desiring to send the despatch.
Sect. 11. When an injury is done to a person, or to property, bj' the in case of dam-
posts, wires, or other apjiaratus, of a telegraphic line, the company shall n|bio°&c'""'^
be res] lonsible in damages to the party injured. If the same are erected Liability of
on a highway or town way, the city or town shall not, by reason of any i^ag^liio, §§ 1, -i.
thing contained in this chapter, or done thereunder, be discharged from i6oi,24r,§2.
its liability, but all damages and costs recovered against a city or town
on account of such injury, shall be reimbursed by the company owning
the posts, wires, or other ajiparatus.
Sect. 12. Every telegraph comjjany shall annually on or before the Corporation to
32
374
AQUEDUCT CORPORATIONS.
[Chap. 65.
make nnnual re-
turns, &c.
1851, 247, § 5.
1857, 40.
1858,40.
Uniucorporated
oonipiUiii'B sub-
ject to this
clluptor.
IWJ, 93, §§1,0.
1861,247, §2.
No easement
obtained by
having tele-
graph posts,
&c.
1851,247, §1.
Penalty for in-
juring, &c.,
hues, wires,
lie.
1S49, 93, § 7.
fifteenth fl.iy of October m.ake returns to the secretary of tlie common-
wealth, according to forms to be furnished on apphcation to liim, s]ieci-
fying therein the location and line of its telegraph, its name, ca])ital ac-
tually paid in and how invested, annual receipts and expenditures, real
estate and its value, cash on hand, credits on book account, and the
amount of its indebtedness; which return shall be signed by the ](iesi-
deiit, clerk, and treasurer, of the company, and by them be sworn to be
true according to the best of their knowledge and behef.
Sect. 13. Owners and associations engaged in the business of tele-
graiihing for the ])ublic by electricity, although not incorjjorated, shall
be subject to tlie liabilities and governed by the provisions of this chap-
ter in tlie same manner as coi-porations.
Sect. 14. No enjoyment by a person or corporation for any length
of time of the privilege of having or maintaining telegraph posts, wires,
or apparatus, in, upon, over, or attached to, any buildings or lands of
other persons, shall give a legal right to the continued enjoyment of
such easement, or raise any presumjition of a grant thereof.
Sect. 1.5. Whoever unlawfully and intentionally injures, molests, or
destroys, any of the lines, wires, posts, piers, or abutments, or any of the
materials or property, of any company, ownei", or association, shall be
punished by fine not exceeding five hundred dollars, or imprisoument
not exceeding two years, or both.
CHAPTEE 65,
OF AQUEDUCT CORPORATIONS.
Section
1. Proprietors of aqueducts, how incorpo-
rated.
2. Corporate name.
3. Organization, meetings, and choice of clerk.
4. Shares and transfers to be entered in
books.
5. Directors, Ac., to be chosen.
6. Assessments, how mjide and collected.
7. Shares, personal estate, &c.
8. Real estate.
y. Corporation m.ay dig up Iiighways, &c.
Sectios
10. Liability of corporators after dissolution of
company.
11. If no corporate property, individuals liable
for debts.
12. Upon dissolution, corporators to be tenants
in common of the real estate.
13. Penalty for injuring aqueducts.
14. Towns to have use of water in case of fires.
15. Warrants of distress for damages, as
against railroad corporations.
16. Application, when to be filed.
U. S. 40, § 1.
Proprietors of Sectiox 1. Persons who have associated by an agreement in writing
rnTOnroratid"*'^ ^'^ bccoine proprietors of an aqueduct for the puqsose of conveying fresh
■ water into or within a city or town, or of funds for establishing such
aqueduct, may a))ply in writing to a justice of the peace for the county
iu which the aqueiluct or any portion thereof is situated or pro]iosed
to be made, stating the name and style of their association and the objects
of their proposed meeting, and requesting him to call the same. The
justice may thereujion issue his warrant stating the time, ]ilace, and ob-
jects of the meeting, ami directing some one of the persons ap]ilying to
notify the same; who shall jiost up in some public i)lace in the city or
town the substance of the wai-rant with his notice annexed thereto seven
days at least before th(^ meeting.
Sect. 2. The jiroprictors organized in pursuance of such warrant
and their successors shall be a corporation by the name and style which
they have adopted. Such corporation and every corjioration organized
under chajiter forty of the Revised Statutes shall be subject to the pro-
visions of this chapter.
Corporate
name, &c.
U.S. 40, §2.
Chap. 65.] aqueduct corporations. 375
Sect. 3. The projirietors may at a legal meeting agree upon the Or<jnniziition,
metliod of calling future meetings of the corporation, and may choose "hi',i'o'.'^i'cl"rk.
a clerk, wlio shall be sworu, and shall record in books to be provided i:. s. w, §3.
and kej)t by him for that purpose all by-laws, votes, and other jjroceed-
ings, of the corporation ; which books shall at all times be subject to the
inspection of any person appointed for that purpose by the legislature.
Sect. 4. The clerk at or immediately after the first meeting shall shnros ami
enter in the books the names of the several pro])rietors and the shares 'nten'Jiu ° ^
owned by each ; and transfers of shares shall be entered by him in the books.
books within three months after they are made, in such form and for ' '
such fees as the directors order. No person shall be deemed a proprie-
tor whose .share or interest is not so entered.
Sect. 5. The proprietors may choose any number of directors and Directors, &c.,
other officers to manage the business; and the directors shall choose one x" 'g ^o"!™"
of their number to be the president of the corporation.
Sect. 6. The directors may make such assessments on each share as AssrsBments,
they find necessary; and on the default of any proprietor to pay an I.',','i"i..'.",!','i''^ '^'^
asses.sment for thirty days after notice thereof, they may sell by pvdjlic k. s w, §7.
auction so many of his shares as will be sufficient to pay the same with
necessary charges ; the sale of such shares being first advertised three
weeks successively in some news]iaper printed in the county, or notifica-
tions thereof being posted up thirty days at least before the sale in some
public places in the city or town. All sur]>Ius moneys arising from the
sale shall be paid to the owner of the shares sold.
Sect. 7. The shares shall be deemed personal estate, and be trans- simrps.per-
ferable by such mode of conveyance in writing as the corporation deter- _^™"' '^'**''**'
mines. n- s. 4o, § s.
Sect. 8. Each corporation may purchase and hold real estate neces- Keai estate,
sary for the purpose of its association not exceeding thirty thousand K-S.-iu. §8.
dollars in value.
Sect. 9. A corporation may, with the assent of the mayor and alder- corporation
men or selectmen in writing, dig uj) and open any street or wa}' for the "'("{i^'ifygf^,.
purpose of ])lacing such jiipes as are necessary in constructing its aque- ii.°s. -iu, § u.
duct, or for rej)airing or extending the same: provkkd, the same be
done in such manner as not to prevent the convenient jjassing of teams
and carriages.
Sect. 10. Contracts made by or with a corporation shall remain in Liability of cor-
force after its dissolution. The "last shareholders shall continue liable !Hs"Ih,?io''n*of
and capable as a corporation in all suits respecting such contracts and eunujuuy.
agreements until they are performed : provided, that suit is commenced ■ ■ ■ » ■
within six jears after the dissolution, or within the like time after the
right of action accrued.
Sect. 11. If no corporate property can be found to satisfy a judg- if no corporate
ment recovered against the shareliolders after the dissolution, and it is v[,'i'Sli'abic'
not satisfied within six months after it is recovered, the judgment cred- for debts.
itor may satisfy the same out of the private estate of such sliaieholders " ' ' '
or anyof them, in the same manner as if the judgment had been against
them in their private ca))acit)'.
Sect. 12. If the corporation at its dissolution is seised of real estate, iTpon dissoiu-
the several ])ersons wdio are then proi>rietors sliall become tenants in """e^Jom-"*''
common thereof in proiiortion to the sliares or interests which they then mcin.
respectively hold in the stock of the corporation. " ■ ' ' "
Sect. 13. Whoever shall maliciously injure an aqueduct or any of Penalty for in-
its appurtenances shall foifeit a sum not exceeding one hundred dollars, {\™^^ '"'"'^"
to the use of the city or town in wliieh the oftonce is committed, to be n.s.4o, §14.
recovered in an action of tort ; and shall pay treble the amount of the ''^''~'
damages sustained by the corjioration, to be recovered in a like action.
Sect. 14. A city or. town in which such aqueduct is situated may Towns to have
put conductors into the pipes for the purpose of drawing therefrom, free "se of water ia
O/l
AGRICULTURAL AND HORTICULTURAL SOCHTTIES. [ChAP. 66.
case of fires.
K. S. 40, § 15.
"Warrants of
distress for
diimages, as
.'lu'-ainst rail-
road corpora-
tiuna.
1.S51, 2S9, § 1.
See Ch. 63, §§33,
34.
Application,
when to be
filed.
1861, 289, §2.
of expense, as much water as is necessary when a building is on fire
tlierein : provided, that the conductors are so secured tliat water shall
not be drawn therefrom unless for the purpose of extinguisliing fires.
Sect. 15. When, ujion the application of a person who lias sustained
injury in his lands, or by the diversion of water, from tlie operations of
an aqueduct corjioration, damages have been assessed against such cor-
poration by county commissioners or the verdict of a jury, in pursuance
of authority conferred upon them by tlie act incorporating the company
or otherwise, the commissioners may issue warrants of distress to com-
pel jwyment of such damages with interest and costs, in the manner
and with the limitations presci'ibed in relation to railroad corporations.
Sect. 16. No such damages shall be recovereil or allowed against a
coi-poration, except for injuries sustained within three years next pre-
ceding the filing of the application to the county commissioners.
CHAPTER 66.
OF AGRICULTURAL AND HORTICULTURAL SOCIETIES.
Section
1. Agricultural societies may be entitled to
annual sum from the treasury, by, Ac.
2. Societies claiming allowance to file certifi-
cate.
3. Bounty.
4. Restriction on premiums.
6. Societies to make aunual returns, with pas-
sages, Ac, marked.
6. Forfeiture of bounty.
7. Premiums to be olfered by societies, &c.
8. for trees for ship timber.
9. Surplus to be at interest.
10. To what societies provisions apply.
11. Cattle shows regulated.
Section
12. Penalty.
13. Extent of foregoing provisions.
14. Marshals to be appointed to execute regu-
l.ations ; to have powers of constables.
15. Field crop for premium to be weighed, &c.
16. Time of annual exhibitions.
AGRICULTURAL, IIORTI0ULTi:RAL, AND ORN.\-
Mli.NTAL TREE ASSOCIATIONS.
17. Ten or more persons may become a corpo-
ration. Powers and privileges.
farmers' clubs.
18. Farmers' clubs to receive publications, &c.
Agricultural
societies may be
entitled to an-
nual sum from
the treasury,
by, tfec.
U. S. 42, § 1.
1852, 246.
Societies claim-
ing allowance
to file certifi-
cate.
E. .S. 42, § 3.
IS47, 09, § 1.
1852, 142, § 4.
1853, 127, § 1.
Bounty.
K. S. 42, §3.
1847, C9,§2.
Restriction on
premiums.
1850. isi, §1.
1859, 2.32, § 1.
Section 1. Every incorporated agiicultural society whicli has raised
by contribution of individuals and put out at interest on public or pri-
vate security, or invested in real estate, buildings, and appurtenances,
for its use and accommodation, the sum of one thousaml dollars, as a
capital appropriated for the uses of the society, shall be entitled to re-
ceive in the month of October annually, out of the treasury of the com-
monwealth, the sum of two hundred dollars, and in that jiroportion
annually for any greater sum so contributed and put at interest or in-
vested ; but no society shall receive from the treasury more than six
hundred dollars in one year.
Sect. '2. Every society which claims said bounty shall annually on
or before the tenth day of December, file in the ofiice of the secretary
of the board of agriculture a certificate signed by its ]iresident and treas-
urer, specifying under oath the sum so actually contributed and put at
interest or invested in real estate, buildings, or appurtenances, for its
use .and accommodation, and then held so invested, or well secured as a
capital stock.
Sect. 3. The amount of bounty to which a society is entitled for
any year shall be ascertained by the certificate last filed by it under the
preceding section.
Sect. 4. No society receiving the bounty shall distribute any part
thereof for an animal or article for which a jiremium is awarded, unless
it was produced within the limits of the society, or the animal has been
Chap. 66.] agricultural and horticultural societies. 377
owned and kept within its limits, by the person to whom the premium
is awarded, for three months next preceding tlie award. And no ani-
mal or article for which a premium has been awarded to the owners by
any such society shall be considered a subject for any further jiremium
of the society, exce]it for qualities different from those lor which the
former jiremium was awarded, or for a higher jjremiuni, and no animal
or article shall be otfered for a premium at inore than one such society
in the same year ; but nothing in this chapter shall aifect, restrain, or
limit, a com)ietitor for premiums oflered by the state board of agricul-
ture or the Massachusetts Society for the Promotion of Agriculture to
be awarded within the incoiporated county agi-icultural societies, but
such premiums shall be subject to the rules and regulations prescribed
by said board or the trustees of said Massachusetts Societj'.
Sect. .5. Every such society shall annually on or before the tenth Societies to
day of December make a full return of its doings, signed by its presi- "uriis.'witii'paB-
dent and secretary, to the secretary of the board of agriculture, em- ""s^^t &»■.
bracing a statement of the expenditure of all money, specifying the k. s. 42, §4.
nature of the encouragement projioscd by the society, the objects for jJJsV n^^^'i
which its premiums have been oft'ered, and the persons to whom they issa', 127I § 1!
have been awarded, and including all reports of committees and all
statements of experiments and cultivation regarded by the ])resident
and secretary as worthy of publication ; and sliall accompany the same
with such general obseiwations concerning the state of agriculture and
manufactures in the state as it may deem important or useful. The
return, whether in ])rinted or manuscript form, shall be marked in sucli
manner that those passages in the several reports and statements deemed
by such officers most worthy of public notice, study, and ajiplication,
may be easily distinguished.
Sect. 6. A society which neglects in any year to comply with the Forfeiture of
laws relating thereto, or with the regulations of the board of atrricul- i'",""*,v,' c i
ture, shall not be entitled to the bounty of the state the year next is-vs, 127, §x
succeeding. j^!,'; o^^.V 1 1
Sect. 7. Every society which receives said bounty shall oft'er annu- Premiums to he
ally, by way of jiremiums, or shall otherwise ajiply for the encourage- J^er&'cl'^ ^""^"^
ment or improvement of agriculture or manufactures, a sum not less n.s. «, §4.
than the amount so annually received, and shall oft'er such premiums '^'-'■''^
for agricultural experiments and in such manner as the state board of
agriculture requires.
Sect. 8. Every such society shall annually offer such premiums and for trees for
encouragement for the raising and preserving of oaks and otlier forest j|{"s'™'ro'
trees, as to it seems projier and best adapted to perjjetuate within the
state an adequate sup])ly of ship timber.
Sect. 9. All money oflered for premiums which is not awarded or Surplus to be at
paid shall be put out at interest and added to the capital stock of the b. 8^*^12', § 5.
society.
Sect. 10. The foregoing provisions shall not extend to an agrieul- Towhatsode-
tural society incorporated for any tenitory less than a county, except appiy™^'^"*"'
by special enactment for that purpose. K. s. 42,§r.
Sect. 11. Incorporated agricultural societies m.ay by their officers Cattle shows
define and fix bounds of sufficient extent for the erection of their cattle i>ys.''iii''§ 8.
pens and yards, and for convenient passage ways to and about the same,
on the days of their cattle shows and exhilntions, and also for their
ploughing matches and trials of working oxen ; within which bounds
no persons shall be permitted to enter or pass unless in conformity with
the regulations of the officers of such societies.
Sect. 12. Whoever contrary to the regulations, and after notice penalty.
thereof, enters or iiasses within the bounds so fixed, shall fortcit a sum JV,?",i''/-^"
not exceeflnig nve aoliars.
Sect. 13. The foregoing provisions shall not authorize a society to
32* "48
378
AGRICULTURAL, &C., ASSOCIATIONS ; FARMERS' CLUBS. [ChAP. 66.
Limit of
bouutls.
U. S. 4-', § 10.
Slarshals to be
appointed to
execute regula-
tions ; to liave
powers of con-
stables.
K. S. 42, § 11.
Field crop for
preniiura to be
weiglied, &o.
ltio9, lai, § a.
Time of annual
exliibitions,
ISjO, J IJ, § 3.
SeelSCO.Ch. 125.
occupy or include within sucli bounds the land of any ];erson without
his consent, nor to obstruct the public travel on any turnpike or jjublic
highway.
Sect. 14. The officers of each society may appoint a sufficient num-
ber of suitable persons, inhabitants of the county, to act as marshals at
cattle shows and exhibitions, who shall have and exercise all the powers
of constables in relation to the preservation of tlie jjublic ])eace and the
service and execution of criminal process within the respective towns
where such shows and exliibitions are held, and which process may be
directed to them accordingly ; and they shall exercise their office from
twelve o'clock at noon of the day preceding the commencement of such
shows and exhibitions until twelve o'clock at noon of the day succeed-
ing the termination thereoti and no longer.
Sect. 15. No incorporated agricultural society shall award a pre-
mium for a field crop, without satisfactory evidence under oath presented
to its committee or other officers, that the whole merchantable crop en-
tered for jiremium was weighed when harvested if a gi'ass or root crop,
and when threshed or husked if a grain or corn cro]) ; but such society
may require further modes of ascertaining the merchantable amount of
product, either at the time of harvesting or at any other times.
Sect. 16. The agricultural societies shall commence their annual
exhibitions as follows : —
Middlesex North, and Highland, on the last Thursday but two in
September ;
Middlesex South, and Hampden East, on the last Tuesday but one of
September ;
Middlesex, and Hampden, on the last Thursday but one of Sep-
tember ;
Essex, WorcesterNorth, [anc?^erA;sAiVe,]onthe last Tuesday of Sep-
tember;
Housatonic, on the last Wednesday of September;
Franklin, Worcester County West, and Norfolk, on the last Thurs-
day of September ;
Berkshire, Worcester, and Bristol, on the first Tuesday of Octo-
ber;
Hampshire, Hampden, and Franklin, Worcester South, and Plymouth,
on the first Thursday of October ;
Barnstable, on the secoiul Tuesday of October;
Nantucket, and Hampshire, on the second Thursday of October;
Martha's Vineyard, on the third Tuesday of October.
AGEICtTLTTTRAL, HORTICUXTURAL, AND ORNAMENTAL TEEE ASSOCIATIONS.
Ten or more Sect. 17. Ten or more persons in any county, city, or town, within
persons may be- ji,y state, who by agreement in writing associate for the inir|)ose of en-
come a corpora- . ' . '', ^ , . , ^^ . . I ' ,.
tion. couraging agriculture, liorticulture, or tor improving ami ornamenting
privileges"'* ^^^^ streets and jiublic squares of any city or town by jjlantiiig and culti-
183.3, sFa. vating ornamental trees therein, may become a corporation by such
name as they assume tlierefor, upon calling their first meeting and being
organized in the manner ])rovided in sections ten and eleven of chapter
thirty-three; and shall thereupon during the pleasure of the legislature
have for their purposes all the nghts, powers, and privileges given by
sections ten to thirteen of said chapter inclusive, and may hold real and
personal estate not exceeding ten thousand dollars.
FARMERS CLUBS.
Farmers' clubs Sect. 18. Fanners' clubs jtroperly organized and holding regular
to receive pub meetings shall, upon application made annually in November to the
Chap. 67.] proprietors op wharves, general fields, &c.
379
seeretniy of the state board of .igriciilture, receive copies of the report lications, &c.
of said board and its other pubhcations iu proportion to the number of '**'*' ""■'' ^ ^'
their members and apphcations so made. Chibs receiving such benefits
sliall annually in October make returns to said secretary of the agricul-
tural experiments made by them, and of the reports of tlieir committees.
CHAPTER 67.
OF PROPRIETORS OF WHARVES, GENERAL FIELDS, AND REAL ESTATE
LYING IN COMMON.
Section
1. Prupriotors of common lands may be cor-
poration.
2. Justice may call meeting".
3. Notice, &c,, of first meeting,
4. Proprietors when assembled may organize,
5. Tenure of offices.
fi. Clerk to be sworn. Duty of.
7. Treasurer, duty aud power of.
8. l*roprictorH may sue and be sued, &c.
9. may make by-laws. '
10. Powers of moderator.
11. of proprietors at le<jal meeting.
rz. Votes.
Vi. Proprietors may raise money, &c.
14. Assessments, how collected.
15. Sale of shares to pay assessments.
Ki. Owner of shares sold may redeem.
17. Wiioii pro]>rictor9 may sell, &c.
18, After dissolution, records to be deposited,
&c.
10. Certain corporate powers, &c., to remain.
20. After division, meetings maybe held, &c.
GENERAL FIELDS.
21. Proprietors of general fields may hold
meetiu<T;s, &c.
22. Justice may issue warrant.
23. Meetings, how notified.
24. Votes. Proxies.
Sectiox
25. Choice of clerk, asBessors, &c. ; to be sworn.
26. field drivers.
27. Proprietors may make regulations, &c.
28. of enclosed land not to vote.
2D. trespassing, &c., to be liable as strangers.
30. may raise money, llemedy lor over-
assessment.
31. Clerk to issue warrant for collecting, &c.
32. Projjrietor injured by beasts of stranger.
33. Apportionment offence, &e.
34. Proprietors when not to maintain fence.
35. Expense of apportioning fence, &c.
36. Proceedings when part offence assigned is
deficient.
37. Party neglecting to repair, liable to doable
damages, &c.
38. Liability to repair in case of sudden de-
struction, &c.
39. Any proprietor may enclose his land.
40. Proprietors to run lines once in two years,
&c.
41. Superior court may order proprietors to
fence land as general field.
42. Order not to be made, unless, Ac.
43. After order, proprietors to have powers as
if enclosed by consent.
44. Division may bo made of general field by
petition, &c.
45. Same subject.
46. Proprietors may discontinue general fields.
Sectiox 1. When lands, wharves, or other real estate, are held in
common by five or more proprietors, they may fonn themselves into a
cori)oration in the manner and for the pni*]>oses hereinafter mentioned.
Sect. "2. Upon the application of Hve or more ])roprietors to a justice
of the peace, he shall issue his Avarrant to one of the aj>j)Ucants directing
him to call a meeting of all the proprietoi-s, and expressing in the war-
rant the time, place, occasion, and purpose, of tlie meeting.
Sect. 3. The meeting shall be called by ]»osting up a notice contain-
ing the substance of the warrant, and signed l)y the person to whom
the warrant is directed ; which notice shall fourteen days at least before
the meeting be posted up in one or more public places in the town, and
]Mxl)lislied iu a newspaper printed in the county where the estate lies.
If there is no such i)aper then in a newspaper ])rinted in some adjoining
county.
Sect. 4. The proprietors when asseml)led jnirsuant to such notice
may, upon a vote of a majority in number and interest of the votes
which all the proprietors could cast if present, proceed to organize
themselves as a corponition under the provisions of this chapter ; an 1
they may thereupon choose a clerk, treasurer, collector, and such com-
Proprietors
may be corpo-
ration,
K.S. 43, § 1,
10 Met. 408,419.
Justice may call
meeting.
K.S. 43, §2.
Notice, &c., of
first meeting.
K.S. 43, §3,
Proprietors
when assem-
bled may organ-
ize, &c.
K.S. 43, §4.
380
PROPRIETORS OF WHARVES, GENERAL FIELDS, &c. [ChAP. 67.
Tenure of
offices.
K. S. 43, § IS.
Clerk to be
sworn. Duty
of.
E. S. 43, § 14.
Treasurer, duty
and powers of.
it. S. 43, § 15.
Proprietors
may sue aud be
sued, &c.
K. S. 43, § 13.
may make by-
laws.
K. S. 43, § 11.
Power of mod-
erator.
E. S. 43, § 13.
ofproprietors
at legal meet-
ing.
E. S.43,§o.
Votes.
K. S. 43, § 0.
Proprietors
may raise
mouey, &c.
E. S. 43, § 7.
5 Groenl. IW.
7 Greenl. 404.
2 Mass. 475.
10 Mass. S.
Assossmeuts,
how collt'i'ti'd.
E. S. 43, § s.
4 Greeul. Zi7.
Sale of shares
to pay assees-
mentB.
E. S. 43, § 9.
Owner of
shares sold may
redeem.
mittees and other officers, as they think necessary for the manas^ement
of their affairs, and may agree uj^on and direct the manner of calling
future meetings.
Sect. 5. AH officers chosen by tlie proprietors shall hold their offices
until their successors are chosen and qualified.
Sect. 6. The clerk shall be sworn, and shall record all votes, orders,
and proceedings, of the proprietors, in books to be kej)t in his custody
for that jnirjiose until tliej' are delivered to the clerk of the city or
town as hereinafter provided.
Sect. 7. The treasurer shall demand and receive all money due or
belonging to them, shall sue for and recover in his own name to their
vise all fines and penalties incurred under sections nine and ten, shall
pay out all money in his hands according to the order of the proprie-
tors, and shall render his accounts thereof from time to time when
required.
Sect. 8. Such proprietors may sue and be sued and prosecute and
defend as a coqiorate body for any matters concerning their common
property ; and any action brought bj' them for trespass on their c(3m-
mon property may be pleaded in abatement or answered in bar of an
action for the same trespass brought by them or any of them in their
individual capacity.
Sect. 9. They may make by-laws not repugnant to the laws of the
state for the orderly conducting of their business, Viith penalties for the
breach thereof not exceeding three dollars for any one offence : pi-o-
vided, that such of them as have penalties annexed shall be approved
by the commissioners in the county where the estate lies.
Sect. 10. The moderator presiding at any meeting of the proprie-
tors shall have the same power as the moderator of a town meeting,
except the power of confining or causing any person to be earned out
of the meeting ; and all persons who resist or disobey his orders shall
be subject to the pecuniary penalties provided for the like offences at a
town meeting.
Sect. 11. The proprietors may at a legal meeting exercise any of the
powers granted to them in this chapter; but no business shall be acted
on unless it is expressed in the notice for the meeting.
Sect. 12. Each proprietor shall be entitled to vote according to the
number of his shares or the amount of his interest when the same is
known, and when not known, the proprietors shall vote equally. Ab-
sent proprietors may vote by jiroxy authorized in writing.
Sect. 13. Tlie projirietors may by vote adojit such measures as they
think proper for managing, im|iroving, or dividing, their common jirop-
erty, and for carrying on their business ; and for this ]iur]iose they may
raise money by assessments on the proprietors in proportion to their
res]iective rights and interests in the property.
Sect. 14. If a proprietor neglects to jiay the sum so assessed on him
for the space of six months after demand therefor by the collector or
other proper officer, or .after a notice of such assessment po.sted and
published in the manner before prescribed for the first meeting, the
committee of the jjrojirietors or other officers authorized l)y them for
that purpose, may sell by ])ublic auction so much of the right or share
of such proprietor as is sufficient to pay the sum so due from liim with
all the reasonable charges of the sale, and shaU give to the purchaser
a deed of the part so sold.
Sect. 1.5. No such sale shall lie made until notice is given of the
time and place ajipointed therefor by posting and publishing the same
in the manner before provided for notifying the first meeting, thirty
days at least before the time ajipointed for the sale.
Sect. 16. The ])ropriotor of the share or part sold may, at any time
within one year after the sale, redeem the same by pajTng to the pui"
Chap. G7.] proprietors of general fields. 381
chaser or liis assigns the sum for which it was sold with interest at the u. s. 43, § lo.
rate of twelve per cent, a year from the time of the sale. ]
Sect. 17. When the ]iroprietors are ten or inore in nnmber, they wii™ rroprie-
may, njjon a vote of more than two-thirds botli in nnmber and interest ^e** "''''' *'"'"'
at an}' legal meeting, sell such estate and divide the proceeds thereof, inc, iso.
and not otherwise.
Sect. 18. After the final division of their common property the pro- After dissoiu-
prietors may cause their records to be de2)osited with the clerk of the bod'cposited, "
city or town in which the land or any part of it lies; and the clerk may ^'c-^
make and certify co))ies from the records in like manner as the clerk of
the ]iro])rletors miglit have done.
Sect. 19. A linal division of the common property shall not dissolve Certain corpo-
the corporation until the expiration often years thereafter; but the "0° to rcmain.
persons who were members and proprietors at the time of the division, k. s. 43, §i8.
and their resi)eetivc heirs, shall retain their corjwrate powers for the
purpose of collecting all taxes, debts, and effects, due or belonging to
the corjioration, and shall be liable to pay all its debts.
Sect. 20. The proprietors may, after such division and within ten After division,
years, call and hold meetings and vote and raise money by assessments ^ hei'if 4!""^
as before ]irovided for the payment of their debts and all otlier charges K. 8.43, §19.
and demands against them, and may do all other lawl'ul acts necessary
for closing their business.
GETTERAL FIELDS.
Sect. 21. When several distinct lots or pieces of land are enclosed Proprietors of
and fenced in one common field, or when all the proprietors of such nlilv'il'oia meet-
lands agree to enclose them in that manner, the proprietors if not less >"s^< *«■
than five in number may in the manner hereinafter ])rovided hold regu- ■ • ' s •
lar meetings from time to time for the purpose of managing their com-
mon concerns.
Sect. '2'2. Upon the ajiplication of two or more jiroprietors to a .Tustieemay
justice of the jieace, he shall issue his warrant to one of the applicants u's! Is!"??. '
directing him to call a meeting of the proprietors and expressing in the » Gray. 48?.
warrant the time, place, and ]iui-]iose, of the meeting.
Sect. 23. The meeting shall be called either in the manner pre- Jieetinp.how
scribed in this chapter for calling meetings of tenants in common, or by B^sl'iV, §22.
jjersonal notice served on each ])roprietor fourteen days at least before
the time ajipointed for the meeting.
Sect. 24. Each proprietor may vote according to the relative Votes. Prox-
amount or value of his interest, when known; and when not known, k!'s. 43, §23.
the proprietors shall vote equally. Absent proj)rietors may vote by
pro.xy authorized in writing.
Sect. 25. The proprietors may from time to time choose a clerk. Choice of cieri;,
three or more assessors, a collector, and such other oflicers as they find "o^be Mvorn.'^' '
necessary; all of whom shall continue in office until removed by the li-S. 43, §24.
projirietors or until their successors are chosen and quaUfied ; and the
clerk and assessors shall be sworn.
Sect. 26. They niay choose one or more field drivers, who shall field drivers.
have and exercise the same powers with respect to the general fields ' '
that are exercised by field drivers chosen by a town.
Sect. 27. They may adopt such rules as to pasturing the lands and Proprietor may
other matters in which they have a common interest as they think just ti'ons,&e?"^
and equitable and most for the general good ; but in all other respects, i'- s. 43, §2?.
each pro]irietor may manage and cultivate his land as he thinks best.
Sect. 28. At meetings of proprietors for adopting rules or regu- nf enclosed
lati(ms as to pasturing, where a proprietor's land is enclosed for his voU!""""
exclusive benefit, it shall not be valued or reckoned in determining his issc, 216.
right to vote on questions relating to pasturing his lands.
Sect. 29. If a proprietor puts into the general field any horses, trespassing-,
582
PROPRIETORS OF GENERAL FIELDS.
[Chap. 67.
&c., to be liable
as strau>;erB.
R. S. 43, § 35.
Proprietors
may raise
inoiioy.
Keme'tly for
over assess
meut.
H. S. 43, § 25.
Clerk to issue
warrant for col-
lecting, &c.
H. S. 43, § 26.
See Ch. 12.
Proprietor in-
jured by beasts
of stranger.
K. S. 43, § 37.
Apportionment
offence, &c.
K. S. 43, § 28.
Proprietors
when not to
maintain fence.
K. S. 43, § 29.
Expense of ap-
portioning
fence, Ac.
K. S. 43, § 30.
Proceedings
when part of
fence assigned
is (Jeiicient.
K. S.43, §31.
Party neglect-
ing to repair,
liiiijle to double
damages, «fec.
K. S. 43, § 32.
1S62, 312.
Liability to re-
pair in case of
sudden destruc-
tion, &c.
It. S. 43, § 33.
cattle, or other beasts, contrary to the regulations of the proprietors,
either by putting in more than the number allowed him, or before the
day fixed for that purjiose, or by keeping them therein longer than the
time limited, he shall be considered a trespasser, and his beasts may be
impounded as taken doing damage, in like manner as if he owned no
land in the general field.
Sect. 30. The proprietors may raise money from time to time for
defraying their common charges and managing their affairs, which
money shall be assessed by the assessors upon the several projirietors
in proportion to their respective interests ; and any proprietor who
thinks himself overrated in such assessment may apply for relief to the
county commissioners, who shall hear and determine the case, and
whose judgment thereon shall be final.
Sect. 31. The clerk shall issue his warrant to the collector, re-
quiring him to collect all sums so assessed and to pay over the same
to the clerk or other proper officer according to the orders of the pro-
prietors. The collector shall collect said sums in the same manner as
collectors of towns are authorized to collect town taxes.
Sect. 32. If a proprietor is injured in his lands by the beasts of a
stranger, he shall have the same remedy therefor as if his land had
been enclosed and used separately.
Sect. 83. The whole fence enclosing such general field shall, so far
as it may be found convenient, be apportioned among the proprietors
according to the number of acres held and cultivated or otherwise used
by each one ; and the part to be maintained by each proprietor shall be
set out and assigned to him by any two or more fence-viewers, unless
the projirietors agree on an a]i]iortionment of the fence among them-
selves. In all cases the proportion of fence so assigned to each pro-
prietor shall be recorded by the clerk in the books of the proprietors ;
and where there is no clerk, the record shall be made by the clerk of
the city or town in which the general field is situated.
Sect. 34. So long as a proprietor declines to cultivate his land, or
to use it for pasturing, the growth of wood, or otherwise, he shall not
be required to maintain any part of the fence, nor to pay any tax or
assessment on account of his land.
Sect. 35. The expense of apportioning the fence and also of
making and maintaining such part thereof as cannot be conveniently
and justly assigned to any one projirietor, shall be borne by all the
proprietors liable to be taxed, in proportion to their respective inter-
ests ; and the ])art assigned to each proprietor shall l)e made and main-
tained by himself so long as he uses his part of the general field for
pasturing, jslanting, mowing, or otherwise.
Sect. 36. If the ]>art of the fence assigned to a pro]irietor becomes
deficient and he does not repair it within three days after notice of
such deficiency given him by a fence-viewer of the town, it may be
repaired by any other proprietor ; and such repairs may be examined
by any two or more fence-viewers, and if adjudged by them to be suf-
ficient, they shall ascertain and detei-mine the cost of the repairs and
make a statement thereof and of the amount of their fees in writing
under their hands.
Sect. 37. The person making such repairs may demand of the
proprietor bound to make them, or of the tenant holding under him,
double the cost of the re]iairs and of the fees of the fence-viewers so
ascertained ; and if the same is not paid within one month after notice
and demand, he may recover the same in an action of tort.
Sect. 38. If a part of the fence is suddenly Ijlown down or carried
away by a flood or tempest at a time when the crojis of grain or grass
in the field are thereby exposed to immediate destruction or injury, the
proprietor to whom that ]iart of the fence was .•tssigned sh.all be bound
Chap. 67.] proprietors of general fields. 383
to repair the same within twenty-four hours after notice thereof given
him by .a fence-viewer; and if he fails so to do, the fence may be
repaired by any otlier proprietor, who may recover double the cost of
the repairs and fees, in the manner provided in the jireceding section.
Sect. 39. Any proprietor may enclose his hind at his own exjjense ; Any proprietor
and so long as he keeps it enclosed with a sufficient fence, may culti- ™[.v ™cioBe his
vate and use it as he thinks fit ; and during such period, so far as such k. s. 43, §30.
enclosed land is concerned, he shall neither be assessed for any ex- '^''' ''
penses incident to the common field, nor exercise any control over the
portion thereof not enclosed.
Sect. 40. Every proprietor of land lying unfenced in a general Proprietors to
field shall once in every two years, if requested by the owner of the h"",™ years"''
adjoining land, run lines with such owner between their lots, and shall *c.
make and kee]> up the boundaries between them by sufficient bound i^^.'sij.
stones, at their joint exi)ense. If he fiiils so to do after sever, days'
notice by the adjoining owner, he shall forfeit two dollars, to be recov-
ered by such adjoining owner to his own use in an action of tort.
Sect. 41. When five or more distinct lots or pieces of land are so Superior eomt
situated as to render it for the interest of the proprietors to enclose prfetors to'"^**"
them in one common field, the su])erior court for the county in which ii-n<-e land ns
the land or any part of it lies may order it to be so enclosed, if ujion a fj.'s.^V §^3i).'
hearing of the parties it appears to the court to be for their common ^'^'■'' '^•
benefit.
Sect. 42. No such order shall be made unless upon the apjilication order not to be
of the greater part in interest of the jirojirietors, and after due notice ""'''' '"^<^'*»'
to all other persons interested and a full he.-ning thereon. k. s. 43, §40.
Sect. 43. After a common or general field is so established by an After order,
order of the court, the further proceedings in relation thereto shall be [J,"j;™\»^^rs as
the same as are provided when a field is so enclosed by the consent of if enclosed by
the proprietors; and the proprietors shall be entitled to the privileges ii. s. 43i§4i.
and subject to the duties before pi-ovided in this chapter with respect to
the jiroprietors of fields enclosed by consent.
Sect. 44. Three or more proprietors of lots in a general field lying Division maybe
within one genei-al fence or enclosure may, by a petition in writing to Sity petition,
the ]iro]irietors of such field at any meeting of said projirietors legally *<'•
warned fir the pur])0se, request to have their lots either alone or jointly ' ' '
with any otlier lots in such field divided from the remainder of the field
in order to be enclosed in one common fence and occupied by them as
an entire field separately from the other proprietors. If the majority of
]>roprietors in interest jjresent at such meeting withhold or refuse their
assent to such division, the superior court may ujion the like ap]ilication
apjioint five disinterested and suitable ]iersons within the county where
the general field is situated, to be a committee to make the division,
if they deem it expedient, and to assign to each field its pro])Oition
of the partition fence which becomes necessary by reason of such divis-
ion, to be ke]it up and maintained by the projirietors of the said general
fields respectively.
Sect. 45. The committee shall as soon as may be after their appoint- Same subject,
ment make return of their doings under their hands to the court ; and ■ ' ■ • > s
after its acceptance by the court the fields so divided shall bo deemed
sejiarate general fields, and the ]:iro]irietors of the field set otl" and the
remaining proprietors of the original field respectively shall be distinct
and separate pro]irietary bodies, having like powers and jirivileges and
subject to like duties and liabilities as the projmetors of the original
general field licfore the division ; but no order for such division shall be
made, and no such committee shall be appointed, until the other pro-
prietors have had notice of the petition for such division ; which notice
shall be given by serving the clerk of the pro]irietors with a copy of the
petition thirty days at least before such order or appointment is made.
384
Proprietors
may discon-
tinue g-eueral
lields.
K. S. 43, § -a*.
POWERS AND DUTIES OF CORPOUATIOXS. [CHAP. 68.
Sect. 46. "When tlie si't^iter part in interest of the proprietors of a
common field, whether established by consent or by an order of court,
think best to discontinue it, tliey may do so at any legal meeting warned
for the purpose; but the discontinuance shall not take place until the
expiration of six months after the vote for that purpose.
CHAPTER G8.
OF THE POWERS, DUTIES, AND LIABILITIES, OF CORPORATIONS.
Section
1. Corporations, general powers of.
2. when to be orgauizod.
3. first meeting- of, under charters, how no-
tified.
4. under general statutes.
5. In easeof death, &c., of officers, justice may
call meeting.
6. Officers may be elected, &c.
7. By-laws.
8. May convey lands.
9. Shares not to be issued for less than par.
10. Treasurer, &c., to keep, &c., list of stock-
holders, &c. Penalty.
11. Executors, &c., may vote.
12. Records of transfers to be made and kept in
the state.
13. In transfers of stock as collateral security,
debt to be described, &c.
14. Record of transfer to be exhibited to cred-
itors upou request.
15. Property of foreign corporations subject to
legal process. Mode of giviny notices.
16. Stockholders liable individually for all
debts due for labor within six months pre-
ceding demand, Ac.
Remedy in equity against officers, &c.,
when liable for debts, &c.
Executor, &c., not liable as stockholder, &c.
List of unclaimed dividends, &c., to be pub-
lished.
20. Certain corporations to make returns of
stocks, &c., to assessors, and register
names, &c.
17.
IS.
19.
Section
21. Banks and insurance companies to return
collaterals.
22. Penalty lor neglect or false return.
23. for transfer to avoid taxation, &c.
24. Warrants of distress against corporations
for damages. Sec.
25. Franchise, &c., how attached on mesne
process.
26. may be sold on execution, &c.
27. Mode of sale, &c.
28. Sale may be adjourned.
29. Who shall be deemed highest bidder.
30. Officer's return to transfer the rigiit of toll,
&c.
31. Purchaser to have the same remedies for
damages as corporation.
32. Liabilities to continue.
33. Corporation may redeem franchise.
34. Proceedings, where had.
35. Corporations may be dissolved upon peti-
tion, &c.
36. to continue fhree years after charter ex-
pires, to close concerns.
37. When corporations expire, &c., receivers to
be appointed.
38. Equity jurisdiction of S. J. C.
39. Receivers to pay debts and distribute sur-
plus.
40. Corporations now existing may act under
charters, except, &c.
41. Certain charters to be subject to alteration
or repeal.
Corporations,
general powers
of.
R. S. 44, § 1.
10 Mass. 91.
7 Met. 592.
when to be
organized.
1&56, 204, § 1.
first meeting
of, how notified.
K. S. 44, § 3.
1K55, 140.
10 Mass. 94.
3 Met. 2VJ.
SeeCh. 118,
§117.
Section 1. All coi*i>orations where no other provision is specially
made may in their eoqyorate name sue and be sued, appear, prosecute,
and defend to final judgment and execution ; have a common seal,
which they may alter at pleasure ; elect in such manner as they deter-
mine all necessary officers, Hx their compensation and define their duties
and obligations; and make by-laws and regulations, consistent with the
laws of the state, for their own government, the due and orderly con-
ducting of their affiiirs, and the management of their i)roperty.
Sect. 2. Coq^orations created by charter, if no time is limited
therein, shall be organized within two years fi'om the passage of their
respective acts of incorporation.
Sect. 3. The lirst meeting of such corporations, unless otherwise
provided in their acts of incorporation, shall be called by a notice signed
by the person or a majority of the persons named therein, setting forth
the time, place, and puri)Oses, of the meeting; and such notice shall
seven days at least before the meeting be delivered to each member, or
published in some newspajier of the county where the corjioration is
established, or if there is no such paper, then in some newspaper of an
Chap. 68.] powers and duties of corporations. 385
adjoining county. Tlie jiorsons so named and their associate subscribers
to stock prior to the date of their act, shall be authorized to hold the
franchise or privileges granted until the coi-poration is organized. The
notice of the first meeting of incorporated religious societies may be
affixed to the door or some other conspicuous part of their meeting-
house.
Sect. 4. The first meeting of any coqioration organized under gen- First meeting
eral statutes authorizing the formation of such coqjoration, may be called or^nu-S?"""*
in the manner set forth in the articles of association, or if they make no under general
]irovision, by a notice signed by a majority of the associates and pub- '*'"*"*'^^-
iished in the manner prescribed in the ]ireceding section.
Sect. 5. When by reason of the death, absence, or other legal im- in case of death,
peilimont, of tlie officers of a coqjoration, there is no person duly j'ji'stii". SS^caii
authorized to call or preside at a legal meeting, any justice of tlie ]ieace m'-rting-
in the county where the cor])oration is established may on a written ' '
apphcation of three or more of the members issue a warrant to citlicr of
them, directing him to call a meeting by giving such notice as had been
previously required bylaw; and the justice may in the same warrant
direct such jierson to ])reside at the meeting until a clerk shall be duly
chosen and qualified, if no officer is present legally authorized to preside.
Sect. 6. A corporation when so assembled may elect officers to fill officers may be
all vacancies, .and act upon such other business as may by law be trans- k'^s''']4'^''5
acted at a regular meeting.
Sect. 7. Coqiorations may by their by-laws, where no other pro- By-laws,
vision is specially made, deterniine the manner of calling and conducting s Mettsai."
their meetings ; the number of members tliat sh.all constitute a quorum ;
the number of shares that shall entitle the members to one or more
votes; the mode of voting by proxy; the mode of selling shares for the
non-pa\niient of assessments ; .and the tenure of office of the several offi-
cers. They may annex suitable penalties to sucli by-laws, not exceeding
the sum of twenty dollars for one offence; but no by-law shall be made
by a cor]ioration rejiugnant to its charter, or the laws of tlie state.
Sect. 8. Every coriioration may convey lands to which it has a iiay convey
1 1 A.'l.^ ^ ^ lands.
legal title. k. s. 44, §6.
Sect. 9. Coqiorations having a capital stock divided into shares, shares not to be
unless specially authorized, shall not issue any shares for a less amount iira'npar.*^
to be actually paid in on each share than the par value of the shares >'*■''■■*. iw- .
£,.-,■' ' IWJ, 104, §§1,2.
first issued.
Sect. 10. The treasurer or cashier of every coq^oration shall keep Treasurer, &«.,
an accurate list of its stockholders i^-ith the number of shares owned by ofSockhoiders!
each, wliich shall at al! times, upon written apj)lication by any stockholder, *e.
be exhil)ited for his inspection. If such officer refuses so to exhibit isw, iri, §§ i, 2.
such list, he shall forfeit fifty dollars for each offence.
Sect. 11. An executor, administrator, guardian, or trustee, shall rep- Executors, &e.,
resent the shares or stock in his hands at all meetings of the corpora- "is, lis! §'2.
tion, and may vote as a stockholder. '•' Cush. i92-
Sect. 12. All records of transfers of stock in companies incoi-porated necords of
by the sole authority of this state, shaU be made and kept within the n,;lJ[f, aJ'/j ^^pt
state. The officer of every company whose duty it is to record such j'l,'i"lgi^*'^-
transfers shall at the time of his appointment be a resident within the
state ; and when he ceases to be a resident the office shall become
vacant.
Sect. 13. In transfers of stock as collateral security, the debt or in transfers of
duty which such transfer is intended to secure shall be substantially de- ty'debt to be""
scribed in the deed or instrument of transfer. A certificate of stock ?'^^''ng'''lv*''"
issued to a pledgee or holder of such collateral security shall express on ocu'sh.'ws'.
the face of it that the same is so holden ; and the name of the pledger
shall be stated therein, who alone shall be responsible as a stockholder. Record of trans-
Sect. 14. The treasurer, cashier, or other officer who has the lawful fer to be cxinb-
33 49
386
POWERS AND DUTIES OF CORPORATION'S. [ChAP. 68.
ited to creditors
upoQ reqiR'st.
1838, 98, § 4.
9 Cush. IW.
Property of for
eign corpora-
tions suipjcct to
legal process.
1839, 158.
3 Met. 420, 564.
Stockholders li-
able for dfljts
due for labor
withia six
months preced-
ing demand, &c.
1851, 1.13, § 15.
1851, 252.
1S52, 9.
1855, 146, § 1.
Remedy in equi-
ty against offi-
cers, &c., wlien
liable, &c.
K. S. 3S, §§:il,
32.
R. S. 44, § 22.
8 Cush. U3.
Executor, &c.,
not liable as
stockholder,&c.
ia38, US, § 1.
9 CusU. 192.
List of unclaim-
ed divideuils,
&c., to be pub-
lished.
183?, 56.
Certain corpo-
rations to make
returns of
stocks, &c., to
assessors, and
register names,
&c.
1843, 98, § 1.
1850, 308, § 1.
1851, 133, § 12.
1853, 33, 78.
1855, 4M, § 1.
1850, 252, § ir.
1859, 227.
custody of the records of transfers of shares, upon the written request
of a creditor of the general owner of stock pledged or transferred, shall
exhibit to him the record of such transfer ; and in case of refusal and
of loss to the creditor by reason thei'eof, the corporation shall be liable
for the amount of the loss.
Sect. 15. Corporations created by any other state, having projierty
in this state, shall be liable to be sued and their property sh.airbe subject
to attachment in like manner as residents of other states having ju'op-
erty in this state are liable to be sued and their property to be attached.
Th^ service of the writ shall be made in the manner proviiled in chapters
one hundred and twenty-three and one hundred and twenty-six, with
such further ser\'ice as the court to which the writ is returnable may
order.
Sect. 16. The stockliolders of every corporation organized under an
act of incorporation passed since the eleventh day of March in tluj
year one thousand eight hundred and thirty-one, or which is hereafter
organized under any s])ecial or general act, for manufacturing, mechani-
cal, mining, or quarrying business, cutting and storing ice, or making
of gas, shall be jointly and severally individually liable for all debts
that may be due or owing to all the laborers, servants and apprentices,
of the corpoi'ation for service jjerformed by themselves, their wives,
or minor children, as operatives for such coiporation, within six mouths
next prece<ling the demand made for such debt; and for the recovery
thereof as well as to obtain contribution therefor in case of payment by
any stockholder, the party entitled may have an action of contract
against the jiarty or parties liable to pay or contribute.
Sect. 17. When the officers, stockholders, or members, of a corpora-
tion, or any of them, are liable for any of its debts, or for their acts or
omissions respecting its business, or when some of them are liable to
contribute for money paid by others on account of such debts, acts, or
omissions, the party entitled may, instead of any remedy otherwise
provided, maintain a suit in equity in the supreme judicial court.
Sect. 18. Persons holding stock in a corporation as executors, ad-
ministrators, guardians, or trustees, shall not be jjcrsonally subject to
any liabilities as stockholders ; but the estates and funds in their hands
shall be liable in like manner and to the same extent as the testator,
intestate, ward, or person interested in the trust fund, would be if they
were respectively living and competent to act and held the stock in
their own names.
Sect. 19. Each corjioration in this state shall once in every five
years pultlish in some newspaper in the city of Boston, and also in some
newspaper, if there is any, in the county where the corjioration is estab-
lished, a list of all dividends and balances which have remained un-
claimed for two years or more, with the names of the jiersons to whose
credit the dividends or balances stand ; which publication shall be con-
tinued in three successive papers.
Sect. 20. Banks, insurance companies, corporations mentioned in
chapters sixty and sixty-one, railroad, bridge, turn])ike, canal, and aque-
duct corporations, shall register the names and residences of their stock-
holders, and all changes therein of which they are notified; shall issue
no certificate to a juirchaser until he informs the corporation of Jiis
actual place of residence, and shall annually between the first and tenth
days of May return by mail or otherwise to the assessors of each city or
town in the state in which any shareholder in the cor])oration resided
on the first day of said month, tlie name of each shareh(jlder so residing,
with the number of shares belonging to him on said day, and the jiar
and cash market value of such shares; and shall also state the whole
amount of the capital stock of the corporation, and the amount, at the
value at which it was last assessed, of its real estate subject to assess-
Chap. 68.] powers and duties of corporations. 387
ment on the first day of May, and of machinery as last assessed to it in
the city or town where its place of business is situated.
Sect. 21. Banks and insurance companies shall at the same time and Banks and ia^
in like manner make return to the assessors of each city and town in the Ji"o7 to return''
state in which any borrower of money on collateral security resided on coiiatcv.as.
tlie first day of May in that year, of the number of shares of coqiorate issol 25-.% § ir.
stocks of all kinds then held by them as collateral security for the debt
or liability of such person, givint^ the name of the person, the number
of shares, the denomination of the stocks, and the par and cash market
value thereof, if known.
Sect. 22. If a corporation refuses or neglects to make the retums penalty for nog-
required by the two preceding sections or makes a false return, it shall J>^ct, or false re-
forfeit for every oflence a sum not less than fifty nor more than one isso, .308, § ».
thousand dollars, to the use of the city or town in which tlie shai-e- 1I51;' oj'l;'' * 17.
holder resides, to be recovered in an action of tort.
Sect. 23. If a shareholder fraudulently transfers a share in either of for transfer to
the corporations mentioned in section twenty, to avoid taxation, he shall J^j."'*' *"-'^'>*'°"'
forfeit to the use of the city or town in which he resides one-half of the is43, os, 53.
par value of the shares thus transferred to be recovered in an action of iss^J ;s.' '"'
tort ; and if he wilfully misinforms the corjjoration respecting his name "^'■'' ■■^''•
or place of residence, or having changed his residence to another city
or town in this state, wilfully omits to give immediate notice thereof to
the corporation, he shall foifeit a sum not exceeding one hundred dol-
lars.
Sect. 24. When damages have been assessed in favor of any jierson. Warrants of
either by an order of county commissioners or by the verdict of a jury, ri',nlOTatiousfor
for an injury sustained in his projierty by the doings of any turnpike or damagres, .tc.
other corporation (except railroads) authorized to receive toll, and the i&ir,' 209,^5 3.'
damages remain unjiaid for thirty days after the order or verdict, such
person may have a warrant of distress against the corporation for the
damages assessed, together with interest thereon and his reasonable
costs.
Sect. 25. The franchise of a turnpike or other corporation author- Kraneiiiae, &c.,
ized to receive toll, and all the rights and privileges thereot; shall be o,°^Jue*sM'^pro-
Uablc to attachment on mesne process ; and wlien such attachment or cess.
other service of mesne process is made on a corporation, the officer s'cubU.'jos"'
serving the same shall leave an attested co])y of the process and his
return thereon with the clerk, treasurer, or some one of the directors, of
the corjioration, fourteen days at least before the day of the sitting of
the couit to which the same is returnable.
Sect. 26. When a judgment is recovered against a turnjiike or may be sold
other eoiporation authorized to receive toll, its franchise, with all the "jexeoution,
rights and privileges thereof, so far as relates to the receiving of toll, «■ S- «, § la-
and also all other coi-porate jirojierty, real and jjersonal, may be taken
on execution or warrant of distress and sold by pul)lic auction.
Sect. 27. The officer having such execution or warrant of distress Mode of sale,
shall, thirty days at least before the day of sale of any franchise or other k?'s. «. § 13.
corporate personal pro])erty, give notice of the time and ])lace of sale,
by posting up a notification thereof in any city or town in which the
clerk, treasurer, or any one of the directors, dwells, and also by causing
an advertisement of the s.ale, expressing the name of the creditor, the
amount of the execution, and the time and place of sale, to be inserted
three weeks successively in some newspaper jmblished in any county in
which either of said officers of the corjioration dwells, if any such there
is ; the last of which publications shall be at least four days before the
day of sale.
Sect. 28. The officer who levies an execution or warrant of distress .sa'<? m?y be ad-
may adjouni the sale for a time not exceeding seven days, and so from r!'™^', §14.
time to time until the sale is completed.
388
POWERS AND DUTIES OF CORPORATIONS. [ChAP. 68.
Who shall be
deemed hi^j'hest
biiMor.
K. .s. a, § :S.
Officer's return
to transfer the
right of toll, &c.
K. S. 44, § Hi.
Purchaser to
have same rem-
edies for dam-
ages as corpora-
tiou.
K. .S. +4, § 17.
1852, 3 IJ.
Liabilities to
contiuue.
U. S. -44, § 18.
Corporation
may redeem
franchise.
R. S. 44, § 19.
I'roceedings,
wliere hafr
U. S. 44, §21.
Corjinrati'^ns
may 111' dissolv-
eil iipou j)i'ti-
tion, A'c.
1S5-.', 5.5, §§1,3.
7 Gray, lUi,4O0.
to continue
three years af-
ter charter ex
pires, to close
concerns.
It. S. 44, §7.
hi Mass. 24.5.
1 Greenl, 7'.l.
See Ch. 57, §100.
When corpora-
tions e.xpire,
&c., receivers to
be appointed.
K. S. 44, § 8.
1852, 65, § 2.
7 Met. 595.
Sect. 29. In the sale of such fi-anchise, the person who satisfies the
execution or Avan-ant of distress with all legal fees and expenses thereon,
or who agrees to take such franchise for the shortest period of time, and
to receive during that time all such toll as the corporation would by law
be entitled to demand, shall be considered as the higlicst bidder.
Sei't. 30. The officer's return on the execution or warrant of distress
shall tr.-msfer to the purciiaser all the ])rivileges and immunities which
by law belonged to the corporation so far us relates to the right of
dem.inding toll ; and the officer shall immediately after the sale deliver
to the purchaser possession of all the toll-houses and gates belonging
to the corjioration, in whatever county the same are situated ; and the
purchaser may thereti])on demand and receive to his own use all the
toll which accrues within the time limited by the term of his purchase,
in the same manner and under the same regulations as the corporation
was before authorized to demand and receive the same.
Sect. 31. A person who lias jmrchased the franchise of any turnpike
or other corporation under a sale upon execution or w.arrant of distress,
and the assignee of such person, may recover in an action of tort any
pen.alties imposed by law for an injury to the franchise or for other
cause, and which such corporation would have been entitled to recover
during the time limited in the ])ureliase of the franchise ; and during
that time the corporation shall not be entitled to prosecute for such
penalties.
Sect. 32. The cor])oration whose fi'anchise has been so sold shall in all
other respects retain its powers, be bound to the discharge of its duties,
and liable to the same penalties and forfeitures, as before the sale.
Sect. 33. The corporation may at any time within three months
from tlie time of sale redeem the franchise by paying or tendering to
the purchaser the sum that he paid with twelve per cent, interest thereon,
but without any allowance for the toll whicli he has received; and u])on
such ]);iyment or tender the franchise and all the rights and privileges
thereof shall revert and belong to the corporation as if no such sale had
been made.
Sect. 34. All proceedings respecting attachments and the levy of
executions or warrants of distress may be had in any county in which
the creditor, president, treasurer, clerk, or a director, of the corporation
resides.
Sect. 35. When a majority in number or interest of the memlicrs of
a corporation desire to close their concerns, they may ai)ply by petition
to the su])reme judicial court, setting forth in sub.stance the grounds of
their ap])lication, and the court, after due notice to all parties interested,
may proceed to hear the matter, and for reasonable cause decree a dis-
solution of the corporation. Corjiorations so dissolved shall be deemed
and held extinct in all respects as if their charters had expired by their
own limitation.
Sect. 36. Corporations whose charters expire by their own limita-
tion or are annulled by forfeiture or otherwise, shall nevertheless be
continued bodies corporate for the term of three years after the time
when they would have been so dissolved, for the purpose of prosecuting
and defending suits by or against them, and of enabling them gradually
to settle and close their concerns, to dispose of and convey tlieir prop-
erty, and to divide their capital stock ; but not for the purpose of con-
tinuing the business for which they were established.
Sect. 37. When the charter of a corporation exjiires or is annulled,
or the corporation is dissolved as provided in section thirty-five, the
supreme judicial court on application of a creditor, stockholder, or mem-
ber, at any time within said three years, m.ay appoint one or more per-
sons to be receivers or trustees to take charge of its estate and eftects,
and collect the debts and proiJerty due and belonging to it; with jiower
Chap. 68.] powers and duties op corporations. 389
to jirosceute and defeml suits in the name of the coiTioration or other-
wise, to appoint assents under them, and do all other acts, wliieh might
be done by such eoijioration if in being, that are necessary for the linal
settlement of the unfinished business of the corporation. The powers
of such receivers may be continued as long as the court deems neces-
sary for said purposes.
Sect. .38. The court shall have jurisdiction in c([uity of the applica- Equity juriBdic-
tion and of all questions arising in the proceedings thereon ; and may K'"il;"^^y9 ^'
make such ortlers, injunctions, and decrees, therein, as justice and equity isiw, S6,'§ 2.'
require. " ^'^- ^"■
Sect. 39. The receivers shall pay all debts due from the corporation. Receivers to
if the funds in their hands are sufficient therefor, and if not, they shall S?Jtribu'te "S?.
distribute the same ratably among the creditors who prove their debts plus,
in tlie manner directed by any order or decree of the court for that J'k/s^,'!.,'"'
purpose. If there is a b.alance remaining after the payment of the debts, 1 Gmy, M7.
the receivers shall distribute and pay it to and among those who are
justly entitled thereto as having been stockholders or members of the
corporation, or their legal representatives.
Sect. 40. Corporations now existing shall continue to exercise and Corporatione
enjoy their powers and privileges according to their respective cliarters m°ayact uu^r
and to the laws in force, and shall continue subject to all the liabilities charters, ex-
to which they are now subject; excejit so far as said powers, privileges, k.^'s'. 38, § 30.
and liabilities, are modified or controlled by the provisions of these
statutes.
Sect. 41. Every act of incorpoi-ation passed after the eleventh day Certain cimr-
of March in the year one thousand eight hundred and thirty-one, shall ject to aitcr'^
be sidjjcct to amendment, alteration, or repeal, at the pleasure of the •'""""'^'pj'''-
legislature: but the corijoration, notwithstanding such repeal, shall be K!s.'H'§2:i!
subject to the provisions of sections thirty-six and thirty-seven of this 4o"^v'|J4'
cha])ter; and such amendment, alteration, or repeal, shall not take away
or impair any other remedy which may exist by law consistently ;\'ith
those sections against the corporation, its members or officers, lor any
liability previously incurred.
TITLE XY.
OF THE INTERNAL POLICE OF THE COMMON\VEALTH.
Chapter 69. — Of the Settlement of Paupers.
Chapter 70. — Of the Support of Paupers by Cities and Towns.
Chapter 71. — Of Alien Passengers and State Paupers.
Chapter 72. — Of the Maintenance of Bastard Children.
Chapter 73. — Of the State Lmiatic Hospitals.
ClLiPTER 74. — Of County Receptacles for Insane Persons.
Cn,\PTER 75. — Of the State Industrial School for Girls.
Chapter 76. — Of the State Reform School for Boys.
Chapter 77. — Of the Law of the Road.
Chapter 78. — Of Timber Artoat or Cast on Shore.
33*
590
SETTLEMENT OF PAUPERS.
[Chap. 69.
CH.4PTER 79. — Of Lost Goods and Stray Beasts.
Chapter 80. — Of Unclaimed Property Transported by Common Carriers.
Chapter 81. — Of Wrecks and Shipwrecked Goods.
Chapter 82. — Of the Preservation of Certain Birds and Animals.
Chapter 83. — Of Fisheries, Kelp and Seaweed.
Chapter 84. — Of the Observance of the Lord's Day.
Chapter 85. — Of Gaming.
Chapter 86. — Of tlie Manufacture, Sale, &c., of Intoxicating Liquors.
Chapter 87. — Of the Suppression of Common Nuisances.
Chapter 88. — Of Licenses, and Municipal Regulations of Police.
CHAPTEE 69,
OF THE SETTLEMENT OF PAUPERS.
Section
1. Settlements, how acquired : 1. By married
womeu. 2. By lej^itiraate cliildreu. 3. By
illegitimate children. 4. By living on free-
hold estate, Ac. 5. By being assessed five
successive years, &c. 6. By serving one
year in certain town offices. 7. By settled
and ordained ministers. 8. By persons ad-
mitted inhabitants by vote. 9. By incorpo-
Section
ration of an unincorporated place. 10.
Where to be upon division or incorporation
of town. 11. Acquired by serving appren-
ticeship four years, &c. 12. By residence
and paying taxes.
2. Provision for persons who have begun to
acquire settlenieuts.
3. Settlements to continue until, &c.
Settlements,
how acquired.
K. S. 45, § 1.
by married
womeu.
R. S. 45, § 1.
9 Mass. 201.
12 Mass. .■)53.
1 Pick. 500.
by legitimate
children.
18 Pick. 204.
8 CusU. 528.
by illegiti-
mate children.
13 Mass. ;i81.
8 Cush. 75.
by living on
fP'1'h..l.l I'Ktate.
II :\l:iH». :isl.
2 Pick. 29.
3 Met. 105.
5 Met. 350.
13 Met. 192.
4 Cush. 172.
8 Oush. 525.
1 Gray, 019.
by being as-
sessed.
11 Mass. 327.
15 Mass. KiO, 253.
22 Pick. .385.
24 Pick. Itifi.
3 Met. 428.
4 Met. 178.
5 Met. 350.
4 Cush 557.
1 1 Cush 292.
2 iJray, 482.
■) 'iray, 283.
by serving
o;ie year in
Sectiox 1. Legal settlements may be acquired in any city or town,
so as to oblige such place to relieve and support the jiersons ac(]uii'ing
the same, in case they are jjoor and stand in need of relietj in the man-
ner following, and not otherwise, namely : —
First. A married woman shall follow and have the settlement of her
husband, if he has any within the state ; otherwise her own at the time
of marriage, if she then had any, shall not be lost or suspended by the
marriage.
Second. Legitimate children shall follow .and h.ave the settlement of
their flither, if he has any within the state, until they gain a settlement
of their own ; but if he has none, they shall in like manner follow and
have the settlement of their mother, if she has any.
Third. Illegitimate children shall follow .and have the settlement of
their mother at the time of their birth, if she then has any within the
state ; but neither legitimate nor illegitimate children shall gain a settle-
ment by birth in the ])lace where they may be born, if neither of their
parents then has a settlement therein.
Fourth. Any person of the age of twenty-one years, being a citizen
of this or any other of the United States, and having an estate of in-
heritance or freehold in any ]jlace within the state, and living on the
same three years successively, shall thereby gain a settlement in such
place.
Fifth. Any person of the age of twenty-one years, being a citizen of
this or any other of the United States, and having an estate, the ])rin-
cipal of which shall be set .at two hundred dollars or the income at
twelve dollars in the valuation of estates made by assessors, and being
assessed for the same, to st.ate, county, city, or town ta.xes, for five years
successively in the pl.ace where he dwells and has his home, shall thereby
gain a settlement therein.
Sixth. Any jjerson being chosen and actually serving one whole
year in the office of clerk, treasurer, selectman, overseer of the poor,
C:IAP. 69.] SETTLEMENT OF PAUPERS. 391
assessor, constable, or collector of taxes, in any place, shall thereby gain town offices.
a settlement therein. For this piiqiose a year shall be considered as rpki*! wu."
including the time between the choice of such officers at one annual
meeting and the choice at the next annual meeting, whether more or
less than a calendar year.
Seventh. Every settled ordained minister of the gospel shall be sitticmmf no-
deemed to have acquired a legal settlement in the place wherein he is J',"",.'^'.' ' """'
or may be settled as a minister. ^ vnf.i\. 053.
Eiiihth. Any person admitted an inhabitant by any ])lace at a legal bypcisons
r , , - •' ', ^ ... i- 1 "r iU i admitted inliiib-
meeting, held under a warrant containing an article tor that Jjurpose, itants by vote,
shall thereby acquire a legal settlement therein.
Ninth. Any citizen of this or any other of the United States, dwell- hy imorpora-
ing and having his home m any unincor]iorated place at the time it corporated
is incoiiJorated into a town, shall thereby acquire a legal settlement ^'jj'pj_4^.
therein.
Tenth. U]ion the division of a city or town, every person having a ^ 'l''^"^yl"i^g^
legal settlement therein, but being absent at the time of such division incorponition of
and not having acquired a legal settlement elsewhere, shall have his legal Ji'ji°i 4^^
settlement in tliat i)lace wherein his last dwelling place or home ha]ipens -JCusii. iss.
to fall upon such division ; and when a new city or town is incoqiorated,
composed of a part of one or more incoriiorate<l places, every jx'rson
legally settled hi the places of which such new city or town is so com-
posed, and who actually dwells and has iiis home within the 1)0unds of
such new city or town at the time of its incorporation, shall tliereby
acquire a legal settlement in such new place; provided, that no person
residing in that part of a place which upon such division shall be incor-
porated into a new city or town, having then no legal settlement
therein, shall acquire any by force of such incorjtoration only ; nor shall
such incorporation prevent his acquiring a settlement therein, within
the time and by the means by which he would have gained it there if
no such division had been made.
Eleventh. A minor who serves an apprenticeshii) to a lawful trade by serving
/»! ,' c • 11,11^ lii nppreiiticoKhip
lor the s]iace ot lour years in any phice, and actually sets up such trade four years, &e.
therein within one year after the ex])iration of said temi, being then
twenty-one years old, and continues there to carry on the same tor five
years, shall thereby gain a settlement in such place; but being hired as
a journeyman shall not be considered as setting ujj a trade.
Twelfth. Any person of the age of twenty-one years, being a citizen by residence
of this or any other of the United States, who resides in any place ^^^.'J"*'"'*^
witliin this state for ten years together, and jiays all state, county, city, '■> -Mass. 430.
or town taxes, duly assessed on his poll or estate for any five years •_■ Viek'! m's. '
witliin said time, shall thereby gain a settlement in such place. poh't^ij
Sect. 2. No person who has begun to acquire a settlement by the i-jietiss.'
laws in force at and before the time when tliis cliaijter takes effect, in *''"".'': '''"'557.
„ , .... ,. . •! 1 i- • 1 r Provisions for
any of the ways in which any time is prescribed tor a residence, or tor ppipons wiio
the continuance or succession of any other act, shall be prevented or ''■.'\',('.^!-'S";ii'''
delayed by the provisions of this chajiter; but he shall acquire a settle- iiieiits._
ment by a continuance or succession of the same residence or other act k. s. to, §2.
in the same time and manner as if the former laws had continued in
force.
Se<t. 3. Every legal settlement shall continue till it is lost or de- Settlements to
r* . 1 -i . .^ ^ .,1 . ^1 • i X 1 • ■ continue until,
feated bj' acquiring a new one within this state; and upon acquiring s!c.
such new settlement all former settlements shall be defeated and lost. }1>*,1*',L'"
13 Met. 192.
392
SUPPORT OF TOWN PAUPERS.
[Chap. 70.
CHAPTER 70.
OF THE SUPPORT OF PAUPERS BY CITIES AND TOWNS.
Section
1. Towns to support poor.
2. Powers and duties of overseers of the poor.
3. Same subject.
4. Certain kindred to support, &c.
6. Superior court may assess such kindred.
6. may also assess ibr future expenses.
7. Costs, how taxed.
8. Court may order with whom pauper shall
live.
9. Proceeding's on complaints.
10. Other kindred than those named may be
summoned.
11. Court may make new orders.
12. Overseers to provide for immediate relief
of strauo^ers, &c.
13. Recovery to establish settlement.
14. Liability when pauper removed, .tc.
15. Overseers shall support, and in ease of de-
cease bury, iudi*j^ent strangers. Compensa-
tion therefor.
IC. Towns liable to individuals.
Section
17. Paupers may be removed, &c.
18. Process in cases of removals ; if a removal
is not made or objected to by the town noti-
fied, then, &c.
19. Effect of notifications, &c., sent by mail.
20. Penalty for leaviug paupers where not set-
tled, &e.
21. Overseers of poor may sell estate of de-
ceased paupers, and apply proceeds to
reimburse expenses.
22. Overseers may prosecute, &c.
RETURNS TO BE MADE BY OVERSEERS OF THE
POOR; &C.
23. Overseers &c.^ to return to secretary of
commonwealth statement respecting pau-
pers.
24. Penalty for not making return,
25. Secretary to prepare abstract of returns
yearly for legislature.
Towns to sup-
port poor.
K. S. 4li, § 1.
9 Met. 495.
Powers and du-
ties of overseers
of the poor.
11. S. 4(i, § 2.
1857, 153.
See Ch. Ill, § 4.
Same subject.
K. S. 4ii, § 3.
See Ch. 22.
Certilin kindred
to support, &c.
K. S. 4(i, § 5.
K. S. 78, § 1.
10 Cush. 2:i9.
Superior court
may assess kin-
dred.
I!. S. 4n, §0.
1859, 19(1.
10 Cush. 239.
11 Cush. 24.
may also as-
sess for future
expenses.
K. S. 4(5, § 7.
Section 1. Every city and town shall relieve anfl support all poor
ami iiiiligent persons lawfully settled therein, whenever they stand in
need thereof.
Sect. 2. The overseers of the poor shall have the care and over-
sight of all such poor and indigent persons so long as they remain at
the charge of their respective cities or towns, and shall see that they are
.suitably relieved, su|iported, and em])loyed, either in the workhouse or
almshouse, or in such other manner as the city or town directs, or other-
wise at the discretion of said overseers. They may remove to the alms-
house such children as are suflering destitution from extreme neglect of
dissolute or intemjierate parents or guardians.
Sect. 3. The overseers of the poor shall have the same power and
authority over ])ersons ]>laced under their care, A\liieh directors or mas-
ters of workhouses have over persons committed thereto.
Sect. 4. The kindred of such poor persons, in the line or degi-ee of
father or grandfather, mother or grandmother, children or grandchildren,
by consanguinity, living in this state and of sufticient ability, shall be
bound to sujjport such paupers, in proportion to their resjiective ability.
Sect. 5. Tlie superior court in the county wliere any one of such
kinilred to be charged resides, upon comjilaint of any city, town, or
kindred who shall have been at expense for the relief and su])port of
such pauper, may, on due hearing, assess and apjiortion upon such of the
kindred as they shall find to be of sufKcient ability, and, in ]iro]K)rtion
thereto, such sum as they shall deem reasonable for or towards the sup-
port of the pauper to the time of such asses.sment ; and may enforce
payment thereof by execution in common form : provided, that such
assessment shall not extend to any expense for relief aiforded more than
six months previous to the filing of the conijilaint.
Sect. 6. The court may further assess and apportion u]ion said kin-
dred such weekly sum as they shall deem sufficient for the future sup-
])ort of the pauper, to be paid quarter yearly until the further order of
court ; and u])on application from time to time of the city, town, or
kindred, to whom the same is ordered to be paid, the clerk of said court
sliall issue and may renew an execution for the arrears of any j^reeediug
quarter.
Chap. 70.] support of town paupers. 393
Sect. 7. Wlien the court adjudges two or more of the kindred of a Costs, how
pauper to be of sufficient ability to contribute to his support, they shall k^I.^o, §s.
tax no more costs against any one respondent than is occasioned by his
default or separate defence.
Sect. 8. The court may further order with whom of such kindred, Court may or-
that may desire it, such pauper shall live and be relieved, and such jxiupt" shall"™
time with one, and such time with another, as they shall deem j)roper, I'/o.
having regard to the comfort of the pauper as well as the convenience '' • ^' ' ■
of the kindred.
Sect. 9. The complaint made as provided in this chapter, shall be Troceeciing:s on
filed in the clerk's office, and a summons shall be thereu]ion issued re- k'.'s''^""^^.
quiring the kindred therein named to appear and answer thereto ; which •
summons shall lie directed to any officer qualitied to serve civil process
between the parties, and served Uke an original summons, fourteen days
at least before the sitting of the court to which it is returnable.
Sect. 10. Upon suggestion that there are other kindred of .ability, otiicr kimircd
not summoned in the original process, they may be summoned, and after n,',™.!]'',',^!,. t,e
due notice, wiiether they appear or are defaulted, the court maj' proceed suininoii.J.
against them in the same manner as if they had been summoned uiion '' ''' *'*' ^ "'
the original complaint.
Sect. 11. The court may take further order from time to time in Court m.ay make
the premises, upon application of any party interested, and may alter ""s.'io.Yii.
such assessment and apportionment according to circumstances ; and
upon all such complaints they may award costs to either party as justice
requires.
Sect. 12. Said overseers, in their respective places, shall provide for Ovorsocrs to
the immediate comfort and relief of all j)ersons residing or tound therein, [J[",Ijate rei™ '
having lawful settlements in other places, when they fall into distress of strimgirs,
and stand in need of immediate reliefjand until they are removed to the ij^'s. ic, §13.
places of their lawful settlements; the expenses whereof, incuired witliin f/'wK' •'!!;
three months next before notice given to the place to be charged, as
also of their removal, or burial in case of their decease, may l)e recov-
ered by the place incurring the same against the place liable therefor, in
an action at law, to be instituted within two years afler the cause of
action arises, but not otherwise.
Sect. 13. A recovery iu such action shall bar the place against which iswovory to cs-
it shall be had from disjiuting the settlement of such jiaujier with the nj!!',t'^'' ^"■'"''^"
place so recovering, in any future action brought for his sujiport. it- s. 4C, § u.
Sect. 14. When a person is supported in a place other than that in liability when
which he has his settlement, the jilace liable for liis su]>]iort shall not be Si'ove'd,&c.
required to pay therefor more than at the rate of one dollar a week : k._S4(;,§i5.
provided, that the place so liable shall cause the pauper to be removed ; pil-k! \m.
within thirty days fiom the time of receivinir lesral notice that such sup- ';' i',"^]'-,^,^!*-
port has been lurnished. 8Ciish..n.
♦Sect. 15. The overseers of the poor of each place sh.all also relieve, Overseers simii
support, .and employ, all jioor persons residing or found therein, having |!a|llFoi'd«vL'e
no lawful settlements within this state, until their removal to a state bury, ludigeut
almshouse, and in case of their decease shall decently bury them; the compensation
expense whereof may be recovered of their kindred, if they have any 5l"'!;'''?r-., , .
chargeable by law for their sujiport, in the manner herein before pro- .%'. ' ' ''
vided ; and if in case of their burial the ex]iense thereof is not paid by i***-. 27s.
such kindred, there shall be paid from the treasury of the common-
wealth, five dollars for the funeral expenses of each pauper over twelve
years of age, and two dollars and fifty cents for the funeral expenses of
each pau|)er under that age. -i.„,^n, ii..,bieto
Sect. 1(5. Every city and town shall be held to pay any expense y"'',' ''';'"''*■
necessarily incurred for the relief of a pauper therein by any pei-son ; jiet. aai.
who is not liable by law for his support, after notice and request made JJ i*.',',^'ii'''If^
to the overseers thereof, and until provision is made by them. 0 Cusii! 309!
50
394
SUPPORT OP TO\TX PAUPERS — RETURNS. [ChAP. 70.
Paupers maj' h:
removed, \o.
R. S. 4ii, S 11).
23 Pic-k. 15B.
4 Met. «3.
13 Met. 199.
Process in case
of removals.
If a removal is
not m<ade or ob-
jected to by tlie
town notified,
then, <S:c.
R. .S. -ii;, § 20.
a) Pick. 151).
Effect of notifi-
cations, itc,
sent bv mail.
R. S. 4ii, j.;!.
Penalty for
leaving paupers
where not set-
tled, &c.
E. S. *), § 24.
1849, 06.
2 Grcenl. 5.
W Mass. .■!93.
1 Pick. 4ri3.
21 Hck. 83.
Overseers of
poor may sell
estate of'de-
ceased paupers,
and apply pro-
ceeds to reim-
burse expenses.
1837, 54.
1858, 20.
Overseers may
prosecute, (Vc.
B. S. 40, § 21.
Overseers, &c,,
to return to sec-
retary of com-
monwealth
Btatemcnt re-
specting pau-
pers.
1837, 194, § 1.
1841, 110, §1.
1844, 14(1.
1848, 247, § I.
1857, 35, 40.
1858, 46, § 1.
Sect. 17. The overseers of any place may send a written notification,
stating the facts rehiting to any pei'son actually become chargeable
thereto, to one or more of the overseers of the place where his settle-
ment is supposed to be, and requesting them to remove him, which they
may do by a written order directed to any person therein designated,
who may execute the same.
Sect. 18. If such removal is not effected by the last mentioned over-
seers witliin two months after receiving the notice, they shall within
said two months send to one or more of the overseers requesting such
removal, a written answer, .signed by one or more of them, stating therein
their objections to the removal; and if they fail so to do, the overseers
who requested the removal may cause the pauper to be removed to the
place of his supposed settlement, by a written order directed to any per-
son therein designated, who may execute the same ; and the overseers
of the place to which the pauper is so sent shall receive and provide for
him ; and such place shall be liable for the expenses of his support and
removal, to be recovered in an action by the place incurring the same,
and shall be ban-ed from contesting the question of settlement with the
plaintiffs in such action.
Sect. 19. The notification and answer mentioned in the two pre-
ceding sections in.ay be sent by mail ; and such notification or answer,
directed to the overseers of the poor of the place intended to be notified
or answered, postage prepaid, shall be deemed a sufficient notice or an-
swer, and shall be considered as delivered to the overseers to whom it is
directed, at the time when it is received in the post office of the place
to which it is directed and in which the overseers reside.
Sect. 20. Whoever brings into and leaves any poor and indigent
person in any place in this state, wherein such pauper is not lawfully
settled, knowing him to be poor and indigent, and with intent to charge
such place with his relief or su|)])ort, shall forfeit a sum not exceeding
one hunilred dollars for each offence, to be recovered in an action of tort
to the use of such place.
Sect. 21. Upon the death of a pauper who at the time of his decease
is actually chargeable to any jjlace within this state, the overseers of the
poor of such place may take possession of all his real and personal prop-
erty ; and if administration is not taken upon his estate within thuty
days after his decease, the overseers may in their own names sell and
convey so much thereof as may be necess.ary to repay the expenses in-
curred for the pauper. If any ]3art of such projjerty is withheld from
said overseers, they may in their own names sue for and recover jjosses-
sion of the real estate, and shall liave the same remedy for the recovery
of the ])ersonal estate or its value, that an administrator might have in
like case.
Sect. 22. In all actions and prosecutions founded on the preceding
provisions of this cha])ter, the overseers of the poor of anj' place or any
person Ijy writing under their hands appointed shall appear, prosecute,
or defend, the same to final judgment and execution, in behalf of such
place.
RETURNS TO BE MADE BY OVERSEERS OF THE POOR, &C.
Sect. 23. The board of directors for ])ublic institutions of the city
of Boston, and the overseers of the poor of all cities and towns, shall, on
or before the fifteenth day of October of each year, make out and return
to the secretary of the commonwealth a st.atement of the ]iaupers in such
city or town as they were during the year ending on the last day of the
month jireceding; which return shall contain true and correct answers
to the following inquiries : —
^Vhat number of persons have been relieved or supported by your town during the
year ending September 30 ? Of those, how many have a legal settlement in your
Chap. 71.] alien PASgESGERS axd state paupers. 395
town ? How many are foreign bom ? IIow many of the foreign bom are from
England and Ireland r How many state paupers have you sent to the state alms-
houses ? How many of the poor assisted in your town or sent to state almshouses
were foreigners "r How many of your insane do you support in state lunatic hospi-
tals ? How many of your idiotic poor are in the state institution for educating idiots ?
Have you an almshouse ? What number of acres of land is attached to your alms-
house r \\'hat is the estimated present value of your almshouse establishment ? Real
estate ? Personal ? What number of persons have been supported in your alms-
house during the whole or any part of the year ? What is the average number
supported in the almshouse ? What is the average weekly cost of supporting each
pauper in the almshouse ? MTiat number of persons have been inmates of your ahns-
house who are unable to perform any kind or amount of labor : What is the esti-
mated value of all the labor performed by the poor in your almshouse r How many
persons, including their families, have you supported out of the almshouse during the
whole or a portion of the year ? What is the average weekly cost of supporting each
pauper out of the almshouse ? How many have you aided out of the almshouse ?
How many have you supported or relieved who were insane ? How many who were
idiots ■ XVTiat number of persons, relieved or supported during the year, in your
town, have become dependent by reason of insanity or idiocy ? What number of your
poor, supported at the public charge, have been made de))cndcnt by intemperance in
themselves ? ^^^lat number by intemperance in those who ought to have been their
supporters ? What is the total net amount of expense of supporting or relieving the
poor in your town during the year, including interest on your almshouse e-tahli-h-
ment ? How many are supported in your almshouse at the present time ■ How many
are supported out of the almshouse at the present time ? How many are assisted out
of the almshouse at the present time ?
They sh.all, at the same time, make con-ect returns of all children in such
city or town under fourteen years of age who are sup])orted at the pub-
lic charge, speeitjing therein the name, age, and sex of each. And the
secrotarj- of the commonwealth shall, in the month of September annu-
ally, furnish the board of directors for ]Hiblic institutions of the city of
Boston, and the overseers of the poor of every other city and town, with
blank forms of returns, which shall contain in substance the foregoing
interrogatories.
Sect. 24. If the board of directors for public institutions of the city Ponaity for not
of Boston, or the overseers of the poor of any other city or town, refuse "^j^jllj^s"™'
or neglect to make any of the returns as aforesaid, they shall forfeit a isor.so.
sum not less than fifty nor more than one hundred dollars for each of-
fence ; and the secretary of the commonwealth sIkiII forthwith notify
the district-attorney of the district in whicli such directors or overseei-s
reside, of such refusal or neglect, and he shall immediately prosecute for
the same.
Sect. 25. The secretary shall, as soon after the fifteenth day of Oc- Secretary to
toberofeaeh year as practicable, make out an abstract of the returns {JfrSurns.**'™''
made to him, together with such explanatoiy remarks as he deems proper, wir, iw, §3.
and cause the same to be printed for the use of the legislature. ists! 247^52!
185?, 40.
CHAPTER 71.
OF ALIEN PASSENGERS AND STATE PAUPERS.
BOARD OF COM>nSSION'ERS. SeCTIOW
Section '■ 5. Commissioners to presmbe form of certifi-
1. Board of alien commissioners, how consti- cate to be used in sending jiaupers to state
tnted. almshouscB, &c.
2. Commissioner appointed by governor. 6. powers of, in relation to paupers at hos-
Term of ofRee. I pitals.
3. Commissioners may appoint persons to < 7. may transfer inmates of state alms-
visit almsiiouses, to give directions in rela- i houses, &c.
tiou to pauper returns, &c. 8. may commute bonds.
4. to appoint n'T'-'its to procure information i 9. to make annual report.,
respecting foreigners arriN-iug in this state. | 10. Compensation of commissioners, &.C.
396
ALIEN COMMISSIONEES.
[Chap. 71.
ALIEN PASSENGERS.
SECTION
11. Superintonde-nts of alien passcug-ers, how
appointed, qualitiej, and pjiid.
12, 13, their duties.
14. to board vessels arriving with alien pas-
sengers, &c.
15. Certain passengers not to be landed until
bond is given, .tc. Superintendent may
receive money in lien of boud, &c. Sick
and destitute passengers may in certaui
cases be landed without b(tnd, &g.
16. Head money paid, to be refunded in certtiin
cases.
17. Bond may be taken. How cancelled.
18. Party to wliom lieail money is repaid, &c.,
liable if passenger returns.
19. Preceding pro\'isions not to extend to con-
suls, &c., nor persons in distress.
20. Penalty for landing aliens at place other
than port of destination.
21. or without complying with provisions of
this cliapter.
22. for lauding convicts, &c., from other
states.
2.3. Superintendents to make reports, render
accounts, &c.
24. Overseers of poor when to perform duties
of superintendents.
25. Persons bringing foreigners into state, lia-
ble for support, &c., in certain cases.
HOSPITAL AT RAINSFORD ISLAND.
26. Inspectors, &c., at Rainsford Island. Su-
perintendent to give bond.
27. Inspectors to establish rules and visit hos-
pital.
28. to make report.
2U. Foreign paujiers arriving sick, to remain at
hospital.
30. Commissioners may allow towns to send
sick paupers to hospital.
SI. Bills of expenditures at island.
STATE ALSrSHOUSES AND STATE PAUPERS.
32. Inspectors of state almshouses, appoints
ment, duty and salary of.
Section
33. Inspectors to have certain powers of over-
seers of poor, &c.
3-4. Superintendent, salary, bond, &c.
35. to receive paupers, &o.
3(i. Cities and towns may send state paupers to
state almshouses, &c.
37. not to send lunatics who are dangerous.
Inmates becoming furiously mad may be
sent to state lunatic hospitals.
38. Idiots having no known settlement may be
sent to state almshouse.
.33. Fees allowed to officers, &c., in such cases.
40. Discliarge 1 convict paupers to be removed
to almshouses in certiiin cases.
41. When settlement is discovered in this state,
sucli paupers to be removed thereto, &o.
42. Convicts too sick to be removed, how to be
provided ibr.
43. Husband and wife not to be separated.
44. Expense of supportmg state pauper in such
case, how paid, &c.
45. When either almshouse is full, inmates to
he distributed, &c.
4(j. WIr'U all are full, towns, &c., to take
charge of state pauix.Ts, at expense of
state. Notice thereof.
47. Powers of inspectors as to inmates and
property.
48. Superintendents may contract for employ-
ment ol inmates, &c.
49. Towns liable for support of their paupers,
who become inmates of state almshouses.
50. Liability of kindred for supjiort of such
paupers.
51. Punishment for leaving almshouses with-
out consent, and found begging.
52. Foreign paupers may be couveyed to place
where they belong".
53. State lunatic paupers may be conveyed to
place where they belong.
54. Inspectors to autlit superintendent's ac-
counts, and make reports.
55. Accounts for maiuteuaucc of almshouses,
how and when paid.
56. No allowance to county, Ac, for state pau-
pers, except, &c.
57. Accounts of counties, &c., how audited, &c.
Board of alien
commissioners,
how consti-
tuted.
1851,342, §1.
1856, 294, § 1.
Commissioner
appointed by
governor.
Term of office.
1856, 2'.H, §2.
Commissioners
may appoint
persons to visit
almshouses.
to give direc-
tions in relation
to pauper re-
turns, Sic.
1851, 342, § 2.
BOARD OF ALIEN COMMISSIONERS.
Section 1. There shall be a board of commissioners in relation to
alien passengers and state paupers constituted as follows : One person
ajjpointed by the ijovernor and council, the auditor of accounts of the
commonwealth, and the suj)enntendent of alien passengers for the city
of Boston, which board shall superintend the execution of all laws in
relation to the introduction of aliens into the commonwealth and the
support of state paupers therein.
Sect. 2. The present appointed member of the board shall continue
to hold his office acconling to the tenor of his commission, and at the
expiration of his term of office, and Avhenever a vacancy occurs, the
governor, with the advice and consent of the council, shall appoint
some suitable person to hold the office for three years.
Sect. 3. The commissioners may appoint one or more persons, who
shall at least once in every year visit all the almshouses or ])laces
where state ])aupers are supported, and ascertain from actual examina-
tion and inquiry whether the laws in respect to such ))aupers are
pro])erly regarded, particularly in relation to such as are able to labor;
and if infractions of the laws are discovered, make imnuMliate report
thereof to the commissioners. The commissioners shall mve such
Chap. 71.] alien commissioners. 397
directions as will insure correctness in the returns required in relation
to paupers, and may use such means as arc necessary to collect all
desired information in relation to their su]i]iort.
Sect. 4. They shall a]>]ioint one or more ]>ersons, to be approved rommisBiimcrs
by the governor and council, who shall ascertain the names of all „" ",',i's"t"pro-
forcigners brought into this state by any conveyance by land, or by ™n- iniormn-
any lines of communication established for the regular transjjortation fordpimi^n""
of |iassengers by water, not extending beyond or stojiping at places rivin^Ma this
witliout the United States, and also ])rocure such fui-ther information iks»342, §§3, 4.
in relation to such foreignere as i« practicalde in order to identify them ^'^'■' ^'^•
if tliey should hereafter become a public charge. All officers and
agents of raih-oad corjiorations, and pr(j])rietors or agents of other
means of conveyance, shall furnish the agents of the coinmonwealth,
when so required, with the information above named so far as in tlieir
power, by filling up blanks to be furnished them for that purpose. If
any of said persons refuse or neglect to furnish sucli information when
requested, they shall be punishable by fine not less than twenty dollars
for each person in relation to whom the information is withheld.
Sect. 5. They shall prescribe to the su])erintendent of each state to proscribp
almshouse and of the hosjutal at Kainsford Island, the forms for statis- r°"" to 'ill' used
tical returns to be made by them in their annual re])ort, in relation to i" >'niiiu<ir pau-
the sex, age, and nativities of the inmates, an<l the ])laces from whence ainrBhouscs"
thev were sent. They shall also prescribe the form of certificates *'■• . ,.
■ T C i- -t- i- »1 i- . 1 isso, 1-1, § 1.
requireil of mayors of cities, or overseers of the ])oor of towns, wlien a
j)auper is sent therefi'om to cither of the state almshouses ; which cer-
tificate shall contain such incpiiries in relation to tlie age, parentage,
birthplace, and foiTner residence of, and other facts relating to, the pau-
per, as they may deem necessary, to which mayors and overseers of the
poor shall render true answers as far as they are able, before the pau])er
is received into the almshouse. The several cities and towns shall be
fiuTiished with blank forms of said certificate by the commissioners.
Sect. 6. They shall have the same powers to bind as a]iprentices powers of, in
minors who are inmates of the hospital at Rainsford Island, and in prrs 'rt'bospr-"
relation to state pauiicrs who are inmates of the same, or of either of '''i«-
the lunatic hospitals in this state, and their property, as are by law sc,> Hi. 7(i. '
vested in towns and overseers of the poor in reference to j)aupers suji- Ch. iii,§4.
ported or relieved by towns.
Sect. 7. The inmates of a state almshouse, state lunatic hospital, or may transfer
the hospital at Rainsford Island, may be transferred from one institu- i'Jni'sUousL'"'*''
tion to another, or sent to any state or jdace where they belong, by the &<:_■
board or their order, when the public interest or the necessities of the "^^^'^ '
inmates require such transfer; but no jiatient shall be transferred or
discharge<l from a state lunatic hospital without the concurrence of the
trustees thereof.
Sect. 8. They may commute the bonds taken by superintendents maycommute
of alien ])assengers, on such terms as in their judgment will best pro- JSa^seo, § i.
mote the interest of the state.
Sect. 9. They shall annually on or before the fif\eenth day of to maHc an-
October, make a report of their doings to the governor and council, to °™' ^^^"5*:
be laid before the legislature, and shall therein make such suggestions isu7Uo,§i."
in relation to the pre.seut or other plans for the support of jiaupers as
may occur to them.
Sect. 10. They shall receive such compensation for their services compensation
as the governor and council may deem reasonable; and the agents °m*342, §7.
appointed by them, such compensation as may be fixed by the com- 18-m!4S6.
missioners, not exceeding four dollars for each day they are employed,
together with their necessary expenses for board and travel, to be paid
quarter-yearly.
34
398
ALIEN PASSENGERS.
[Chap. 71,
Superinten-
dents of alien
passeny:ei-s,
how appointed,
qualitied, and
paid.
IS48, 313, §§ 1, 2.
1858, 132.
duties of.
18*8, 313, § 1.
Same subject.
1848, 313, § 3.
1851, 342, §4.
to board ves-
sels arriving
with alien pas-
sengers, &c.
1848, 313, § 4.
1850, 105, § 1.
1851, 342, I 4.
1852, 279.
Certain passen-
o^ers not to be
landed until
bond is given,
&e.
1852, 279, § 1.
1852, 312, § 1.
11 Peters, 102.
7 Howard, 283.
i Met. 282.
Superintendent
may receive
money in lieu
of bond, &c.
ALIEN PASSENGEKS.
Sect. 11. The governor, with the advice and consent of the coun-
cil, shall, when necessary, apjioint and commission in each maritime
place some suitable person to be superintendent of alien passengers
therefor, who, before entering ujion the duties of his office, shall be
sworn, and give bond, with sufficient sureties for the performance
thereof; to the treasurer of the commonwealth, in such sum as sliali be
specified in his commission, and he shall hold his office until another
is appointed, commissioned, and qualitied in his stead. Tlie superin-
tendent for the city of Boston shall receive a s.alary of two thousand
dollars a year for his services as such superintendent and as a member
of the board of alien commissioners ; and tlie superintendent for .any
other place, such salary as the governor and council may detei-mine,
not exceeding the amount of alien passenger money received by him ;
and the salary of each shall be expressed in his commission.
Sect. 1'2. Ench superintendent shall from time to time design.ite
pl.ices for the examination of vessels as hereinafter mentioned, and
shall require the pilots of the ports of his city or to\\ni to anchor such
vessels at the i)laees so designated, there to remain until such examina-
tion is had. Any pilot who refuses or neglects to perform said duty, or
who through negligence or design permits any alien ]iassenger to land
before such examination, shall forfeit not less than fifty nor more than
two thousand dollars.
Sect. 13. The superintendents sh.ill have the care and oversight
of all matters arising under the four following sections in the cities or
to\vns for which they are apjiointed ; and when a Iireaeh of any ]iro-
vision thereof comes to their knowledge, they shall, with the advice of
the district-att(H-ney for their district, institute prosecutions for the for-
feitures incurred.
Sect. 14. When a vessel which does not belong to a line of com-
munication established for the regular transportation of passengers by
water and not extending beyond or stopping at places without the
limits of the United States, arrives at any port or harbor within this
state, ^^ith alien passengers on board who have never before been
within the state, or who, if so, were a public charge as lunatics or pau-
pers, the superintendent of the place where it is intended to land such
jiassengers shall go on board such vessels and ex.amine into the con-
dition of such ]iassengers ; and the master or commanding officer of the
vessel shall, within twenty-four hours after .such arrival, make a report
in writing under oath to said superintendent, of the name, age, sex,
occupation, place of birth, last ]>lace of residence, and condition of
every such passenger ; and none of them shall be landed or permitted
to land, except as is hereinafter provided, until such re]iort is made.
Sect. 1.5. No insane, idiotic, deaf and dumb, blind, defonned, or
maimed person, among said passengers, or alien who has before been
a public cliarge ■ndthin this state, shall be pennitted to land until the
master, owner, consignee, or agent of such vessel makes and delivers to
said superintendent a bond to the commonwealth for each of said per-
sons, with satisfactory sureties in the sum of one thousand dollars, con-
ditioned that such passengers shall not within ten years from the date
thereof become a city, town, or state charge. And no other passenger
shall be permitted to land until a bond is given as aforesaid, in the
sum of three hundred dollars, conditioned that he shall not become a
charge as aforesaid within five years from the date thereof; but in lieu
of the bond last mentioned, the superintendent may receive from said
master, owner, consignee, or agent, such sum, not less than two dollars,
as in his judgment is sufficient to cover the risk incurred by the com-
monwealtli in permitting such passenger to be landed ; and the names
Chap. 71.] alien passengers. 399
of all such passengers shall be certified by the superintendent on the
back of the reY>ort: provided, that if any passenger arriving as afore- sick and dosti-
said is so sick or destitute as to require relief; and the master refuses „"" Sri^mlicii"
to rcjM)!! him, or if said master, owner, consignee, or agent refuses to without bond,
give such bond, the superintendent may jiermit such passenger to be
landed ; and if the commonwealth or any place is put to expense for
his support, sickness, or burial, within ten years of the time he is so
landed, the commonwealth or such place may in an action of contract
recover the amount of all such expenses of said master, owner, con-
signee, or agent, who shall also severally forfeit the sum of five hundred
dollars for every passenger so landed.
Sect. 16. When a master, owner, consignee, or agent, has paid to Hrad money
the superintendent the sum of two dollars for the landing of an alien l',;"dcd'in'cOT-
passenger, the superintendent shall refund said sum upon receiving *•;'" '■j,^^; ,
satisfactory evidence within thirty days that the passenger left the "' '
state within forty-eight hours after such jiayment ; and he shall state
the amounts so refunded in his quarterly accounts.
Sect. 17. The superintendent of alien jiassengers, instead of re- Bond mw be
ceiving the pajnnent of two dollars as aforesaiil, may in any ease take 'aSiied.'"*''
a bond, with sufficient sureties, for such jiayment; and on proof that i653, seo, §2.
the passenger left the state within forty-eight hours after giving such
bond, the superintendent shall cancel it.
Sect. 18. If an alien passenger on whose account the commutation I'arty to wiiom
money has been refunded or bond cancelled as provided in the two pre- ,'q,'',id" 1°*!! lia-
cedinsr sections, within five years thereafter returns into this state and bi'' ii passenger
1 ® 1 .. 1 1 1 • 1 , , ^' n turns.
becomes a pubhc charge, the party who paid the commut.ation money or isoj, 219.
gave the bond, shall become liable .to the commonwealth for the ex-
penses of such passenger's support, to the same extent as if a bond in
the penal sum of three hundred dollars had been taken upon the first
landing of such alien.
Sect. 19. The preceding provisions shall not extend to seamen sent Consuls, *c.,
from foreign ports by consuls or vice consuls of the United States, nor JS"s'}rcs"not *"
to ambassadors, consuls, or public ministers, or other persons represent- .jffected iiereby.
ing foreign states, nor to persons coming on shore from vessels in dis- iJ;is,'3i3, §"10,
tress, nor to any alien passenger taken from a wreck where life is in i!»o, 105, 51.
danger.
Sect. 20. If the master or commanding officer of a vessel lands an ivnaity for
alien passenger at any place within this state other than that to wliich !!xc'.',''t^',t''j™t
such vessel is destined, with intent to avoid the requirements of this chap- "^'i,'^':*'." 'J'*'"-
ter, he shall forfeit one hundred dollars for every passenger so landed. ' ' ' ' ^
Sect. 21. If the master or commanding officer of a vessel lands, or orwitbout
permits to be landed, in this state, any alien passenger, without coui- J'^UVismnf of'
plying with the provisions of this cha])ter, he and the owner or con- jj^j^ '''/Jji'l'jy
signee of the vessel shall severally forfeit five hundred dollars for every
passenger so landed.
Sect. 22. If the master or other person having charge of a vessel, for landing
therein brings to and lands, or suffers to be landed, within this state, a ff"ni'otbe'r°"
person convicted in any other state or in a foreign country of an infii- g"*^'^ .,,.
mous crime, or a crime for which he has been sentenced to transportation, ■•'-"•
knowing of such conviction, or ha\ ing reason to sus]iect it, or a person
of a notoriously dissolute, infamous, and abandoned life and character,
knowing him to be such, he shall for every such ottence forfeit a sum
not exceeding five hundred dollars.
Sect. 23. Every superintendent of alien passengers shall on the third Superintend-
Wednesdays of January, April, .July, and October, of each year, render report" , "render
to the treasurer of the commonwealth, a detailed account of all the 'jsi™"",'!'^*"'
money received and expended by him and his assistants under the pro- issoliiua!
visions of this chapter, up to the first days of said months ; and after
deducting therefrom the amount of salary due to Inm up to the time to
400
HOSPITAL AT RAINSPOKD ISLAND.
[Chap. 71.
Overseers of
poor, when to
perform diitios
of superiuteud-
eiit.
ItHS, 313, § 8.
Persons brinf^-
ing foreigners
into state, liiible
for support,
&c., in certiiiu
cases.
ISol, 342, § 5.
Inspectors, &c.,
at Kiiinsford
Island. Super-
intendent to
give bond.
l.-a3, 273, §11.
lyji, ai2, § 1.
18ja, 221, § 2.
Inspcotore to
establish rules
and visit hospi-
tal.
1854, 202, §§ 1, 2.
185;, 248.
to make re-
port.
1859, irr, § 2.
ForeigTi pau-
pers arr)\ iu-j^
sick, to remain
at hospital.
1852,275,511.
Commissioners
may allow
towns to send
sick paupers to
hospital.
1853, 352, § 6.
1854, 18'.), § (i.
Bills of expen-
ditures at
island.
1854, 202, § 4.
ISaa, 221, § 2.
which said quarterly accounts extend, .shall pay the balance into the
treasury.
Sect. 24. The overseers of the poor in any place where there is no
sii]>erintendent of ahen passengers, or where .such superintendent is un-
able to [)erforiu his duties by reason of absence or ill health, shall per-
form the duties and e.\ercise the authority of su])erintendents; and shall
in like manner render their accounts to tlie state treasurer, and pay over
the money received, deducting therefrom a reasonable compensation for
tlieir services.
Sect. 25. If a foreigner brought into this state in the manner speci-
fied in section four, falls sick, or trom any cause becomes a jjublic cliarge
within one year tliereafter, the commonwealth or any place incurring
expenses fur his siipjiort, sickness, or burial, ni.-iy in an action of con-
tract recover the amount of such expenses of the corporation or ])arty
by whose means the jierson was brought into the state : provided, that
the party .so li.able shall be notified of his liability in each case as soon as
jiracticable, in order that such party imiy if so disijosed jjiovide means of
SLij)port or removal.
THE I10SPIT.iL AT RAINSFOED ISLAXD.
Sect. 26. The governor, with the advice and consent of the coun-
cil, shall appoint three inspectors of the hospital at Rainsford Island,
subject to removal only for sufficient cause, and such other officers and
attendants, and establish such compensation for said insj)ectors, officers,
and attendants, as they shall deem pro]>er. The superintendent shall
give bond in like manner as su]ierintcndents of state almshouses.
Sect. 27. The in.spectors sliall, subject to the approval of the gov-
ernor, establish rules and regulations for the management and govern-
ment of said liospital, and shall see that such rules and regulations are
enforced ; and one of the ins[)ectors shall visit the hospital once at least
in each month.
Sect. 28. They shall annunlly on or before the fifteenth day of Oc-
tober, make a report to the governor and council, of the state of the in-
stitution, with a list of the salaried officers and their salaries, and, in a
tabular form under the heads specified in section eleven of chapter five,
the value of the stock and supplies.
Sect. 29. All foreign jiaupers arriving by water within the state,
who cannot on account of sickness be removed to one of the state alms-
houses, shall during the continuance of such uiabihty be supported at
said hos])ital.
Sect. 30. The board of alien commissioners may allow any city or
town in the state to send sick state paupers to said lios|iital, and such
paupers, their kindred, and tlie places of their settlement, shall be sub-
ject to the same liability as if they had been sent to a state almshouse, to
be enforced in like manner.
Sect. 31. Bills for exjjcnditures at said island, after ap]iroval by the
inspectors, shall be jiresented to the auditor ; for iin]irovements, at the
close of each quarter ; for current expenses, once in each month.
state almshouses and state paupees.
Inspectors of Sect. 32. The governor, with the advice and consent of the council,
f.!f,!Lt'":lf,' shall appoint for each of the state almshouses, a board of three inspect-
nouscs, .ip- 'i- • 1 • 1- ... , -.,. ,^,
pointmeut, ors residing in the immediate vicinity thereoi, subject to removal only
duty, and salary ^^j. s„flj^.;e„t cause, and one member at least of each board shall be ap-
j'^52, 275, § 0. pointed annually. The iusjiectors sliall, subject to the approv.al of tlie
IS54J 437', § 3'. governor, establish rules and regulations for the ]iro]K'r iiiaiiagemcnt and
1850, 177, §3. government of said almshouses, and shall see that sucli rules and regul.H-
tions are enforced ; and each almshouse shall be visited by one inspector
Chap. 71.] state almshouses and state paupers. 401
at le.ist, once in each ■n-eek. They shall receive an annual salary of one
hundred dollars each, together with their necessary travelling expenses.
Sect. 33. The inspectors shall have the same power to bind as ap- in''p<'rtnr8 to
prentices, minors who are inmates of the institution under their charge, powers "of over-
to cause the inmates of said institution to be returned to the jilace or s^ers of poor,
country from which they came, and to remove insane persons to the state i»52, ars, § 7.
lunatic hospital, as is vested in overseers of the poor. ^5^1! m', §"4.
Sect. 34. The governor, with the advice and consent of the council, supcrm'teudent.
shall appoint a superintendent of each of said institutions, whose salary J;-^'^^'' bond,
subject to tlie approval of the governor shall be fixed by the inspectors ■'■Vj' ^"s, § 5.
thereof, and who shall receive no other compensation or perquisite for " ' ■ " ■ •
his services, except the right to reside with his family in the building
under his care. He shall give bond to the treasurer of the common-
wealth for the faithful performance of his duties, in such sum as shall be
designated by the rules and regulations of the inspectors, and with suf-
ficient surety or sureties to the acceptance of said inspectors, and sub-
ject to the a])proval of the governor.
Sect. 35. Said superintendents shall receive all paupers sent with a to receive
proper certificate from the mayor of any city or one of the overseers of i'™?275'tg
the poor of any town, and provide for them under the rules and regu-
lations herein provided.
Sect. 3G. The several cities and towns may at their own exjiense rmes ami
send to said almshouses, to be maintained at the public charge, all stateplmpciBtQ
paupers who may fiill into distress therein, not having a settlement state aims-
within the commonwealth ; that is to say, the cities and towns in the I'lSirar's, § 3.
counties of Suiiblk, JMiddlesex, and Essex, may send such ]iersons to the i»5u. i'i)§3.
state almshouse at Tewksbury; the cities and towns in the counties of
Norfolk, Bristol, Phinouth, Barnstable, Nantucket, and Dukes County,
to the state almshouse at Bridgewater; and the remaining cities and
towns, to the state almshouse at Monson : prodded^ that the alien com-
missioners may direct the mayor of any city or the overseers of the
poor of any town, to send such paupers to either of the state alms-
houses ; and if any place is so directed to send a pauper to a greater
distance than would be required by the preceding provisions of this sec-
tion, the necessary additional expense shall be paid by the state.
Sect. 37. No city or town shall send to either almshouse any person not to send
who l)v reason of insanity would be dangerous if at large. And if an J"."'|j'in'o-erous.
inmate of such establishment becomes so insane, the inspectors thereof inm.itcs bccom-
niay apply to the judge of a police court, or any two justices of the mifd may'be^
peace and of the quorum, in the county in which the institution is situ- 8i"t to state lu-
ated, who shall have the same power and authority in regard to such isoi, 437, §1.
application and the commitment of such person to either of the state
lunatic hospitals, as judges of probate courts have in regard to lunatics
furiously mad : lyrovided, that it shall not be necessary to give notice of
such ap]ilication to the officers of any place.
Sect. 38. When it is made to ap]iear on application in writing to idiots havins
any two justices of the peace, one of whom shall be of the quorum, or "i"me,°" nuiy*'be
to a police court, that any person having no known settlement in this f™t f" "tat^
state is idiotic and ought to be confined, said justices or court shall send img, los, §'3.
such person to the nearest state almshouse, there to be su]iported, gov-
erned, and employed, in the same manner as persons sent thereto by
overseers of the poor.
Sect. 39. In any case arising imcler the preceding section, all magis- Foes allowed to
trates, ofticers, and witnesses, shall receive the same fees an<l eompensa- sia-i^c^^''' "
tion for services performed, and for travel and attendance, as are allowed is3o, ios,§6.
by law for like services in criminal proceedings, to be taxed, allowed,
and paid, in the same manner.
Sect. 40. When a convict discharged from the state prison or any Discfuirgcd con-
jail or house of correction, having no settlement in this state known to to^tMuoved'to
3i* 51
402
STATE ALMSHOUSES AND STATE PAUPERS. [ChAP. 71.
almshouseB in
certain cases.
18s3, 388, § 1.
When settle-
ment is discov-
ered in tliis
state, sucli pau-
pers to be re-
moved to the
place, &c.
ISj:!, 3SS, § 2.
Convicts too
sick to be re-
moved, ])ow to
be provideil
for.
1853, 388, § 3.
Husband and
wife not to be
separated.
E. S. 43, § 1.
1855, 172, § 1.
Expense of
supporting
state paujier in
Buch case, how
paid, &c.
1855, 172, §§ 1, 2.
"When either
alniHiioiisc is
fnll, iiiinatcs to
be distributed,
&o.
lS5:i, 352, § 3.
185'J, 255.
When all are
full, towns, &c.,
totnkr .■har^'C
of state ]iaii]iCra
at expeiit-e uf
state.
Notice thereof.
1854, 437, § 2.
1853, 352, § 4.
Powers of in-
spectors as to
inmates and
property.
1855, 445, § 3.
.See Ch. 7i).
Ch. Ill, § 4.
Supcrintcnd-
•ents may con-
tract for em-
ployment of in-
jnatcs, ,te.
1858, 168.
Towns liable
i'oi'.tiupport of
the warden, keeper, or master thereof, is at the time of liis discharge
incompetent, by reason of age, infirmity, or disease, to support himself
by hibor, such warden, keeper, or master shall cause him to be removed
to one of the state almshouses ; the expense of which removal .sliall be
certified to the auditor of the commonwealth, upon whose approval
thereof the same shall be paid out of the treasury.
Sect. 41. If after such removal it appears to the inspectors of the
almshouse to which such dischargeil convict is removed, that he has a
legal settlement in this state, they shall cause him to be removed to the
place of his legal settlement, which shall be liable to refund to the com-
monwealth all expenses incurred in behalf of such convict from the
time of his discharge from the state prison, jail, or house of correction ;
to be recovered by a suit to be instituted by the attorney-general in the
name of the commonwealth.
Sect. 42. Any convict who at the legal expiration of his imprison-
ment is in a condition, from bodily infiiTnity or disease, to render his
removal as aforesaid impracticable, shall be provided for and receive
such treatment, in the state jirison, jail, or house of coiTection, as the
exigency of the case may require, until he is in a condition to be re-
moved according to the provisions of section forty.
Sect. 43. When the operation of any provisions of law in relation to
poor and indigent persons might ctiuse a separation of husband and wife
by reason of her having a legal settlement in some place in the common-
wealth, he being a state pauper, both jiarties may be supported at the
almshouse of the place where she has a legal settlement.
Sect. 44. The expense of thus supporting the person who is such
state pauper shall be paid by the commonwealth, and the accounts
therefor shall be audited and allowed by the inspectors of the state
almshouse to which such pauper would otherwise belong, reference
being had to the expense of supporting such person at the state alms-
house, if there committed.
Sect. 45. When either of the state almshouses is full of inmates, the
superintendent thereof shall report the fact to the alien commissioners,
who shall distribute the paupers who cannot be provided for therein,
among the other state pauper establishments, in such manner as shall
be mo.st convenient.
Sect. 46. When by reason of all the state almshouses being full, a
city or town is unable to obtain ailmission for a state pauper, such place
shall take charge of the ]iau]ier until ntjtified by the supei'intendent to
whom application for admission has been made, that the pauper can
be received. The superintendent shall give notice by mail when the
paujier can be received, having regard in so doing to the priority of
applications; and until notice is given, the city or town shall receive
payment for the support of the pauper from the treasury of the common-
wealth.
Sect. 47. The inspectors of the several state almshouses shall have
the same powers in relation to the paupers who are inmates of the same,
and their property, as are vested in towns and the overseers of the poor
in reference to paupers supjiorted or relieved by towiLS, to be exercised
in the same manner.
Sect. 48. The superintendent of each state almshouse, with the con-
sent of the inspectors, may contract with any person, for the employment
of any inmate thereof in any kintl of lawful labor, for such wages or on
such teiTns as the superinteinlent and inspectors approve. When a con-
tract is so made, such inmate shall be discharged from the institution,
and if he refuses to avail himself of the eInplo)^nent ofl'ered shall forfeit
all claim to supjiort as a state jiaujier.
Sect. 49. If a ]iauper having a legal settlement in any place becomes
an inmate of either of said ahnshouses, such place shall be liable to the
Chap. 71.] state almshouses and state paupers. 403
commonwealth for the expense incurred for him, in like manner as one their paupers
town is liable to another in like cases; and the same measures shall be IJofS!"^'
adopted by the inspectors, in regard to notifyincj towns so liable, the i^ss. «5> § *■
removal of the pauper, and the recovery from towns of expenses in- '
curred for hmi, as are prescribed for towns in like cases.
Sect. 50. The kindred who are liable by law to towns for expenses Liability of un-
in supporting such paupers, shall in like manner be liable to the com- port of'suci^
monwealth for any expense incurred for such paupers ; and the inspectors paupers,
may adopt the same measures and institute like legal proceedings for Issfliiwifo!
the recovery of such expenses of the kindred so liable, as are jiresciibed Sec ch. rn.
for towns in like cases.
Sect. 51. If an inmate of either of said almshouses, above the age of Punishment for
sixteen years, leaves the same without the consent of the inspectors 'lousclvt-miout
thereof, and within one year thereafter is found within any city or town consent, nnri
soliciting public or private charity, he shall be punished by confinement i'^'", g/affg"^'
to hard labor in the house of correction for the county within which he
is so found, for a term not exceeding three months.
Sect. 52. Any justice of the superior court, trial justice or ]5olicc Foreifjn p.™-
court, upon complaint of the overseers of the jioor of any j>lace or of a rarried'\vi'Jere
superintendent of alien passengers, in teiTU time or vacation, may, by ""'j; belong.
warrant directed to a constable or other person therein designated, cause is5oVio5,§4"
any pauper not bom, nor having a settlement, in this state who may
conveniently be removed, to be conveyed, at the expense of the state, to
any other state, or, if not a citizen of the United States, to any jilace
beyond sea where he belongs.
Sect. 53. Upon complaint of the trustees of any state lunatic hospi- so may state
tal, the county commissioners of a county, the inspectors of a state ']™"3i''"'J'''''*'
pauper establishment, or the overseers of the poor of a place, a judge of
the probate court shall have the same powers as are given by the pre-
ceding section, to cause the removal of state lunatic paupers under their
charge to any other state, or beyond sea, where they belong.
Sect. 54. The inspectors of the several state almshouses shall audit inspectors to
all the accounts of the superintendents of their respective institutions; ?",f|jent''8™'
and shall report to the governor and council on or before the fitteenth counts, and
day of October annually, the state of the institution under their charge, laWj^Ts^ ul'
and the expenses in detail of said institution for the year ending on i5*^'J?;5'-
1 ..•'.'■ 1859, 177, § '-i,
the last day of the preceding month, with a list of the salaried officers
and their salaries, and, in a tabular form under the heads specified in
section eleven of chapter five, the value of the stock and supplies.
Sect. 55. All accounts for the maintenance of the state ahnshouses, Accounts for
and the sujiport of their inmates, shall, after they have been apjiroved "mshouses'' ""^
by the inspectors, be presented to the state auditor at the close of each how and when
month and paid from the treasury of the commonwealth : jirocided, that i^4,"i89, §5.
if the inspectors deem it necessary, a warrant may be drawn by the
governor on the treasurer of the commonwealth in favor of the superin-
tendent for a sum not exceeding five hundred doll.ars, to enable him to
make purchases during the month ; said sum to be accounted for to the
auditor prior to the advance of any further amount.
Sect. 5G. Nothing shall be allowed from the treasury of the com- Allowance for
monwealth to any county, city, or town, for expenses incurred on account Jl^'2'^275" h'^''
of any state pauper, except in cases expressly ju-ovided by law.
Sect. 57. All accounts against the commonwealth for allowance to Accounts of
counties, cities, and towns, on account of state jiaupers, shall be rendered ho"J?audited,'i;c.
to the board of alien commissioners on or before the third Wednesday k. s.4«, §31,
of January annually; and shall be so made as to include all claims for iJli, iis, §3.
such charges up to the first day of said January, and if approved by said }|^'j*' Jl'.'j^.i
board, and certified by the auditor of accounts, shall be paid from the 275, '§ 4 i' 18537
treasury of the commonwealth. The commissioners may require such f^'Jl' '^^'
accounts to be accompanied with such statement of ])articulars and facts. Resolves,
and substantiated by such affidavits, as raav seem to them proper. 1845! "«'
404
MAINTENANCE OF BASTARD CHILDREN. [ChAP. 72.
CHAPTEE 72.
OF THE MAINTENANCE OF BASTARD CHILDREN.
Section
1. Compliiint, how to be made.
2. WIio may complain, &(■-, if woman refuses.
3. If woman is in state almshouse, complaint
where made.
4. Accused may be held to answer, &c.
5. For what reasous the umse may be contin-
ued, &c.
6. Defendant committed, &c.,how disrhargfed.
7. Trial by jury, and order of court thereon.
8. Mother of child may testify, &e.
Section
9. Complaint not to be withdrawn, without
consent, &c.
10. Liability for support.
11. Party char<;^ed as father may take poor
debtor's oath.
12. Jlother, &c., to have remedy against prop-
erty of father.
13. Proceedings as in civil cases.
H. Comijhiiuaut nut required to support de-
fendant in prison.
Complaint how
to be made.
It. S. 4',l, § 1.
isr.'.i, 2:111, § 1.
1 (Jreenl. 3M.
C. (ireeul. 400.
3 N. H. K. 1.35.
a Mass. 441.
3 Met. 20fl.
GCush. 111.
■WTio may com-
plain, &c., if
woman refuses.
1859, 239, § 3.
If woman is in
state alms-
house, com-
plaint where
made.
1859, 239, §§ 2, 6.
Accused held
to answer, &c.
R. S. 49, § 1.
1851, 9li, § 2.
1.859, 1%.
3 Grecnl. 433.
7 Mass. .340,3%
13 Met. 240, 372,
8 Cush. 294.
2 Gray, 199.
For what rea-
sons the cause
may be contin-
ued, &c.
K. S. 49, § 2.
Section 1. "When a wom.nn who has been delivered of a ba.stard
child, or is pregnant with a child which if born alive may be a bastard,
makes a complaint to a justice of the jieace or police court, and desires
to institute a ])rosecution against the person whom she accuses of being
the father of the chilil, the justice or court shall take her accusation .and
examination, in writing under oath, respecting the person accused, the
time when and place where the complainant was begotten with child, and
such other circumstances as the justice or court deems necessary for the
discovery of the truth of such accusation. The justice or court may issue
a warrant against the party accused, returnable before the same or any
other justice or court having jurisdiction thereof in the county. The
warrant shall run throughout the state, and any officer to whom it is
directed may serve it and a])|ireheiid the defendant in any county.
Sect. 2. If a woman entitled to make a complaint refuses or neglects
so to do when requested by an overseer of the poor of the place where
she resides or has her settlement, or one of the alien commissioners, the
superintendent of a state almshouse or of the hospital at Rainsford
Island, or a person authorized by either of them to m.ake the request, or
either of her jjarents, or her guardian, the person so requesting may
make the comjilaint ; and when already made, if she refuses or neglects
to prosecute the same, either of said ]icrsons, may prosecute the case to
final judgment, for the benefit of the parent, guardian, city, town, or
state. In such cases the bond shall be made to the party for whose
benefit the complaint is made or prosecuted.
Sect. 3. When a woman is an inmate of either of the state alms-
houses, a complaint by her or in her behalf may be made either in the
county where .she then is, or where she last had her usual place of abode
before becoming such inmate, and the warnint shall be returnable in the
latter county or the county where the defendant resides. When a com-
plaint is m.ade in the county of Suffolk, by or in behalf of an inmate of
the hospital at Rainsford Island or the house of industiy .at Deer Island,
the warrant shall be returnable before the police court of the city of
Boston.
Sect. 4. The couit or justice before whom the warrant is returnable,
may after due hearing require the accused to give bond with sufficient
sureties to ajipear and answer to the complaint at the next term of the
superior court holden for tlie transaction of civil business, and abide the
order of court thereon; and may order him to be committed until such
bond is given.
Sect. 5. If at said next court, such woman is not delivered, or is not
able personally to attend, or if there is any other sufficient reason there-
for, the court m.ay order a continuance of the cause from term to term,
as it deems necessary ; and the bond shall remain in force until final
Chap. 72.] maintenance of bastard children. 405
judgment : provided, that it" the sureties in tlie bond at any tenn of 13 Pick. vm.
said court object to being longer held liable, or if the court tor any ' *""*''• ^^"'
cause deems it pro]>er, the court may order a ne^v bond to be taken ;
and the defendant sluill stand committed until he gives such new bond.
Sect. 6. When a person is committed on account of inability to Pefondiint com-
give bond, he shall be discharged Iroin jirison on gi\'Lng at any time Iijs"h™ed''*"^'
thereatter the bond required, approved in the same manner as bail is5g, 34, § 2.
bonds.
SiicT. 7. Upon the trial of the cause, the issue to the jury shall be Triul hv jury,
lether the defendant is guilty or not guilty ; and if the jury find bim courtnrM-TOn
efaulte<I, lie shall be adjudged by the comt to be the K. s. 411, §4.
1, and shall stand charged with the maintenance 2 GreonV. 105.
whether the
guilty, or if he is defaulte
father of such chil
thereof, with the assistance of the mother, in such manner as the court ; ^}'"*>*- ''L'-
shall order; and shall give bond with sutKcient sureties to )ierform said 14' jlass. 3S«.
order, and also to indemnify and save harmless against all charges of ■"^'■''5' ''^'
maintenance her parents and any city or town or the st.ate chargeable
with the maintenance of such chihl ; and he may be comnntted to
prison until he gives such bond ; but if on the trial he is found not
guilty, the court shall order that he be discharged; and the verdict in
either case shall be final.
Sect. 8. The mother of the child shall be admitted as a witness in Mother of child
support of the complaint, and may be compelled to testify; but her ad- ^"5 '49'u' *°'
missions shall not be used against her in any criminal prosecution, 1859,23;!, §4.
cxcejit for peijury committed while so testifying. If upon examination 5 pii.k"';j"*^"
under section one, she accuses any man of being the father of such spiiu. sro.
bastard child, and being ]iut u]ion the discovery of the truth resjieeting locush.^isa,
the same accusation in the time of her travail, she accuses the same *'■'-■
man of being the lather of the child of which she is about to be de-
livered, and has continued constant in such accusation, the fact of sucli
accusation in time of travail may be put in evidence upon trial to cor-
roborate her testimony.
Sect. 9. No com] ilaint shall be withdrawn, dismissed, or settled, by Complaint not
agreement of the mother and the putative tiither, without the consent drawn" without
of the overseers of the poor of the city or town in which she has her consent, ic^
settlement or residence, or of one of the other officers named in section '^ •-•»'> 5 =•
two, or of her parent or guardian, unless jirovision is made to the satis-
faction of the court, to relieve and indemnify any parent, guardian, city,
town, or the state, from all charges that have accrued or may accrue for
the maintenance of the child, and for the costs of complaint and prose-
cution thereof
Sect. 10. No settlement made by the mother and father, before or Liability for
after complaint is made, shall relieve the father from liability to any city i^!j^'i"y_ 55.
or town, or the st.ate, for the support of a bastard child.
Sect. 11. Whoever has been im]irisoned ninety days for having party charged
failed to comply with any order of the court, as provided in this cha])- "^ifepoor™!^;-
ter, shall have the benefit of the laws for the relief of poor virisoners or'e oath,
committed on execution : proiykhd, that he procures like notification of his sreCh.'m.'
intention to take the oath ])reseribed to poor debtors, to be served upon
the clerk of the city or town where the child of which he is the reputed
father has its legal settlement, if there is such place in this state, and
also upon the comjjlainant, if lining, thirty daj's at least before the time
appointed for taking the oath.
Sect. 12. The mother of such child and said city or town, or the Mother, &c., to
state, respectively, may at all times after the liberation of such ]3risoner, ^"y*' remedy,
or taking said oath, recover by action of contract any sum of money IJ-.,''-*''' S**-
which ought to have been paid to them respectively by him, in pur- '' ■ " •
suance of such order of court.
Sect. 13. Prosecutions under this chapter, except as herein other- Proceedings as
wise expressly pro\-ided, shall be according to the course of proceedings '" "^'"^ '^^^^'
4C6
STATE LUNATIC HOSPITALS.
[Chap.
in civil cases, and shall not be entertained at any term of the superior
court held exclusively for the transaction of criminal business.
Complainant Sect. 14. Nothing herein contained shall be so construed as to re-
"upport'dcfcnd- qmre the complainant to pay or give security for the su]i]5ort of the
.int in prison, defendant when he is committed to prison by virtue of the provisions of
this chapter ; nor sliall such defendant be discharged from imjirison-
ment by reason of payment or security not being made or given for his
support.
l-r,-,n(i, §§1, 2.
i:! .Met. 2M).
1852, 1S7.
CHAPTER 73.
OF THE STATE LUNATIC HOSPITALS.
3.
4.
Section
1. Govemmont of each hospital vested in five
trustees. Appointineut aud term of office
of trustees.
2. Trustees to be corporation to take and hold
grants, &c., and invest proceeds.
powers and duties of.
to make by-laws, appoint officers, fix sal-
aries, &c.
5. Salaries, how paid.
6. Visitation of hospitals, annual meeting-,
reports.
7. Treasurer's books.
8. Judg-es may commit lunatics furiously mad;
shall certify where lunatic resided, &c.
9. Person applying for commitment to give
notice, &c.
10. to file a statement, &c.
11. Judge may hear applications at any time,
and shall convene jury in certain cases.
12. How jury to be seleeted and impanelled.
13. Judge to preside ; verdict.
14. How deficiency injury supplied.
15. Fees of jurors, &c.
16. Expenses of trial.
17. Fees of judges for committing and dis-
charging lunatics.
18. Fees of officers for committing to be al-
Section
lowed by court, and made up in the gen-
eral bill.
19. Lunatics having no settlement may be com-
mitted to state hospital.
20. Fees of magistrates, &c.
21. Presence ot lunatic may be required. A-c.
22. Town paupers, &c., at what rates to be ad-
mitted.
23. Expenses of lunatics having known settle-
ments, by whom paid and how recovered.
24. Expenses of lunatics having no known set-
tlement, by whom pjiid aud how recovered.
25. Kemedy of towns for expenses of lunatics
committed to hospitals.
Removal from one hospital to another.
When hospitals are full, trustees may re-
move inmates to jails, &c. Selections for
removal, how made.
Remedies for Boston, Nantucket, and any
county for support of persons so removed.
Kates of pay.
29. liUnatics, how discharged or removed.
30. Removal of incurable lunatics. A jury
may be had on request, &c.
31. After removal, if not comfortably support-
ed, &.C., may be recommitted.
32. Trustees may furnish clothing, &c.
20.
27.
28.
Government of
each hospital
vested in five
trustees.
Appointment
and term of of-
fice of trustees.
K. S. 48, § 17.
185(i, 247, § 1.
1859, 177, § 3.
Trustees may
take and hold
grants, A'cand
mvcst proceeds.
U. S. 48, § 2.
1842, 9(i,§ 1.
1853, 3'8, §1.
1856, 24r, §3.
Section 1. The crovornmont of ench of the state lunatic hospitals at
Worcestei", Taunton, and Northampton, shall be vested in a board of
five tnistees, appointed and eonimissioned by the governor with the ad-
vice and consent of the council, subject to removal only for sufficient
cause. The trustees now in office shall continue to hold their offices
until the -tenns thereof expire according to the provisions of this sec-
tion. On the first Wednesday of February in each year the term of
office of the senior member in each board, as they stand arranged on the
list of their appointments, shall terminate, and the name of the pei-son
appointed to fill the vacancy shall be placed at the bottom of the list, and
other vacancies may at any time be filled, and the names of the persons
appointed substituted in the list for the remainder of the vacant terms.
Sect. 2. The trustees of each hos]>ital shall be a corporation for the
purpose of taking and lioMing, to them and their successors, in trust for
the commonweaUh, any grant or devise of lands, and any donation or
bequest of money, or other personal ]»roperty, made for tlie use of the
institution of which they are trustees, and for the purpose of ]ireserving
and investing the proceeds thereof in notes or bonds secured by good
and sufficient mortgages or other securities, with all the powers neces-
Bury to carry said purposes into effect.
Chap. 73.] state lunatic hospitals. 407
Sect. 3. They shall take charge of the general interests of the insti- TrustcpB, pow-
tution and see that its affairs are eonducteJ according to the lequire- "f^ ""'' ''"*"^''
ments of the legislature and the by-laws and regulations which the }f _!?•.■*'*'§'-
board shall establish for the internal government and economy tljereof; issvkr,' §3.'
and they shall be reimbursed all exijcnses incurred iu the discharge of
their official duties.
Sect. 4. They shall establish by-laws .and regulations, with suitable to make hy-
penalties, for the internal government and economy of the institution ; o'(fl\fc'rs','''ix"ai-
shall appoint a superintendent who shall be a physician and constantly ',',"'c ' f.% o
reside at the hospital ; and a treasurer who shall give bonds for the iji's^, sis'.Vi.
faithful discharge of his duties; and shall appoint, or make provision in issOi ii-»'> § 3.
the by-laws for appointing, such officers as in their o])inion may be
necessary for conducting efficiently and economically the business of the
institution; and shall deteiinine, subject to the apj)roval of the governor
and council, the salaries of all the officers. All their a|i])ointments shall
be made in such manner, with such restrictions, and tor such terms of
time, as the by-laws may prescribe.
Sect. 5. The salaries of the superintendents, assistant-physicians. Salaries, how
stewards, and matrons of the state lunatic hospitals, shall be paid quar- ^™^i iq-_ ^ ]_
terly fi-om the current receipts of the several hos]>itals.
Sect. 6. There shall be thorough monthly visitations of each hospital visitations of
by two of the trustees thereof, and quarterly by a majority of them, and a\"jil'".uujj""e"'
.semi-annually by the whole board, at each of which a written account ports.
of the state of the institution shall be drawn up, which sliall be presented ibjj.aij', § i.
at the annual meeting to be held between the tirst and littecnlh days of j^ii'^'J"'^^'
October. At the annual meeting a full and detailed rejiort shall be imsI vi.__
made, exhibiting a jiartieular statement of the condition of the hospital iss". i' ' . § 2.
and all its concerns, with a list of the salaried officers and their salaries, and
in a tabular form, wider the heads specified in section eleven of chapter
five, the value of the stock and supplies, to be laid before the governor
and council on or before the fifteenth day of October, for the use of
the government ; and at the same meeting the treasure)- shall present to
the trustees his annual report on the finances of tlie institution; both
of which reports shall be made u)) to the thirtieth day of September
inclusi\e. The trustees shall audit the report of the treasurer, and trans-
mit it with their .annual report to the governor and council.
Sect. 7. The accounts and books of the treasurer shall at all times Treasurer's
be open to the ins]iection of the trustees. iSa.OT, §2.
Sect. 8. In the county of Suftblk any judge of the superior court, .Tudues may
and in any other county the judge of the jn-obate court, or if he is sick n';ri,msiy"mad °
or absent or there is a vacancy in the office, any judge of the supreme siiaii eei-tiiy
judicial court or superior court, may commit to either of said hos]:)itals ris'Lied,"*".'"
any lunatic Indian, or other lunatic person, who in his opinion is so furi- JJ...,^ j'jy' I'i;
ously mad as to render it manifestly dangerous to the peace and safety i>-&>', n.'
of the community that he should be at lai-ge ; and all lunatics ordered ^^'-'' ""'•
to be confined by any court according to the provisions of chapters one
hundred and seventy-one and one hundied and seventy-two shall be
committed to one of said hospitals. In all cases the judge shall certify
in what place the lunatic resided at the time of his commitment, or if
ordered to be confined by any court, the jmlge of such court shall certify
in what place the lunatic resided at the time of the arrest in jiursuance
of which he was held to answer before such court ; and such certificate
shall for the j>urposes of this chapter be conclusive evidence of his resi-
dence.
Sect. 9. Any ])erson applying for the commitment of a lunatic under Persons nppiy-
the provisions of the preceding section, shall first give notice in writing m™'t',"to ^ive'*^
to the m.ayor or one or more of the selectmen of the place where the yf'-.°'''o*fv
lunatic resides, of his intention to make such apjjlication ; and satistac- ' '
tory evidence that such notice has been given shall be produced to the
judge.
408
STATE LUNATIC HOSPITALS.
[Chap. 73.
FerBon apply-
mtjnt of a lu
untie to file a
statement, &c.
IsoS, G4, §§ 1, 2,
... Sect. 10. He shall file with his application a statement, as near as can
m™t'of''a'iu"'*' ^^ ascertained, of the civil condition and Ijirthplace of the lunatic ; the
duration and supposed cause of disease ; the previous existence of insan-
ity, or otherwise, in the person or family ; the habits of the lunatic in
regard to temperance ; his disposition, whether suicidal or not ; together
with any facts showing whether he has or has not a settlement ; the
name and address of some one of the nearest relatives; and if the luna-
tic is a woman, whether she has children, and if so, what time has elapsed
since the birth of the youngest ; and if he is unal)le to state any of the
above particulars, he shall state his inability to do so. The statement, or
a copy thereof, shall be transmitted to the superintendent of the hospital
with the order for commitment.
Sect. 11. The judge may hear and determine such applications or
complaints against persons charged as being lunatics, at such times and
jjlaces as he may a])])oint; and when requested by the person com-
jilained against, he shall issue a wan-ant to the sherift' or his deputy
directing him to summon a jury of six lawful men, to hear and deter-
mine the question whether the person comjilained against is so furiously
mad as to render it manifestly dangerous to the peace and safety of the
community that he should be at large.
Sect. 12. The jurors shall be selected in equaV numbers from the
place in which the trial is had, and one or two adjoining places, as the
judge shall direct; and the same proceedings shall be hail in selecting
and impanelling the jury as are prescribed in cha])ter forty-three: joro-
vided, that in the counties of Suftblk and Nantucket all the jurors may
be taken from the same place.
Sect. 13. The judge shall preside at such trial, and administer to
the jury an oath fliithfully and imjiartially to try the issue, and the ver-
dict of the jury shall be final on the comjilaint.
Sect. 14. If by reason of challenges or otherwise there is not a full
jury of the persons summoned, the judge shall cause the officer who
served the summons, or in his absence the officer attending the jury, to
return suitable jiersons to sup]ily the deficiency; and shall h.-ive the
same authority as the supreme judicial court to enforce the attendance
of jurors and witnesses, and inflict fines for non-attendance.
Sect. 15. The officer who summons and attends the jtny shall re-
ceive therefor four cents a mile for all necessary travel, and one dollar
and fifty cents for each daj' that he attends ujton them ; and the jurors
and witnesses shall be entitled to such compensation as is prescribed for
jurors and witnesses in the supreme judicial court.
Sect. 16. The expenses of the trial, including the fees of .all neces-
sary witnesses, shall be allowed and certified by the judge, and jjaid out
of the county treasury.
Sect. 17. There shall be allowed to each judge of the probate court,
for receiving, hearing, and determining, every application made to him
for the commitment of a lunatic, a fee of two dollars, to be paid o\it of
the county treasury. The judges shall ]>rescnt their accounts for such
fees as often as once in each year, to the county commissioners, who
shall audit and allow them if found correct. There shall be allowed to
the judge of the probate court for receiving, hearing, and determining,
an application for the discharge of a lunatic from either hospital, two
dollars, to be paid by the party making the application.
Sect. 18. The suj)erior court may allow to any sheriff, constable, or
other person to whom a precejit is directed by name, who may commit
court and made any jjcrsou to either hospital, the same fees as are allowed to officers
enii'bnif"'^" u|)()n the commitment of j)ersons to jn'ison, and such fiu'ther sums for
1S3S, 31. exjieuses incurred in said commitments as to the court may seem rcason-
,ible ; and the sums so allc)^^•ed shall be inaile u]) in the general bill of
costs for the term of the court at which the allowance is made.
.Tud;^e may hear
applications at
any time, and
Hhall convene
jury in certain
eases.
ISSr, 228, § 1.
ITow jury to be
selected, and
impanelled.
1837, 22S, § 2.
.Tudg-e to pre-
side. Verdict.
1837, 228, § 3.
How deficiency
in jury sup-
plied.
1837, 228, § 4.
Fees of jurors,
&c.
K. S. 24, § 2!).
IS'!/, 228, § 2.
184S, 271.
1855, 120, § 1.
Expenses of
trial.
1837, 228, § 5.
Fees of judj^es
for committing
and discharyiu*;
lunatics.
1860, 235.
of officers for
committing to
be allowed by
Chap. 73.] state lunatic hospitals. 409
Sect. 19. When it appears on application in writing to any two jus- Lunatics hav-
tices of the peace, one of whoin shall be of the quorum, or to a police meut ma"!*
court, that a ]3erson having no known settlement within this state is in- Bont to state
sane, such justices or court shall commit such person to one of the state I'jSi^'ios', § i.
lunatic hospitals.
Sect. '20. In cases unaer the preceding section, magistrates, officers, FeesofmasiB-
and witnesses, shall receive the same fees and comjiensation for services, j^^'^'xi^'sg
attendance, and travel, as are allowed by law for like services in crimi-
nal proceedings, to be taxed, allowed, and ])aid in the same manner.
Sect. '21. Upon every application for the commitment of a person Presence oriu-
as a lunatic to any hospital, the provisions of section ten shall be com- qU'l-e^'ic'"^ "^^
plied with, and the presence of the lunatic at the hearing may be re- i^55, 4w.
quired or dispensed with, in the discretion of the court, judge, or '***"'^-
justices.
Sect. 22. Any lunatic who is supported as a pauper by any jilace, Town pauijcrs,
maybe committed by the overseers of the ])oor thereof to cither of saiil rat'Js''to"bcad-
hosiiitals, with the consent of the trustees, and shall be keiit for a sum nntted.
not exceeding the actual expense of his sup])ort ; and the trustees may iVray, 514.'
in their discretion receive into the hospital, for a less sum, any poor per-
sons suftering under recent insanity, whether suj)ported or not by any
city or town.
Sect. 23. The expenses of said hospitals for the support of lunatics, Expenses of lu-
committed by any of the judicial otficers mentioned in this cha])ter, or ki'iowu'wui"?
bj' virtue of a proclamation of the governor, or by a resolve of the legis- meuts, by
lature, shall be paid by the place in which such lunatics had their resi- iio'v'rrTOvcrJd.
dence at the time of their commitment, unless other sufficient security JJ^p .iJr!^ i'l;
to the satisfaction of the trustees is taken for such su]iport. If any jilace isoK Sou!
neglects or refuses to pay whatever sum may be charged and due accord- ;j c'usii'sss
ing to the by-laws of the hos])ital on account of tlie su]i])ort of any such SGi-ay, 3uo.
patient therein, or for the removal of any patient whom the trustees
are authorized by law to remove, for thirty days after the same has been
demanded by the treasurer in writing of the mayor and aldermen or
selectmen of the city or town liable therefor, the same, with interest
from the time of such demand, may be recovered for the use of the hos-
pital in an action in the name of the treasurer against such delinquent
city or town ; but if it is made to appear that the lunatic lor whom Jiay-
ment is demanded has no settlement within this state, the city or town
of his residence shall not be liable for the expenue incurred on his ac-
count.
Sect. 24. The expenses of the hospitals for the support of lunatics Expenses of lu-
not having known settlements in this state committed thereto, shall be no'iaioivn'sct-
paid by the commonwealth at the same rates charged for other hinatics t'lH'ent, by
residing therein not exceeding two dollars and lifty cents a week lor i.ow recovered,
each lunatic, and the same may afterwards be recovered by the treasurer JJji^'SfsVi"
of the commonwealth of the lunatics themselves, if of sufficient ability if.};', 209.'
to pay the same, or of any kindred obligated by law to maintain them, If^'iJ; JoJl 52.
or of the place of their settlement, if any such within the state is ascer-
tained ; and the district-attorneys or other ]irosecuting officers shall in-
stitute suits therefor when requested. But this section shall not apjily
to cases where sup|)ort was furnished to ]»ersons before the twenty-third
day of June in the year eighteen humlred and fifty-seven.
Sect. 25. Every city and town ]iaying expenses for the support or Remedy of
removal of a lunatic eonmiitted to either hosjiital, shall have like riglits pmBcfs'of luna-
and remedies to recover the full amount thereof, with interest and cost, ties committed
of the Jilace of his settlement, as if such expenses had been incurred in 1;. .s! jg'^s fo.
the ordinary sup]iort of the lunatic; and the lunatic, if of sufficient V^h'l' ■,~q
ability to pay the same, and any kindred obligated by law to maintain u Cusii.'iss.'
him, shall be liable for all such expenses paid by any city or town in
either case.
35 52
410
STATE LUX.VTIC HOSPITALS.
[Chap. 73.
Removal from
one liosi)ital to
auotber.
1S5G, 247, § 5.
When hospitals
are full, trus-
tees may re-
move inmates
to jails, &c.
Selections lor
removal, how
made.
K. S. 48, § 15.
Komedies for
Boston, Nan-
tucket, and any
county for sup-
port of i>ersous
so removed.
Kates of pay.
K. S. 48, § lU.
1852, 312, § 1.
Kesolves, 1845,
114.
Lunatics, how
dischar<red or
removed.
U. S. 48, § 14.
Removal of in-
curable luna-
tics.
A jury may be
had on request,
&c,
1839, 149, § 1.
Sect. 26. Tlie governor may at any time cause to he removed from
one of said hospitals to either of the others, such of the inmates tliereof
as circumstances or the .necessities of the case may in his judgment
require.
Sect. 27. If at any time all said hospitals are so full that the in-
mates cannot all be suitably accommodated fflereiii, and in the o])inion
of the trustees of either hospital it is proper that some should be re-
moved, the trustees may remove to the jails or houses of correction in
the respecti^'e counties from which such lunatics were sent, so many as
may be necessary to afford suitable accommodation for the remainder.
In making selections for such removal the trustees shall, wlien other cir-
cumstances are equal, select foreigners before citizens, and among citi-
zens those who in their opinion are least susceptible of improvement at
the hospital ; and the lunatics so removed shall be subject to the order
and direction of the commissioners of said counties respectively.
Sect. 28. The city of Boston, town of Nantucket, or any county,
may recover expenses incurred for the support of lunatics removed un-
der the preceding section, of the lunatic or any kindred oblig.ated by
law to maintain liiin, and shall have like rights and remedies to recover
the full amount of such expenses against the place of his settlement -as
towns have against each other to recover the expen.ses of supporting
paupers. If the lunatic has no settlement in this state, and such ex-
penses are not paid by himself or his kindred, said city, town, or county,
shall be indemnified by the commonwealth : jjrovidcd, that the sum to
be paid by the commonwealth shall in no case exceed two dollars and
fifty cents per week for a term less than thirteen weeks ; two dollars and
twenty-five cents per week for any term exceeding thirteen weeks and
less than twenty-six weeks ; two dollars per week for any term exceed-
ing twentj-six weeks and less than one year ; nor be more than at the
rate of one hundred dollars per year for any term of one year and up-
wards ; nor more in any case than the amount actually paid out and
expended for tlie support of such state lunatic pauper.
Sect. 29. Any two trustees of either hospital, or either of the jus-
tices of the su]>reme judicial court or superior court, at any term held
within and for the county in which the hospital is located, may, on ap-
plication in writing for that purpose, discharge from confinement, .ifter
the cause of such confinement has ceased, any lunatic committed thereto.
The trustees may also remo\e any idiot or other patient to the ]>lace
where the judge or court committing him shall certify that he resided,
when in their opinion he ceases to be dangerous and is not susce])tible
of mental impro\'ement by remedial treatment at the hospital, if such
place shall not remove him after reasonable notice in writing from the
trustees.
Sect. 30. Any justice of the sujireme judicial court or superior court,
at any temi held within and for the county in which either hospital is
located, or the judge of the jn-obate court of such county, may on a])])li-
cation in writing for the discharge from such hosjjital of any lunatic who
has remained there a sufficient time to make it appear that he is incura-
ble, cause him to be delivered to the agents of any place in which he
has his legal settlement, or to his friends when it ai)])ears that it would
not be to his injury, and that he would be comfortably and safely pro-
vided for by any jiarent, kindred, friend, master, or guardian, or by the
place of his legal settlement. When request for the pur])ose is made in
writing by any person interested in such discharge, the judge before
whom the trial is to be held shall issue a warrant to the sheriff of the
county or his deputy, directing him to summon a jury of six lawful men
to hear and determine the question whether such lunatic is incurable,
and may be comfortably and safely pro\-ided for according to tlie terms
of this section ; the proceedings shall be the same in selecting the
Chap. 74.] county receptacles for insane persons.
411
jurors, concluctiiit; tlie tri:il, ami allowing the costs, as are provided in
sections twelve, thirteen, fourteen, fifteen, and sixteen.
Sect. 31. If after the discharge of an incurable lunatic under the After removal,
jjreceding section, it is made to appear on comjjlaint by any person iin- biy^uppoVtod?
der oath to the judge of the probate court for the county in wliich the ic, may be re-
lunatic has his legal settlement or is placed, that lie is not comfortably ibsti, hu, §2.
suiJ]iorted, or that the public safety is endangered by him, said judge
sliall order his recommitment to said hospital. And the same proceed-
ings may be had in determining these questions by a jury, vipon the re-
quest of any person interested therein made in writing to said judge, as
are j)rovi(led in the preceding section.
Sect. 32. No pauper shall be discharged from either hospital with- Trustees may
out suitable clothing ; and the trustees may furnish the same at their in""&c..'^ °
discretion, together with such sum of money, not exceeding twenty dol- k. s. 4s, § 13.
lars, as they may deem necessary.
CHAPTEE 74.
OF COUNTY RECEPTACLES FOR INSANE PERSONS.
Section
1. County receptacles for insane persons, &c.,
to be provided, &c.
2. Special provisions for the county of Essex.
3. Persons removed from state IiospitalH to
j;iils, &c., where to be confined.
4. Who may commit insane persons not furi-
ously mad, &c.
5. Party entitled to a jury.
0. Support of persons conlined.
7. Insane persons confined in jails, &c., may
be removed by order of governor.
Section
8. How insane persons not furiously mad may
be discharged.
9. Persons committed by order of trustees of
state hospitals, how discharged or re-
moved.
10. .Tailors, &c., not to contract for support of
insane paupers, &c.
11. Fees of magistrates, Ac.
BOSTON LUNATIC HOSPITAL.
12. Boston Lunatic Hospital.
OF COUXTT RECEPTACLES FOR INSANE PERSONS.
Section 1. There shall be in each county within the precincts of county recepta-
the house of correction, or if in the judgment of the county commis- pe^8on8"&c"'to
sioner.s it cannot be conveniently provided within the same, then in be provided, &c.
some other building or buildings to be deemed a part of the house of ili!.'| ioo;|§i,2.
correction, a convenient apartment or receptacle for the confinement 5 Met. w.
of insane persons not furiously mad.
Sect. 2. The county commissioners of the county of Essex shall ap- special provis-
point a superintendent and matron for the receptacle in that county, I!J,"in{j.'^of Es-
and all persons confined therein shall be under the care and custody of sex.
said superintendent; who shall keep a record of all commitments and isiii,' isi.'la.'
discharges, and receive a reasonaljle compensation for his services.
Said county shall have the same remedies for the exj^enses of the care
and support of such persons, as are provided for keepers and masters of
houses of correction for the maintenance of prisoners committed to
houses of correction.
Sect. 3. All insane persons removed from either state lunatic hos- Persons re-
pital by order of the trustees thereof, jiursuant to any provisions of law "Jate hospitals
which require persons so removed to be confined in the jails or houses to jails, i-c,
of correction of any county, shall be confined in said receptacles when confined! ^
established. i««. i54, § s.
Sect. 4. Wlien it appears on representation in writing to two jus- who mayeom-
tices of the peace, one of whom shall be of the quorum, or to a police sons'noTfnrT-'^
court, that any person having a known settlement in this state is an ousiy mad, &c.
412
COUNTY EECEPTACLES FOR INSANE PES30NS. [ChaP. 74.
183fi, 233, § 2.
law, 4fW.
185a, lOS.
Partly entitled
to a jury.
1838,73, §§1,2.
Support of por-
80U8 conliiK'c!.
R. S. H, §§ 2!»,
30.
ISifi, 223, § 2.
S Met. oi.
InBfine pprsons
coufiuedinjiiils,
&c., may be re-
moved by order
of governor.
1854, 115, §§ 1, 2.
How ins.ane
persons not
lurionsly mad
may be clis-
charged.
1S3«, 223, § 3.
Persons com-
mitted by orfler
of trustees of
state hospitals,
how discharged
or removed.
1838, ?3, § 3.
Jailers, &c., not
to contract for
support of in-
sane paupers,
&c.
K. S. 18, § 12.
Foes of magis-
trates, &c.
1836, 223, § i.
insane person not fnriously mad, said justices or court may order liim to
be committed to tlie county receptacle aforesaid ; and at tlie liearing
upon such representation tlie ]iresence of the insane person may be re-
quired or dispensed with in the discretion of tlie justices or court.
Sect. 5. When any re]iresentation is made under the provisions of
the jireceding section, said justices or court shall upon the request of the
person complained against issue a warrant to the sheritt" of the county
or his deputy, to summon a jury of six lawful men, to hear and deter-
mine the matter of such representation. The provisions of sections
twelve, thirteen, fourteen, fifteen, and sixteen, of chapter seventy-three,
shall apply to trials by jury herein provided for; and the justices or
court aforesaid shall have the same powers and perform the same
duties as are therein given to or required of the judges named in said
sections.
Sect. 6. Provision shall be made for the comfortable su]iport of all
persons confined in said receptacles, and they shall be governed or
emplo)'ed in such manner as the county commissioners may in the exer-
cise of their discretion deem best. Such sum a week shall be allowed
and paid for the supjiort of jiersons so confined as the commissioners
shall direct, an<l the same may be recovered of such jierson, or of any
jiarent, kindred, master, guardian, city, or town, obligated by law to
maintain him.
Sect. 7. Any insane ]ierson confined by legal authority in a jail,
house of correction, or such C(junty rece]itacle, may be removed there-
from to either of the state lunatic hosjiitals, or to any other jail, house
of correction, or other suitable ])Iaee, l)y order of the governor, when it
appears to him that such removal would be expedient and just; and the
sheriii'of the county in which such person is confined shall execute such
order and convey the insane person to the place therein designated.
Sect. 8. Any person confined by virtue of section four may be dis-
charged, when in the opinion of any two justices of the peace, one of
whom is of the quorum, or of a police court, such discharge would be
for the benefit of such person, or ■when in their opinion such person
would be comfortably sup]iorted by any parent, kindred, friend, master,
or guardian, or by any place in which he has a legal settlement.
Sect. 9. Any insane ]ierson confined in a jail, house of correction, or
county receptacle, by authority of a certificate of the trustees of either
of the state lunatic hospitals, may be discharged by the county commis-
sioners when the cause of confinement has ceased to exist. And the
commissioners, when in their opinion such insane person can in such
manner be more comfortably ]irovided for without danger to the safety
of the public, may provide for his custody and support in some other
place than such recejitacle, jail, or house of correction, or may deliver
him to the custody and care of any jilace in which he has a legal settle-
ment ; such person still continuing subject to the order and direction of
said commissioners. The expense shall be reimbursed in the same man-
ner and recovered by the same remedies as are provided in section
twenty-eight of chapter seventy-three : but in no case shall the sum
charged for such sup])ort exceed two dollars and fifty cents a week.
Sect. 10. The kee]ier of a jail, house of correction, or county recep-
tacle shall not contract for supporting within the county buildings any
lunatic who is a town jiauper, without first obtaining the a]i])iob,ition
in writing of the commissioners; and for every oflence against this
provision such keeper shall forfeit a sum not less than one hundred
dollars.
Sect. 11. In cases arising under sections four and eight, all magis-
trates, officers, and witnesses shall receive the same fees as are allowed
by law for like services in criminal proceedings, to be taxed, allowed,
and paid, in like manner.
Chap. 75.] state industrial school for girls.
413
BOSTON LUNATIC HOSPITAL.
Sect. 12. Nothing contained in this chapter or in cha]itcr seventy- Boston lunatio
three shall repeal any [irovisions of law specially relating to the Boston !|'^1|;)''J:!',-
lunatic hospital, or the confinement, care, and support of insane persons is4ui ro. '
therein. '"•"-■'^
1881,243.
ISSr, 281, 302.
CHAPTER 75.
OF THE STATE INDUSTRIAL SCHOOL FOR GIRLS.
Section
1. Government of school vested in seven
trustees. How appointed j tenure of office ;
conipen-sation.
2. Duty of trustees, &c. ; by-laws.
3. Treasurer, appointment and bond of.
4. to liold and invest legacies.
5. Comniissioucra to be appointed, wlio, with
judges of probate, shall have jurisdiction
under this chapter.
6. GirLs between seven and sixteen may be
committed ; arrest; summons to parentfi,<tc.
7. ExMiaination, trial, commitment ; form of
warrant ; variance from form, when not
material.
8. Service of summons.
9. Courts may transfer girls held for criminal
offences to judges or couiuiisaioners.
10. Second commitment may be made without
summons to parents.
11. Fees of judges and officers.
13. Appeal allowed.
13. Girls to be kept until bound out, &c.
Section
14. Trustees may discharge girls,
15. may bind them out, &e.
16. Indenture of apprentieeship not to be as-
signed, except, &c. ; may be cancelled.
17. Discharge of girl when master is guilty of
cruelty, &c.
18. Assignment of indenture upon death of
master.
19. Trustees to be guardians of girls so bound
out.
20. Instruction, &c., of girls ; selection of mas-
ters when binding out girls.
21. Duties of superintendent.
22. bond, accounts, &c., of; register of girls
to be kept.
23. contracts of, to be made in writing. Suits
on.
24. Support of persons committed.
25. Examinations of school. Records ; re-
ports ; treasurer's accounts.
20. Trustees may expend money for houses,
&c. ; number not to exceed six.
Section 1. The government of the state industrial school for girls
shall be vested in a l)oard of seven trustees apjiointed and eoniinissioned
by the governor with the advice and consent of the council, subject to
removal only for sutHcicnt cause. The trustees now in office shall con-
tinue to hold their offices until the tenns thereof expire according to the
provisions of this section. On the first Wednesday of February in
each year the terms of office of the two senior members as they stand
arranged on the list of their appointments shall terminate, and the
names of the persons appointed to fill the vacancies sliall he jdaced at
the bottom of the list. Other vacancies may at any time be filled, and
the names of the persons appointed shall be substituted in the list for
the remainder of the vacant terms. The trustees shall receive no com-
pensation for their services, but shall be allowed all expenses incurred
by them in the discharge of their duties.
Sect. 2. The board shall take charge of the general interests of the
institution, see that its affairs are conducted in accordance with the
requirements of the legislature, and such by-laws as the board may
adopt, and that strict discipline is maintained therein ; pro\ude employ-
ment for the inmates, and bind out, discharge, or remand them, as is
hereinafter provided; exercise a vigilant supervision over the institution,
its officers, and inmates ; appoint a superintendent and chaplain, and such
matrons, assistants, teachers, and other officers, as in its judgment the
wants of the institution may require, and prescribe their duties ; remove
them at pleasure and appoint others in their stead ; and determine tJie
salaries to be paid to the officers, subject in all cases to the ajiproval of
the governor and council. The by-laws may be amended by the con-
35*
Government of
school vested in
srvou trustees.
How ai>pointed;
tfiiiirc of office ;
conipcnBation.
IS55, 442, §§1,
:J4.
1,s5ri, 00.
185U, 177, § 3.
Duty of trus-
tees, &c.
By laws.
1K55,442, §§2,
24.
414
STATE INDUSTRIAL SCHOOL FOR GIRLS. [ChAP. 75,
Treasurer, ap-
poiutmcnt aud
bond of.
1855, «2, § 23.
to hold and
invest legacies,
1856, 63.
Commissioners
to be appointed,
who, with
judi^es of pro-
bate, shall have
jurisdiction
under this
chapter.
1855, 442, § 9.
Girls between
seven and si.ic-
teen may be
committed ; ar-
rest ; Bummons
to parents, Ac.
1855, «2, § i.
Examination,
trial, commit-
ment.
1855, 442, § 4.
Form of war-
rant.
Variance from
form, when not
material.
sent of five membere of the board at a legal meeting ; but no alteration
shall be valid until approved by the governor and council.
Sect. 3. There shall be a treasurer ap])ointed by the governor and
council, who shall before he enters upon the discharge of his duties give
a bond to the commonwealth, with sureties satisfactory to the governor
and council, in the sum of three thousand dollars, conditioned that he
shall faithfully account for all money received by him as treasurer;
Avhich bond when approved shall be tiled in the office of the treasurer
of the commonwealth.
Sect. 4. The treasurer shall receive, hold, and invest, for the benefit
of the school, all legacies, devises, and donations, to or on account of the
school, subject to such regulations as may be established from time to
time by the trustees.
Sect. 5. The governor with the advice and consent of the council
upon request of the mayor and aldermen, selectmen, or overseers of the
poor of any city or town, shall appoint and commission in the same
manner as justices of the peace are appointed and commissioned one or
more suitable persons residing in such city or town, who shall have au-
thority therein to hear and determine conTplaints and make commit-
ments under this chapter; and judges of the probate courts shall have
like authority within their respective counties.
Sect. 6. When a girl between the ages of seven and sixteen years
is brought by a constable, police officer, or other inhabitant of this
state, before such judge or commissioner, upon com])laint that she has
committed an offence punishable by fine or imprisonment other than
by imprisonment for life, or that she is leading an idle, vagrant, or
vicious life, or has been found in any street, highway, or public ])lace, in
circumstances of want and suffering, or of neglect, exposure, or aban-
<lonment, or of beggary, the judge or commissioner shall issue a sum-
mons to the father of said girl, if lie is living and resident within the
place where she was found, and if not, then to her mother if she is
living and so resident ; and if there is no such father or mother, to the
lawful guardian of said girl, if any there is so resident, or if not, to the
person with whom according to her own statement and such testimony
as shall be recei\-ed she resides; and if there is no person with whom
she statedly resides, the judge or commissioner may appoint some suit-
able person to act in her behalf; requiring him or her to appear at a
time and place stated in the summons, to show cause, if any there is,
why said girl shall not be committed to said institution.
Sect. 7. At the time mentioned in the summons, the judge or com-
missioner shall proceed to examine the girl and any party appearing in
answer to the summons, and to take such testimony in relation to the
case as may be produced. If the allegations are proved, and it ap])ear8
that the girl is a suitable subject for said institution, and that her moral
welfare and the good of society require that she should be sent thereto
for instruction, employment, or refonnation, he shall commit her by a
warrant in substance as follows: —
To (A B) one of the constables (or police officers) of the city (or town) of
You are hereby commanded to take charge of C D, a girl between the ages of seven
and sixteen years, who has been proved to me to be a suitable subject for the state in-
dustrial srhool for girls, and a proper object for its care, discipline, and instruction, and
deliver said girl, without delay, to the superintendent of said school, or other person
in charge thereof, at the place where the same is established. And for so doing this
shall be your sufficient warrant.
Dated this day of 18 , at , (in the county of , in the
commonwealth of Massachusetts.)
But no variance from said form shall be deemed material if it suffi-
ciently appears upon the face thereof^ that the girl is committed by fhe
magistrate in fhe exercise of the powers given to him by this ch.i]>ter.
The warrant shall be executed by a constable or jiolice officer of tlie place
Chap. 75.] state industrial school fou gikls. 415
■where the case is heard. Accompanying the warrant, the magistrate
shall transmit to the superintendent, by the oiMcer serving it, a statement
of the substance of the complaint and testimony given in the case.
Sect. 8. Summonses to appear before a iudiie or commissioner as Service of sum-
aforesaid, shall be served by a constable or police officer, by delivenng isoo, 442, §3.
the same personally to the party to whom it is addressed, or leaving it
with some person of sufficient age at the ]>lace of residence or business
of such party ; and said constable or police officer shall immediately- make
return to the same magistrate of the time and manner of such service.
Sect. 9. When a girl between seven and sixteen years of age is Courts msy
brought for trial before a trial justice or court of criminal jurisdiction, 5,™^!! fj[mi.
charged with an offence which may be punished by fine or imprisonment, n"' offences to
and the justice or court is of opinion that if found guilty she would be a nlislioncrs.""
fit and proper subject for said school, a decree to that effect shall be li^5o, «2, §8.
entered of record; and thereupon such justice or court shall by a war-
rant cause such girl to be brought forthwith before some judge or com-
missioner authorized to commit girls to the school, and transmit to him
the complaint or indictment and waiTant by virtue of which she has been
arrested, and he shall thereupon have the same jurisdiction and powers
as if she had been brought before him upon an original complaint.
Sect. 10. If a girl previously committed to the school is brought Scexmd commit-
before a judge or commissioner upon any allegation set forth in section "lalie without
six, he may examine the case and issue his warrant for committing her summons to
to the school v\dthout having issued the summons required in said iS«"4«>§o.
section.
Sect. 11. The fees and compensation allowed to judges and commis- Fees of judges
sioners under this chapter, shall be the same as by law are allowed to i"^5°^'^s'*io
trial justices; and all officers serving process shall be allowed the same
fees as they are entitled to for serving process in criminal proceedings.
Sect. 12. Any girl ordered to be committed to the school may appeal Appeal allowed.
from such order in the manner provided in respect to appeals liom trial if^^'**2'§'-
justices. And the case shall be entered, tried, and finally determined,
in the court to which the appeal is made.
Sect. 13. Any girl committed to the school shall there be kept, disci- Girls to be kept
plined, instructed, employed, and governed, under the direction of the ^"tii bound out,
trustees, until she is bound out, or amves at the age of eighteen years, i^55, 442, §§ s,
or is otherwise legally discharged. '
Sect. 14. Tlie trustees shall discharge and return to her parents. Trustees may
guardian, or protector, any girl who, in their judgment, ought for any lissj'iiff/i'o.'*'
cause to be removed from the school. And in such case the trustees
shall make an entry upon their records of her name, the party to whom
she was returned, and the date when she left the school, together with a
statement of the reasons for her discharge ; a copy of which record signed
by their secretary they shall forthwith transmit to the judge or commis-
sioner by whom the girl was committed.
Sect. 15. The trustees may bind out as an apprentice or seiTant any may bind
girl committed to their charge, for a term not longer than until she ]g^™442,*'§*8!
arrives at the age of eighteen years; and the master to whom the girl is isas, no.
bound shall by the tenns of the indenture be required to rejiort to the
trustees as often as once in every six months, her conduct and behavior,
and whether she is still living under his care, and if not where she is. And
the trustees, and master or mistress, apjirentice or servant, shall respec-
tively have all the rights and privileges and be subject to all the duties
set forth in chapter one hundred and eleven in the same manner as if
said binding or apprenticing were made bj' overseers of the poor.
Sect. 16. A person receiving an apprentice under the provisions of indenture of
this chapter, shall not assign or transfer the indenture of apprenticeship, Sotto'beas-'''
nor let out her services for any period, without the consent in writing of ^'gn^d, except,
the trustees. If the master for any cause desires to be ijlieved from the canceii«f
416
STATE INDPSTUIAL SCHOOL FOP. GIUL?
[Chap.
1855, 443, § 15.
Dischari^o of
o^irl, when mas-
ter is tfuilty of
cruelty, Ae.
1855, 41.:, § 16.
Assigfnment of
inileuture upon
death of master.
1855, 442, § 1?.
Trustees to be
guardians of
girla so bound
out.
1855, 443, § 18.
Instruction,
&c., of girls ; se-
lection of mas-
ters when bind-
ing out girls.
1Sj5, 443, § 19.
Duties of super-
intendent.
1855, 443, § 30.
bond, ac-
counts, ite., of.
1835, 442, §§ 31,
2.3.
1857, 215.
contract, the trustees upon application may in tlieir discretion cancel the
imlenture and resume the cliarjije and management of the girl, and sliall
have the same power and authority in regard to her as before the inden-
ture was matle.
Sect. 17. If a master is gnilty of cruelty or misusage towards a girl
so bound to service, or of any violation of the terms of the indenture, the
girl or tnistees may make coni]jlaint to a judge or commissioner afore-
said, who shall summon the parties before him and examine into the
complaint; and if it appears to be well founded, he shall by certificate
under his hand discharge the girl from all obligations of future service,
and restore her to the school to be managed as belbre her indenture.
Sect. 18. Upon the death of tlie master to whom a girl is so bound
to service, his e.xecutor or administrator, with the consent of the girl in
writing, acknowledged by her and ap)iroved by the trustees, may assign
the indenture to some other person ; which assignment shall transfer to
ami vest in the assignee all rights and subject him to all responsibilities
of the original master.
Sect. 19. The trustees shall be the guardians of every girl so bonnd
or held for service, shall take care that the terms of the contract are faith-
fully fulfilled, and that she is jn-opcrly treated; and they shall especially
inquire into the ti'eatment of every such girl and cause any grievance
to be redressed.
Sect. 20. They shall cause the girls under their charge to be instructed
in piety and moralit}', and in such branches of useful knowledge as are
ailapted to their age and cajjacity, and in some regular course of labor,
either mechanical, manufacturing, or horticultural, or a combination of
these, and especially in such domestic and household labor and duties as
are best suited to their age, strength, disjiosition, and capacity; and in
such other arts, trades, and employments, as may seem to the trustees
best adapted to secure their reformation, amendment, and future benefit.
In bimling out girls they shall have scrupulous regard to the religious
and moral character of those to whom it is proposed to bind them, that
they may secure to the girls the benefits of good examjile and whole-
some instruction, and the best means of improvement in virtue and
knowledge, and the opjiortunity of becoming intelligent, moral, useful,
and hap])y women.
Sect. '21. The superintendent, with such subordinate oflicers as the
trustees may appoint, shall have the general charge and custody of the
girls. He shall be a constant resident at the school, and under the direc-
tion of the trustees sliall discipline, govern, instruct, and employ, and
use his best endeavors to relbrm, the inmates in such manner as shall,
while preserving their health ami promoting the proper development of
their physical system, secure the formation as tar as possible of moral,
religious, and industrious habits, and regular thorough progress and im-
provement in their studies, trades, and emplojnuents.
Sect. 2"2. He shall before he enters upon the duties of his ofiice give
a bond to the commonwealth, with sureties satisfiictory to the governor
and council, in the sum of two thousand dollars, conditioned that he
shall faithfully perfonn all his duties and account for all moneys received
by liim as su]ierintendent ; which bond when approved shall be filed in
the office of the treasurer of the commonwealth, lie shall have charge
of all the property pertaining to the school within the precincts thereof^
and under the direction of the trustees shall make purchases of books
with the income and profits, and according to the terms of the donation
of Henry B. Rogers. He shall keep in suitable books complete accounts
of all his receipts and ex))enditures, and of all property intrusted to
him, showing the income and expenses of the institution ; and shall ac-
count to the treasurer in such manner as the trustees may require for
all money received by him. His books, accounts, and documents, relat-
Chap. 76.]
STATE REFORM SCHOOL.
41^
incT to the school, shall at all times be open to the inspection of the
trustees, who shall at least once in every six months carefully examine
the same, and the vouchers and documents connected therewith, ami
make a record of the result of such examination. He shall keep a regis- Register of girU
ter containing the name and age of eacli girl, and as far as ])ractieable "* " '^ ^^^'
the circumstances connected with her history to the time of her admis-
sion to the school ; and he shall add thereto such focts as may come to
his knowledge, relating to her history while at the institution and after
leaving it.
Sect. 23. All contracts on account of the institution shall be made Superintendent
by the superintendent in wiiting and ajjproved by the trustees if their t?acts in writ-
by-laws require it ; and the superintendent or his successor may sue or jjjg^^ ^^
be sued thereon to final judgment and execution. No suit shall abate ibis, -m, § as.
by reason of the office of superintendent becoming vacant, but any
successor in office may take upon himself the prosecution or defence
thereof; and upon motion of the adverse party and notice, he shall be
required to do so.
Sect. 24. The city or town in which any girl sentenced to the school Support of per-
has her legal settlement, shall, ujion notice and demand by the treasurer f™* commit-
of the school, pay to such treasurer fifty cents a week towards the su]> iso". iso.
port of such girl while she remains there; and such city or town may
recover any sum so paid, of the parent, kintlred, or guardian, liable to
maintain the girl.
Sect. 25. One or more of the trustees shall visit the school at least Examination of
once in every two weeks ; at which time the girls shall be examined in iJel-ords -, re-
the school-rooms and workshops, and the register ins]tected. A record poi-ts ; treasur-
shall be kept of these visits in the books of the superintendent. Once iJir,.-), -hs, § -js!
in every throe months, the school in all its departments shall be thor- IJ^.V f-i ^,';,
oughly examined by a majority ot tlie trustees, and a report tnereot
made to the board. On or before the fifteenth day of October in each
year an abstract of the quarterly reports shall be prejjared, wliich,
together with a full report by the superintendent, and a list of the sal-
aried officers and their salaries, and, in a tabular form, under the heads
specified in section eleven of chapter five, the value of the stock and
supplies, shall lie laid before the governor and council for the informa-
tion of the legislature. The treasurer shall also submit at the same
time an accurate detailed account of the receipts and ex])enditures for
the year terminating on the last day of tlie preceding month.
Sect. 26. Tlie trustees may expend any money given for the pur- TniBtees may
pose, in erecting houses or other buildings on the lands of the state at ?„ houses'.'&c. ;
Lancaster, for increasina: the accommodation of the school, ijlans there- number not to
. • 1 t exceed S1K<
for being first approved by the governor and council; but the whole issa, 2H,§i-
number of such houses shall not exceed six.
CHAPTER 76,
OF THE STATE REFORM SCHOOL FOR BOYS.
STATE REFORM SCHOOL AT WE3TBOROUOH.
TYustees*
Section
1. Government of school vested in seven trus-
tees ; appoiutment, tenure of ofl&ce, com-
pensation.
2. Trustees to be a corporation.
3. to control building^s, &c.
4. general powers and duties of.
53
Section
5. Trustees, duties of, as to instruction, disci-
pline, &c.
C. may bind out boys, &c.
7. to visit scliool. Reports to be made ;
treasurer's account.
Su2)erintendeni.
8. Superintendent, powers and duties of.
9. to have cliarge of property, give bond,
keep books, Ac.
418
STATE REFORM SCHOOL.
[Chap. 76.
Section
10. Superintendent to make contracts, Ice.
Suits.
Treasurer.
11. Treasurer, appointment and bond of.
NAUTICAL BRANCH OF THE ST.VTE REFORM
SCHOOL.
12. Nautical branch ; number of trustees ; sep-
arate officers.
13. Trustees, appointment and tenure of of-
fice of.
14. to be a corporation, &c.
15. to have control of scliool-ship, &c.
16. Superintendent, master of ship.
COMMITJIENTS.
17. Commitments to school. Proceedings.
18. Same subject. Form of warrant.
19. Judge to certify residence, age, &c.
Section
20. Service of warrant, &o.
21. Duties of justice before whom boy is
brought for trial, &c.
22. Second commitment.
2-3. Unfit subjects may be held for trial in su-
perior court.
24. Appeal, &c.
25. Fees of judges, &c.
26. Courts may sentence boys to school, &e.
Notice before sentence.
confinement and discharge.
27. Term of commitment. Discharge, &c.
transfer of inmates.
28. Boys may be transferred, &c.
support of inm.^tes by cities and towns.
29. Support by towns. Liability of kindred.
Government of
school vested in
seven trustees ;
appointment,
tenure of office,
componsatiuu.
1R47, loa, §§ 1,
14.
:8S0, 112, §2.
18SU, 177, 5 3.
Trustees to be i
corporation.
1848, 303.
to control
buildings, &c.
1847, 105, § 14.
general pow-
ers and duties
of.
1S47, 16S, § 2.
STATE REFORM SCHOOL AT WESTBOROUGH.
Trustees.
Section 1. The government of the state reform school at West-
borougli shall be vested in a board of seven trustees appointed and
commissioned by the governor with the advice and consent of the
council, subject to removal only for sufficient cause. The trustees now
in office shall continue to hold their offices until the terms thereof
expire according to the provisions of this section. On the first Wednes-
day of February in each year the terms of office of the two senior
members as they stand an-anged on the list of their appointments shall
terminate, and the names of the jiersons appointed to fill the vacancies
shall be placed at the bottom of the list. Other vacancies may at any
time be filled, and the names of the persons appointed shall be substi-
tuted in the list for the remainder of the vacant terms. Any person
whose term of office expires may be reappointed. The trustees shall
receive no compensation for their services, but shall be allowed all
exjienses incuiTod by them in the discharge of their duties.
Sect. 2. The trustees shall be a corporation by the name of the
Trustees of the State Reform School, for the puqiose of taking and
liolding, to themselves and their successors in trust for the common-
Avealth, an}' grant or devise of lands and any donation or bequest of
money or other personal property made for the use of said institution,
and for tlie puqiose of preserving and investing the proceeds thereof in
good securities, with all powers necessary to carry said purposes into
eifect.
Sect. 3. They shall have the control of the buildings erected for
the purposes of the institution at Westborough, and the lands con-
nected therewith.
Sect. 4. They sh.all take charge of the general interests of tlie
institution ; see that its affiiirs are conducted in accordance with tlic
requirements of the legislature and such by-laws as the board may from
time to time adopt, and that strict discipline is maintained therein ;
provide emiiloyment for the inmates and bind them out, diseliarge, or
remand them, as herein iirovided ; ai^jioiut a sujierintendent, a steward,
teacher or teachers, and such other officers as in their judgment the
wants of the institution may require, and jirescribe their duties ; exer-
cise a vigilant supervision over the institution, its officers, and inmates ;
remove sucli ofticers at pleasure and appoint others in their stead ; and
determine tlie salaries to be paid to the officers, subject in all cases
to the approval of the governor and council. The by-l.aws may be
amended by the assent of five tru.stees at a legal meeting; but no
alteration shall be i-,alid until approved by the governor and council.
C::ap. 7G.] state reform school. 419
Sect. 5. They shall cause the boys under their charge to be in- Tmstoos, du-
.structed in piety and morality, and in stich branches of useful knowl- 'structiim disd-
cdge as are adapted to their age and capacity ; and in some regular pi"!''. Re-
course of labor, either mechanical, manutaeturing, agricultural, or hor- '' '"'*"'
ticultural, or a combination of these, as is best suited to their age,
strength, disposition, and capacity ; and in such other arts and trades
as may seem best adapted to secure the reformation, amendment, and
future benefit of the boys.
Sect. 6. They may bind out boys committed to the school, as may bind out
apprentices or servants until they become twenty-one years of age, or \^'\^'sg
for any less term ; and the trustees, and master or mistress, apprentice isso, m, § i.
or servant, shall respectively have the rights and privileges and be sub-
ject to the duties set forth in chapter one hundred and eleven, in the
same manner as if such binding or apjirenticing were made by over-
seers of the poor. In binding out boys, they shall have scrupulous
regard to the religious and moral character of those to whom they are
to be bound, that they may secure to the boys the benefit of a good
example and wholesome instruction, and the sure means of im]jrove-
ment in virtue and knowle<lge, and thus the opportunity of becoming
intelligent, moral, useful, and happy citizens.
Sect. 7. One or more of the trustees shall visit the school at least to iisit school.
ODce in every two weeks, at which time the boys shall be examined in J,'^de'^ti™s^
the school-room and workshop, and the register shall be inspected. A urer's nci-ount.
record shall be kept of these visits in the books of the superintendent. J^V ]I" jV'"'
Once in every three months the school in all its departments shall be issii, ir?, § 2.
thoroughly examined by a majority of the trustees, and a report thereof
made to the board on or before the fifteenth day of October in each
year. An abstract of these quarterly reports shall be prepared, which,
together with a full report ))y the superintendent, and a list of the
salaried officers and their salaries, and in a tabular form under the
heads specified in section eleven of chapter five, the value of the stock
and sup]ilies shall be laid before the governor and council for the
information of the legislature. The treasurer shall also submit at the
same time an accurate detailed account of the receijits and exjiendi-
tures for the year terminating on the last day of the preceding month.
Superintendent.
Sect. 8. The superintendent, with such subordinate officers as the siiperintendent,
trustees may appoint, shall have the charge an<l custody of the boys. |^""'o" ™'' '^"'
He shall be a constant resident at the institution, and shall disci]iline, is4r, i05, § lo.
govern, instruct, employ, and use his best endeavors to refonn, the in-
mates, in such manner as while preser\'ing their health will secure the
formation as far as possible of moral, religious, and industrious habits,
and regular thorough progress and improvement in their studies, trades,
and employments.
Sect. 9. He shall before entering upon his duties give a bond to the to have
commonwealth, with sureties satisfactory to the governor and council in el-'t'^f^'ive'"''^
the sum of two thousand dollars, conditioned that he shall faithfully bond.lccep
perform all his duties and account for all money received by him as i;^", i(i5,'§§il,
superintendent, which bond shall be filed in the office of the treasurer '•'•
of the commonwealth. He shall have charge of all the projierty of the
institution within the precincts thereof He shall keep in suitable books
complete accounts of all his receipts and expenditures, and of all jtrop-
,erty intrusted to him, showing the income and expenses of the institu-
tion ; and he shall account to the treasurer in such manner as the
trustees may require for all money received by him. His books and
all documents relating to the school shall at all times be open to the
inspection of the trustees, who shall at least once in every six months
420
NAUTICAL BRANCH OF STATE REFORM SCHOOL. [ChAP. 76.
Superintendent
to make con-
tracts, &c.
.Suits.
1847, 105, § 12.
carefully examine the books and aeeouuts and the vouchers and docu-
ments connected therewith and make a record thereof. He shall keep
a register, containing the name, age, and circumstances connected with
the early history of each boy, and shall add such tacts as come to his
knowledge relating to his history while at the institution, and after
leaving it.
Sect. 10. He shall in writing make all contracts on account of the
institution, with the approval of the trustees if their by-laws require it ;
and he or his successor may sue or be sued thereon to final judgment
and execution. No suit shall abate by reason of the office of superin-
tendent becoming vacant, but any successor in office may take u])on
himself the prosecution or defence thereof, and upon motion of the
adverse party and notice he shall be required so to do.
Treasurer,
pointmeat
bonil of.
1S47, llK), §
1S59, 2S5, §
See § 7.
ap-
and
Treasurer.
Sect. 11. There shall be a treasurer appointed by the governor and
council for three years, unless sooner removed for sufficient cause, who
shall before entering upon the discharge of his duties give a bond to the
commonwealth with sureties satisfactory to the governor and council in
the sum of three thousand dollars, conditioned that he shall faithfully
account for all money received by him as treasurer ; which bond shall
be filed in the office of the treasurer of the commonwealth.
Nautical
branch. Sepa-
rate officers, ijc.
1S59, USS, 2SI).
'J'rustecs, ap-
pointment and
t.'uurc or office
of.
1859, 285, § 1.
to be a corpo-
ration, &c.
1859, 285, § 2.
to have con-
trol of school-
ship, &c.
185'J, 285, § 3.
Superintendent,
to be master of
NAUTICAL BRANCH OF THE STATE EEFORM SCHOOL.
Sect. 12. The nautical branch of the state reform school shall be
vested in a board of five trustees ; it shall have separate officers ap-
pointed in like manner, with like powers and duties, and subject to like
obligations as simihir officers of said school; and the foregoing jirovis-
ioiis shall so far as applicable apply to said branch, except as is herein-
after otherwise ]irovided.
Sect. 13. The trustees now in office shall continue to hold their
offices according to the tenor of their commissions. The governor, with
the advice and consent of the council, shall annually appoint one trustee
for the term of three years from the first Wednesday in February,
and the Boston Board of Trade and the Boston Marine Society shall
each annually a]i))oint one trustee for the term of one year from said
date. Appointments to fill vacancies for unexpired terms shall be made
in the same manner as the original ap]iointinents. Any person who.se
term expires may be reappointed. The trustees shall receive no com-
pensation for their services, but shall be allowed all expenses incurred
by them in the discharge of their duties. They shall be removable only
for sufficient cause.
Sect. 14. The trustees shall be a corporation by the name of the
Trustees of the Nautical Branch of the State Reform School for the
purpose of taking and holding, to themselves and their successors, in
trust for the commonwealth, any grant or devise of lands, and any do-
nation and bequest of money or other personal property, made for the
use of said institution, and for the puqiose of preserving and investing
the proceeds thereof in good securities, with all powers necessary to
carry said purposes into effect.
Sect. 15. The trustees shall have the control of the school-ship and
other vessels procured for the institution, and shall cause the boys under
their charge to be instructed in navigation and the duties of seamen.
They may send any boy upon a voyage at sea, and in his behalf, enter
into any contract necessary therefor; and such action shall operate as a
discharge of the boy from the institution.
Sect. 16. The superintendent shall be master of the school-ship, and
Chap. 76.] state reform school — commitments. 421
may navigate the sliij) and any tender thereof, and transport the same school-ship,
into and ujjou any of the ports and waters of the commonwealth. isou, 2>5, §6.
COMMITMENTS.
Sect. 17. Wlien a boy under the age of sixteen years is brought by commitmentB
a constable, ]iolice officer, or other inhabitant of this state, before a judge procSiVs.
of the probate court, or superior court, upon conijihiint that he has com- is4r, kw, f4.
mitted an offence which may be punished by imprisonment other than {^'g, JJo, § i.
imprisonment for life, the judge shall issue a summons to the t:\ther of
the boy, if he is living and resident within the place where the boy was
found, and if not, then to his mother if she is living and so resident;
anil if there is no such father or mother, to tlie lawful guardian of said
bo}-, if any there is so resident, or if not, to the person witli whom,
according to his own statement and such testimony as shall be received,
he resides; and if there is no person with whom he statedly resides, the
judge may appoint some suitable j)erson to act in his behalf; requiring
him or her to appear at a time and j)lace stated in the summons, to show
cause, if any there is, why said boy shall not be committed to tlie state
reform school, or the nautical branch thereof. And the judge shall also
cause notice of the pendency of the complaint to be given to the mayor
of the city, or to one of the selectmen of the town, where the boy
resides.
Sect. 18. At the time mentioned in the summons, the judge shall s.ime subject,
proceed to examine the boy and any party ap]iearing in answer to the "^'J- ^U' § i-
summons, and to take such testimony in relation to the case as may be
produced. If the allegations are proved, and it ajipears that the boy is
a stiitable subject for said school, and that liis moral welfare r.nd the
good of society require that he should be sent thereto for instruction,
em])loyraent, or reformation, he shall commit the boy, if below the age
of fourteen years, to the state reform scliool or the nautical branch
thereof, as he deems best, and if above that age to the nautical branch
of said school, by a warrant in substance as follows: —
To (A E) one of the constables (or police officers) of the city (or town) of . Form of war
You are hereby commanded to take charge of C D, a boy under the age of si.\teen f*"*'
years, to wit, of the age of as near as can be ascertained, who at the time of
his arrest resided in and who has been proved to me to be a suitable subject
for the state reform school (nr the nautical branch of the state reform school) and
a proper object for its care, discipline, and instruction, and deliver said boy \\'ithout
delay to the superintendent of said school, or other person in charge thereof, at the
place where the same is established. And for so doing this shall be your sufficient
•warrant.
Dated this day of 18 , at , (in the county of in the
commonwealth of Massachusetts.)
But no variance from said fomi shall be deemed material if it suffi-
ciently appears upon the face thereof, that the boy is committed by the
judge in the exercise of the powers given to him by this chapter.
Sect. 19. The judge shall certify in the warrant the place in which Judfce to certify
the boy resided at the time of his arrest, and such certificate for the ^^^'^ence, age,
purposes of this chapter shall be conclusive e^-idence of his residence. is,5s, 2s.
He shall also state therein the age of the boy, as near as he can ascer- issil^ 2soI 1 1!
tain. Accomjianying the warrant, the judge shall transmit to the super-
intendent, by the officer serving it, a statement of the substance of the
complaint and testimony given in the case, together with such other
particulars concerning the boy as the judge is able to ascertain.
Sect. 20. The warrant shall be executed by a constable or police service of w.ir-
officer of the place where the case was heard. Any summons to appear J™-'' J^^ rg
before a judge as aforesaid shall be served by a constable or police issoj 'm, § t
officer, by delivering an attested copy of the same personally to the
party to whom it is addi-essed, or leaving it with some person of
36
422
STATE REFORM SCHOOL COMMITMENT, DISCHARGE. [ChAP. 76.
Duties of justice
before whom
boy is brought
for trial, &c.
185'J, aSC, § 1.
Second commit-
meut.
185'J, 286, § 1.
Unfit subjects
may be held for
trial iu superior
court.
18511, 286, § 3.
Appeal, &c.
1859, 286, §§ 2, 3.
Fees of judges,
&c.
1859, 286, § 2.
Courts may
sentence boys
to school, &c.
Notice before
sentence.
1S69, 170, §3.
1859, 286, §§ 1, 4.
suffick'ut age .it tlie place of residence or business of such party ; and
said constable or ])olice officer shall immediately make return to the
same judge of the time and manner of such service.
Sect. '21. When a boy under sixteen years of age is brought for trial
before a trial justice or police court, charged witli an ottence \Nhich may
be puni.shed bj' iinjirisonment other than imprisonment for life, and the
justice or court is of ojiinion, or any person makes affidavit, that if lound
guilty he would be a fit and proper subject for the state reform school
or the nautical branch thereof, a decree to that eflect shall be entered of
record, and thereupon such justice or court shall cause notice of the pro-
ceedings to be given to the mayor of the city or one of the selectmen of
the town wliere the boy resided at the time of his arrest, and shall by a
warrant cause the boy to be brought forthwith before the judge of the
probate court, or a judge of the superior court if within the county, and
transmit to him the comjilaint and warrant by virtue of whicli lie was
aiTested. The judge shall thereupon have the same jurisdiction and
powers as if the boy had been brought before him upon an original
complaint.
Sect. 22. If a boy jireviouslj- committed to the school is again
brought before any judge under the provisions of this cha] iter, the judge
may examine the case and issue his warrant for committing him to
either branch of the school Avithout issuing the summons required by
section seventeen.
Sect. 2.3. If the judge is of opinion that a boy brought before him
is guilty, and is not a fit subject for either branch of the school, he shall,
if the offence charged is one within the jurisdiction of police courts,
sentence him to such punishment as is provided by law for the offence ;
otherwise he shall bind him over to apjiear before the sujierior court for
the same county, as police courts may do in like cases.
Sect. 24. Any boy ordered to be connnitted to either liranch of the
school, or convicted and sentenced as aforesaid, may appeal to the supe-
rior court ; and the a]ipeal shall l)e had, entered, tried, and determined,
in like manner and subject to like provisions as aj^peals from justices of
the peace in criminal cases.
Sect. 25. The fees and compensation allowed to judges under this
chapter shall be the same as by law are allowed to justices of the peace;
and all officers serving process shall be allowed the same fees as they
are entitled to for ser\ing process in criminal proceedings.
Sect. 26. When a boy under the age of sixteen years is convicted
in the supreme judicial or sujierior court of any offence which may be
punished by imprisiinment other than imprisonment for life, the court
may sentence him, if below the age of fourteen years, to the state reform
school or the nautical branch thereof, as it deems best, and if above that
age to the nautical branch of said school, or in either case to such jnin-
ishment as is otherwise provided by law. Before passing such sentence
the court shall cause notice of the pendency of the case to be given to
the mayor of the city or one of the selectmen of the town where the
boy resided at the time of his arrest. The provisions of section nine-
teen shall apply to commitments under this section.
Term of com-
mitment,
nischarge, &c.
is4r, lCi5, §7.
IS59, 170, § 3.
1859, 28,5, §§.3,6
1459, 286, §4.
CONFmEJlEI^^T AXD DISCHARGE.
Sect. 27. Any boy ctimmitted to the state refonn school or the
nautical branch thereof shall be there kept, disciplined, iii.structed,
employed, and governed, under the direction of the trustees, until he
arrives at the age of twenty-one years, or is bound out, or discharged as
reformed, or otherwise legally discharged. The discharge of a boy as
reformed, or his iKnng sent on a voyage at sea, or arriving at the age of
twenty-one years, shall be a complete release from all penalties and dis-
abilities created by the sentence.
Chap. 77.] law of the road. 423
TRANSFEE OF IXMATES.
Sect. 28. By consent of the trustees of the state refoiin school and noy« m.iy bo
the nautical branch thereof, or by direction of the govei-nor, any boy 'iSuf-^rs's.*"'
may be transferred by the superintendent from one institution to the
other; but no boy who was an inmate of the school on the twenty-sLxth
day of November in the year eighteen hundred and fifty-nine shall be
transferred without his consent.
SUPPORT OF INMATES BY CITIES AND TOWNS.
Sect. 29. When a boy is committed to either of said institutions, Support by
the city or town wherein he resided at the time of his arrest shall nuar- t"""/: . V"'',''"
terly on the nrst days of January, April, July, and October, pay to the i&ou, -'su, § 6.
treasurer of the school fifty cents a week during the time he remains
therein. And any sum so paid may be recovered by such city or town
of any parent, kindred, or guardian liable by law to maintain him, or of
the city or town in which he has his lawful settlement.
CHAPTER 77.
OF THE LAW OF THE KOAD.
Sectios I Section
1. Persons meeting to tum to right. 4. Penalties. Complaints to be made withiQ
2. passing carriage going same way, to turn three months.
to left. 5. Horse railroads exempt.
3. Bells to be used with sleighs. j
Section 1. When persons meet each other on a bridge or road. Persons meet-
travelling with carriages, wagons, carts, sleds, sleighs, or other vehicles, [.°5|*" '"''° *"
each person shall seasonably drive his carriage or other vehicle to the Kfs.'si, §i.
right of the middle of the travelled part of such bridge or road, so that | S-ick'. 126.'
their respective carriages or other vehicles may pass each other without -^ ^'''^- 201.
. . „ ' ° •' ' S Met. ai.i.
interference. iijut. 4m.
Sect. 2. The driver of a earriawe or other vehicle passinsr a carriasre I'i J.'*^'; *\h:
t 1 • 1 II* • 1 T . 1 11 1 ■ ^ 11^^. it'Cusu. 495.
or Other vehicle travelling m the same direction shall drive to the left 2 Gray, isi.
of the middle of the travelled jiart of a bridge or road ; and if the bridge .Pf f**'"? "*•■-
or road is of sufficient width for the two vehicles to pass, the driver of "imc w"'yfto
the leading one shall not wilfully obstruct the same. *"™ '" ''-"' **•'
Sect. 3. No person shall travel on a bridge or road, with a sleigh or Be!i5 to be used
sled drawn by one or more horses, unless there are at least three beUs ^''g gf f 2°'
attached to some part of the harness.
Sect. 4. Whoever offends against the provisions of the preceding penalties,
sections shall for each offence forfeit a sum not exceeding twenty dol- C'omp'ainte to
lars, and be further liable to any party for all damages sustained by three months,
reason of such offence: jjrovided, that every complaint therefor shall be i^-S. 5i,§3.
made within three months after the offence is committed, and that every
action for damages shall be commenced within twelve months after the
cause of action has accrued.
Sect. 5. The pro'sisions of this chapter shall not apply to horse Horse raiiroaiis
raikoads. «^'-'"'"-
424.
TIMBER AFLOAT OK CAST 0\ SHORE. [ChAP. 78.
CHAPTER 78,
OF TIMBER AFLOAT OR CAST ON SHORE.
Sectton
1. Timber carried away by floods may be
taken by owners, &c.
2. Penalty for cutting out or altering marks
of owners.
3. on timber of unknown owners.
Section
4. Possession, &c., presumptive evidence of
guilt.
5. Provision regulating timber in Connecticut
River. Liability of owner.
6. Penalty for unlawful conversion of timber
in rivers, &c.
Timber carried
away by floods
may be'tjiken by
owners, &c.
K. S. 53, § 1.
ISil, 26.
Penalty for cut-
ting out or al-
tering marks of
owners.
E. S. 53, § 2.
1832, 313.
on timber of
unknown own-
ers.
E. S. 52, § 3.
Possession, &c.,
presumptive ev-
idence of guilt.
E. S. 53, § 4.
Provisions reg-
ulating timber
in Counectii'ut
Kiver. Liability
of owner.
E. S. 52, § 5.
■penalty for un-
lawful conver-
sion of timber
in rivers, &c.
1854, 339, § 1.
Section 1. Wlien any log, mast, spar, oi- other timber, is carried by
floods into lands adjoining any rivers, streams, or ponds, the owner of
such logs or otlier timber may at any time within six months remove
the same from said land on paying or tendering to the owner or occupant
thereof such reasonable damages as may be caused by such removal ;
and if the owner of such logs or other timber does not take the same
from such lands within said six montlis, or otherwise agree with the owner
or occupant of such lands, then such logs and other tiniber shall be
deemed the property of such owner or oceujjant.
Sect. 2. Whoever unlawfully cuts out, alters, or destroys, a mark of
the owner, made on any log or other tiniber put into a river, stream, or
pond, shall forfeit a sum not exceeding ten dollars for each log or other
piece of timber the mark of which he so alters, cuts out, or destroys ; and
shall be further liable in damages to the owner thereof for treble the
value of the same, to be recovered together with said forfeiture in an
action of tort.
Sect. 3. Whoever unla^vfully cuts out, alters, or desti-oys any marks
of such logs or other timber, the owner whereof is not known, shaU for-
feit a sum not exceeding ten dollars for every log or other ])iece of tim-
ber the mark whereof he so cuts out, alters, or destroys, to be recovered
to the use of any person suing for the same.
Sect. 4. In suits under the two preceding sections, if the logs or
otlier timber are found in the possession of the defendant, with the
marks cut out, altered, or destroyed, it shall be presum)itive evidence of
his guilt, and the burden of proof shall be upon him to discharge himself.
Sect. 5. No person shall cause or permit to be driven or floated
down Connecticut River, any masts, s])ars, logs, or other tiniber, unless
the same are formed and bound into rafts and placed under the care of
a sufficient number of persons to govern and manage the same so as to
prevent damage thereby. If damage is done to a bi-idge or dam upon
or over said river, by any timber so <lriven or floated in any manner not
herein allowed, the owner of the timber, and every person who causes or
permits the same to be so driven or floated, shall be jointly and severally
Uable for all such damage, to be recovered by the party injured in an
action of tort.
Sect. 6. Whoever unlawfully takes, carries aw.ay, or othei-wise con-
verts to his own use, without the consent of the owner, any log suitable
to be sawed or cut into boards, clajiboards, shingles, joists, or other tim-
ber, or any mast or spar, the ])rojierty of another, lying or being in a
river, pond, canal, lake, bay, stream, or inlet, within this state, shall for
every such log, mast, or spar, be ])uiiished by fine of not less than live
nor more than twenty dollars, or by confinement in the house of correc-
tion or jail not less than thirty days nor more than six months.
Chap. 79.]
LOST GOODS AND STRAY BEASTS.
CHAPTER 79.
OF LOST GOODS AKD STRAY BEASTS.
SECnos
1. Finder of lost money or goods to give no-
tice, &c.
2. When stray beasts are taken up, notice to
be given.
3. Strays taken up within ten miles of agricul-
tural hall in Brighton.
4. LoBt goods of value of $10 or more to be
appraised.
5. Conditional riglit of owner to receive his
goods or value thereof.
Sectios
6. Conditional right of finder, if no owner ap-
pears.
7. If owner of strays proves his right within
three months.
8. If such owner does not prove his right, &c.
9. If such owner appears within one year. If
no owner appears.
10. Penalty if finder neglects to give notice, &c.
11. for taking away strays without paying
charges.
Section 1. Whoever finds lost money or goods of the vahie of three Finder oriost
dollars or more, the owner whereof is unknown, shall within two days ""Ave notkef'
cause notice thereof to be posted up in two public places within the city *<=.
or town where the same was found, and shall also within seven days ' '
give notice thereof in writing to the city or town clerk, and pay him
twenty-five cents for making an entry thereof in a book to be kept for
that purjjose ; and if the money or goods be of the value of ten dollars
or more, the finder shall within one month after such finding cause the
same to be advertised in some newspaper or jiulilicly cried, if there is a
crier in the place, and notice thereof to be posted up in like manner in
two adjoining places.
Sect. 2. Whoever takes up a stray beast shall cause to be entered when stray
with the city or town clerk, in a book to be kept for the puqiose, a notice up'fiotlco 'to'be
thereof, containing a description of the color and natural and artificial S."'™-
marks of tlie lieast; and cause the same to be cried, and notifications '' ' '
thereof containing a like description of the beast to be posted up in the
manner provided in the preceding section ; otherwise he shall not be
entitled to compensation for any expenses which he may incur in relation
thereto.
Sect. 3. If such stray beasts are taken up within ten miles of the strays t.iUcn up
agricultural hall in Brighton, the finder within ten days thereafter shall, oVlgricuitiTral^
in addition to the notice before required, ])ost up a similar notice in hiiUmBrigu-
Brighton, at such ]3ublic place as shall ha\e been designated therefor by k. s.se, §.3.
the selectmen of that town ; and the finder shall be entitled to receive
therefor fifty cents, together with eight cents tor every mile travelled for
the purpose.
Sect. 4. Every finder of lost goods or stray beasts of the v.alue of i-ost goods of
ten dollars or more, shall also T^-ithin two months, and befi)re any use is more to be ap-"^
made of the same, iirocure from the citv or town clerk, or fiom a iustice V."'''!.*''-'.' ^ .
/. 1 1-1 * ,. . T 1 K. b. 00, §4.
ot the jieace, a warrant directed to two chsinterested jjersons, to be ap-
pointed by the clerk or justice, and returnable into said clerk's office in
seven days from the date, to appraise the same at their true value, upon
oath to be administered by the clerk or justice.
Sect. .5. If the owner of such money or good.s, other than stray conditional
beasts, appears within one year after such entry with the clerk, and ",^'Joeeive"ii'is'^
makes out his right thereto, he shall have restitution of the same or the goods or value
full value thereof ; he paying for entering the same, together with all u'.X's!;', § 5.
reasonable charges for keeping, notifying, crying, and ajipraising, as
aforesaid, and for necessary travel in the case ; which charges shall in
case of disagreement between the owner and finder be determined by
Bome justice of the peace.
Sect. 6. If no owner appears within one year, the lost money or
goods shall remain to the finder, he paying to the trea.surer of the city
or towu one-half of the value thereof according to said appraisement,
36* 54
of finder, if
no owuur ap-
pear.
It. S. 56, § 6.
426
UNCLAIMED PKOPERTY TRANSPORTED BY COMMON CARRIERS. [ChAP. 80.
If owner of
strays proves
bis rij^ht within
three months.
K. S. 56, §7.
If such owner
does not prove
his right, &c.
K. S. 50, § 8.
If h owner
.ippe, . in one
vejir.
If no owner ap-
pears.
K. S. 56, § 9.
Penalty, if find-
er neglects to
give notice, &c.
It. S. 56, § 10.
is:!9, 135.
for taking
away strays
without paying
charges.
K. S. 56, § 11.
(all lawful charges l)cing first ilLHlucted,) and upon his neglect or refusal
to ]iay the same, it shall be recovered by the city or town treasurer.
Sect. 7. If the owner of such stray beasts appears within three
months after such entry with the clerk, and makes out his right thereto,
he shall have restitution of the same upon paying the charges us pro-
vided in the ease of lost goods.
Sect. 8. If such owner does not appear and make out his title to
the beasts within said three months, the finder may sell them by public
auction, first giving notice of such sale at least four days before the
time of sale, in two public jilaces in the city or town where the beasts
were taken up ; and the money arising from the sale, after deducting
all lawful charges, shall be deposited in the city or town treasury.
Sect. 9. If such owner appears within one year after said entry and
makes out his title to the beasts, he shall, if they have not Ijeen sold,
have restitution of the same u]jon paying the charges arising thereon as
provided in tlie case of lost goods ; and if the beasts have been sold he
shall be entitled to receive the money so deposited in the treasury from
the proceeds of the sale. If no owner appears within said year, the
beasts, or the value or price thereof after deducting said charges, shall
remain one-half to the use of the finder and the other half to the use of
the town, in like maimer as is before provided with respect to lost money
or goods.
Sect. 10. The finder of lost goods, money, or stray beasts, who
neglects to cause the same to be entered and cried and notice thereof to
be posted up as before directed, shall forfeit the value of such goods,
money, or beasts, unless he delivers the same or otherwise accounts
therefor to the owner thereof, in which case he shall forfeit a sum not
exceeding twenty dollars.
Sect. 11. Whoever takes away a beast taken up as a stray without
paying all lawful charges incurred in relation to the same, shall forfeit
to the finder the value thereoli to be recovered in an action of tort.
CHAPTER 80.
OF UNCLAIMED PROPERTY TRANSPORTED BY COMMON CARRIERS.
Sectiox
1. Railroads and proprietors of steamboats to
publish lists of uudjiimed effects of passen-
gers.
2. Advertised articles unclaimed, to be exam-
ined by mayor, &c., and ordered sold, &c.
Section
3. Proceeds of sale over expenses, to be paid
into state treasury
4. Penalty for neglect to advertise, &c.
5. Perishable articles transported by common
carriers may be sold.
Railroads and
proprietors of
steanihorits to
publisJi lists of
uuchiimed ef-
fects of passen-
gers.
1851, 147, § 1.
Advertised arti-
cles unclaimed
to be examined
by mayor, &c.,
Section 1. Every railroad coiporation and the proprietors of every
steamboat engaged in the transjiortation of passengers, shall on the
first Monday of January and July in each year, publish in one newspa-
per at least in every county of this state in which such railroad coqiora-
tion or steamboat ])ro]»rietors have a passenger station or office, a
descriptive list of all trunks, car])et bags, valises, parcels, and ]):isscn-
gers' eifects, left and then remaining unclaimed at any passenger st.ition
or office, or in the possession of such coiporation or proprietors, or their
agents, and the list shall indicate all such specific marks as may serve to
identify the same.
Sect. 2. If at the expiration of six months after such advertisement
an}' of the articles so advertised still remain unclaimed, the railroad
corporation or steamboat proprietors in whose possession they are shall
Chap. 81.] wrecks and shipwrecked goods.
427
give notice to tlie mayor and aldcnncn or selectmen of the city or town anii onii^rod
in which the articles may be; and said mayor and aldermen or select- issiJh?', §2.
men shall cause the articles to be examined, and may order them to be
sold at public auction upon notice given of the time and place of sale by
]niblishing as aforesaid, or may order any of them to be again advertised
and to remain another six months before being sold.
Sect. 3. The proceeds of all articles thus sold, after deducting costs Procfciisofraio
of storage, advertising, and other exjjenses due to such railroad corpora- ",1 'i,"3y"into
tion or steamboat jjroprietors, and the costs of said examination and state treasury,
sale, shall be paid over to the treasurer of the commonwealth for the ■^^'''^''SS-
use of the same.
Sect. 4. If any railroad coiijoration or steamboat pro]nuetors neglect Penalty for ucg-
or omit so to advertise and cause to be examined any such ertects, the
corporation or jn'oprietors shall be liable for all damages on
thereof, to be recovered by the j;erson injured, in an action of tort ; and
shall also forfeit one hundred dollars for each case of neglect or omission.
Sect. 5. When a common carrier has transported projierty consist- Perisiiabie arti-
ing of fresh meats, fresh fish, shell fish, fruit, or vegetables, to their i,y cmmium'(Mr-
place of destination, and has notified the owner or consignee of the rierBmaybe
arrival of the same, and the owner or consignee after such notice has isDr,237.
refused or omitted to receive and take away the same and ]iay the
fi'eight and proper charges thereon, said carrier may, in the exercise of a
reasonable discretion, sell the same at jiublic or private sale without
advertising, and the jiroceeds after deducting the amount of said freight
and charges, and expenses of sale, shall be paid to the owner or con-
signee : provided, that if the owner or consignee cannot be found on
reasonable inquiry, the sale may be made without such notice.
left to adver-
tise, Jka.
account iS'N ^^'Ai-
\hi-i, 312.
CHAPTER 81,
OF 'WRECKS AND SHIPWRECKED GOODS.
Section
1. CommiBsioners of wrecks ; appointment ;
removal ; bon'd ; remedy on bond,
duty of, on hearing of wreck, Ac.
may employ assistants, &c. ; penalty for
disobeyinfi: order of.
shall tjike an inventory of property, &c.
Arbitration between commissioner and
ovraar.
. If not ag:reed to, case to be decided at law.
, No person held to pay for services rendered
except to coramissioners, unless, &c. Ap-
peal from commissioner; power of court.
2.
3.
4.
5.
Section
8. Pemilty for intermeddling: with wrecked
property,
9. Commissioners to advertise wrecked prop-
erty.
may dispose of enough to pay duties,
&e.
may sell perishable property.
to return inventory to treasurer if owner
does not appear within one year.
compensation of.
liability of, for neglecting to account,
&c.
10.
II.
13.
14.
Section 1. The governor, with the advice and consent of the coun- Commissioners
oil, may a]ipoint in any county one or more commissioners of wrecks ".iintmcnV; re-
and shi])wrecked goods, who shall be remov.able at pleasure. Each of '"'"'.ai ■, bond ,
said commissioners shall be sworn and shall give bond to tlie judge of boml! ^ °°
the jirobate court for the county in which he resides, witli sufficient •'• ''■ ^'< § ^•
sureties to the acceptance of said judge, for the faithful discharge of
his duty. Every person having a claim against such commissioner for
a breach or neglect of his oflicial duty, may have a remedy therefor by
a suit on his bond, to be jirosecuted in the name of the judge of the
probate court in like manner as on official bonds given by adminis-
trators of the estates of deceased persons.
428
WRECKS AND SHIPWRECKED GOODS.
[Chap. 81.
Commission-
ers, duty of ou
hcarin*^ of
wreck, &c.
It. S. 57, § 2.
may employ
assistants, &c.
penalty for
disobeying" or-
der of.
E. S. 57, § 3.
1852, 312.
shall take an
inventory of
property, &e.
K. b. 57, § t.
Arbitr.ltion be-
tween eoramis-
siouer and
owner.
R. S. 57, § 3.
if not aj^reed
to, ruse to he
deeiitt'd at law.
E. a. 57, § 0.
No person held
to i)ay for ser-
vices rendered
except to com-
missioners, un-
less, &c.
Ajipeal from
comniissiouer ;
power of court.
E. S. 57, § 7.
1859, I'JD.
Penalty for in-
termcddliu^r
\vith wrecked
property.
E. S. 37, § 8.
1852, 312.
Commissioners
to advertise
wrecked prop-
erty,
R. S. 57, § 9.
1852, 312.
Sect. 2. Every commissioner, on receiving information of a ship-
wreck, or of tlie finding of any slii])wreelved goods or property of any
kind to the amount of one hundred dolhirs or more, on any of the
sliores or watens witliin hi.s county, or that may he brought within said
county, sliall immediately repair to the ])lace wliere tlie pro]ierty may
be, and if tlie same is not in the custody of an owner or agent, shall
take charge thereof and jireserve and secure the same for the owner.
Sect. 3. The commissioner in such case may employ as many per-
sons as he deems necessary to assist in ])reserving the property, may
appoint guards to secure the same, and suppress all tumults and dis-
orders. Whoever disobeys a lawful order of the commissioner shall
forfeit for every such oftence a sum not e-\'ceeding ten dollars, to be
recovered in an action of tort in the name of the commissioner, to the
use of the city or town.
Sect. 4. The commissioner shall on every such occasion take an
inventory of all the jiroperty that comes to his possession ; and when
recpiired by the owner thereof or his agent, or by any insurance com-
pany, or underwriter, or other person interested therein, shall make
oath to the truth of such inventory, and deliver a copy thereof if re-
quired, together with all said property, to the owner, agent, or other
jierson lawfully authorized to receive it : provided^ that there shall be
first ])aid, or secured to be paid, to the commissioner a reasonable com-
pensation for his services and exjienses, and such custom house duties
and other charges as he has paid or become liable to pay ujion or for
the proi)erty in question.
Sect. 5. If the commissioner and other paity do not agree on the
sum so due to the commissioner, the case ma}' be submitted to arbi-
trators in the manner provided in chii|>ter tme huii<lred and forty-
seven ; and all the jiroceedings therein shall be conducted as provided
in that chapter.
Sect. 6. If the jiarties do not agree to submit the case to arbi-
trators, it may be decided in an action at common law ; to be com-
menced and prosecuted as the circumstances may require, unless the
same is a matter within the exclusive jujisdiction of the courts of the
United States.
Sect. 7. No owner or other jierson interested in such property
shall be hold to jiay to any jjerson, other than one of said commis-
sioners, any charge for services or expenses in taking or securing the
same, unless for jiroperty taken or secured before the arrival of a com-
missioner ; in which case, the commissioner shall, upon hearing all
]i.arties intereste<l, determine the eomjiensation to be received as afore-
said, and from his award in writing there shall be no appeal, unless the
whole sum so demanded exceeds fifty dollars, in which case an ajipeal
shall lie to the superior court, by either party aggrieved by the doings
of the commissioner ; and the court shall in a summary manner hear
and determine the case, and may issue all processes necessary or proper
to carry into eftect their decrees and orders therein.
Sect. 8. Whoever, after the arrival of the commissioner, takes,
detains, or intermeddles with any property shijiwrecked or found as
aforesaid, except under the directions of the commissioner, or of the
owner, agent, or other person interested, shall forfeit a sum not exceed-
ing one thousand dollars for each offence, to be recovered in an action
of tort by the commissioner, owner, agent, or other person interested,
to his own use.
Sect. 9. The commissioner, as soon as may be after his arrival at
the place where any wreck or goods are found, shall publish the par-
ticulars of the shipwreck and goods, with such other material facts as
he ascertains, in order th.at knowledge thereof may be given as soon as
jjossible to the owner, agent, or persons interested ; and if he neglects
Chap. 82.] preservation op birds axd animals.
429
m;iy dispose of
cin^'uyli to pay
ihilii's, &c.
1{. S. 57, § 10.
may sell per-
ishable prop-
erty.
K. S. 57, § 11.
to return in-
so to do, he shall forfeit fifty dollars, to be recovered in an action of
tort b}^ the owner, agent, or other person interested, to his own use.
Sect. 10. He may, within thirty daj's after taking the same into rommissioners
his custody, disjiose of so much of the property by public auction as
shall be sufficient to pay all duties which he has paid thereon or for
which he has become hable to the custom house.
Sect. 11. When such property is of a perishable nature and may
be much reduced in value by keejjing for one year, and no owner,
agent, or other person interested therein, appears to claim the same
within sixty days after it is taken into the custody of the commissioner,
he shall advertise it in the public newspapers and sell it by auction to
the best advantage.
Sect. 12. If no owner, agent, or other person interested in such
projierty, appears within one year after it has been taken into the trealurcrU'
custody of the commissioner, and establishes his claim thereto, the owi'r does not
• • u n i i ii 1 r ^\ 11 appear withm
comnussioner shall present to the treasurer oi the commonwealth an one year,
inventory of the property, or, if sold, an account of the sales, with an k. .s. 57, §12.
account of aU moneys paid bj' him for duties thereon and for the
expenses of securing and preserving it ; and he shall make oath to the
truth of such inventory and accounts, ami shall ]iay and deliver to the
treasurer the balance of .such accounts, with all tlie jiroperty remaining
in his hands, for the use of the commonwealth.
Sect. 13. The treasurer may make the coniiuissioner such com- compensation
pensation for services and expenses as shall be just; to be ascertained, it.' s. 57, §13.
in case of disagreement between them, in the manner bei'ore ]irovided
for the adjustment of the like question between the commissioner and
the owner of property.
Sect. 14. If a commissioner, for the space of sixty days after the liability of, for
expiration of the year herein before limited for his accounting with the ScfoimV.^Ic."
treasurer, neglects to present the inventory and accounts before men- K- s. 57, § 11.
tioned, and to pay and deliver the balance due thereon, together with
all the property remaining in his hands, the treasurer shall cause a suit
to be commenced therefor for the use of the commonwealth, and shall
prosecute the same to final judgment and execution.
CHAPTER 82.
OF THE PRESERVATION OF CERTAIN BIRDS AND ANIMALS.
Sectiox
1. Penalty for taking, killiug, or having in
pOHsesflion, certain birds at certain seasons.
2. for taking such birds by traps, &zc.
3. Seleetmeu, &c., to enforce provisions.
4. Penalty for shooting birds on lands of
others without license.
5. for killing birds on salt marshes, except,
&e.
6. Penalty for taking, selling or buying
grouse. &c.,
Sectiox
7. Penalty for killing grouse, *S:c., except by
owner, &c., of laud.
8. Search warrant. Proceedings.
9. Penalties may be suspended.
10. Penalty for kiUiug plover, &c., between cer-
tain times ;
11. or with unusual implements, &c.
12. for hunting deer within certain times.
13. with dogs in I*lymouth or Barnstable.
Section 1. Whoever between the first day of March and the first Penalty for tak-
day of September takes, kills, or destroys, any of the birds called par- h^a^'i,^. iu|os^
tridges or quails; or between the first day of March and the fourth day sessio"i, certain
of July takes, kills, or destroys, any of the birds called woodcock; or at eeaKona.*'^'^
any season of the year takes, kills, or destroys, any of the birds called ^*'^'*' ^^^' § ^•
robins, thrushes, linnets, sparrows, bluebirds, bobolinks, yellow-birds,
430
PRESERVATION OF BIRDS AND ANIMALS. [ChaP. 82.
Penalty for
takinjj certain
birds by traps,
&c.
1850, 197, § 2.
Selectmen, &c.,
to enforce pro-
visions.
lSo5, liir, § :!.
Penalty for
sbootiug birds
on lands of oth-
ers without, &c.
E. S. 53, § ■■>.
1852, 312.
for killing
birds on s;iTt
marshes, ex-
cept, &c.
K. S. 5.1, § X
1819 15S, § 3.
for killing-,
&c., grouse.
18.3'.!, 1.35.
1814, 15(i, § 1.
except by
owner, ifcc, of
land.
1814, 15(j, § 2.
Search warrant.
Proceediiij^^s.
18H, 15il, § 3.
Penalties may
be .sus])('nded.
I!. .S. .53, § 1.
1844, ISr., §4-
ISuj, lu;, §0.
Penalty for kill-
iiii; ))lover, &c.,
within certtliu
times.
E. S. 53, §5.
18.39, 1.35.
1849, 158, § 4.
or with unu-
sual imple-
ments, &c.
E. S. 53, § 6.
for hunting
deer within
certain times.
E. S. 53, §7.
with dogs in
Plvmoutli, &c.
B-S. 53, § 8.
■woodpeckers, or warblers ; or within the respective times aforesaid sells,
buys, or has in his possession, any of said birds taken or killed in this
state or elsewhere, shall forfeit for every such ]iartridge, quail, or wood-
cock, five dollars, and for every other of said birds, two dollars.
Sect. 2. Whoever at any season of the year takes, kills, or destroys,
by means of traps or snares, any of the birds mentioned in the preceding
section, except jiartridges, shall forfeit for every such bird so taken, killeil,
or destroyed, five dollars.
Sect. 3. Tlie mayor and aldermen and selectmen of the several cities
and towns shall cause the provisions of the preceding sections to be en-
forced in their resjjective places.
Sect. 4. Whoever between the first day of Jlarch and the fomth
day of July slioots at or kills any birds ujion lands not owned or occu-
pied by himself, and without license from the owner or occupant thereof,
shall forfeit to the owner or occupant ten dollars, in addition to the
actual damages sustained, to be recovered in an action of tort.
Sect. 5. Whoever between the first day of March and the first day
of July takes or kills any birds on any salt marshes, or sells any birds so
taken or killed, sliall forfeit two dollars for every offence: i^i'ochM^ that
nothing contained in this section shall prevent the owner or occixpant
of such lands from taking or killing birds on the land so owned or held
by him.
Sect. 6. Whoever within this state takes, kills, or destroys, any of
the birds called grouse or heath hens, or sells, buys, or has in his posses-
sion, any of said birds so killed or taken, shall forfeit for eveiy such bird
twenty dollars.
Sect. 7. Whoever kills any grouse or heath hen as aforesaid, upon
lands not owned or occupied by himself, and without license from the
owner or occiqtant thereof, shall for each Ijird so killed forfeit to such
occupant or owner ten dollars, in addition to the actual damage sus-
tained, to be recovered in an action of tort.
Sect. 8. When a person is suspected of having in his possession
grouse or heath hen taken or killed contrary to the provisions of this
chajiter, a justice of the peace, or police court, on complaint on oath be-
fore him, may issue his warrant directed to the ]iroper officer to search
for the same, and the same proceedings may be had as are provided in
chapter one hundred and seventy relating to searches and seizures.
Sect. 9. The provisions of the preceding sections shall not extend
to any city in which the city council, nor to any town in which the in-
haViitants at their annual meeting, in any year vote to suspend the opera-
tion thereof, in whole or in part, and for such term of time not exceeding
one year as they deem expedient.
Sect. 10. Whoever between the hour of sunset and one hour before
the sun's rising, on any day between tlie twentieth day of April and the
first day of July, takes, confines, kills, or destroys, any of the birds called
plover, curlew, dough bird, or chicken bird, shall for every such bird so
taken, confined, killed, or destroj-ed, forfeit one dollar.
Sect. 11. Whoever at any time kills or destroys any of the birds
mentioned in the ])reeeding section, by the use of any other means or
implements than such as are usually employed in fowling or killing wild
game, shall for every such offence be liable to the penalty mentioned in
said section.
Sect. VI. Whoever between the first day of January and the first
day of August kills or hunts any deer, except his own tame deer or
deer kejjt in his ])ark or on his own land, shall for every such offence
forfeit twenty dollars.
Sect. 1.3. Whoever at any time of the year hunts, chases, or kills,
with hounds or dogs, any deer within the counties of Plymouth or
Barnstable, shall for every such offence forfeit twenty dollars.
Chap. 83.] fisheries — lobsters, tautog, &c.
431
CHAPTEE 83.
OF FISHERIES, KELP AND SEAWEED.
fisheries.
Section
1. Penalty for poisoning fish with Indian
cockle, &c.
2. for unlawfully catching pickerel and
trout.
3. Prosecutions limited.
LOBSTERS, TAUTOG, BASS, &C.
4. Penalty for unlawfully taking lobsters, &c.,
in Fairhaven, &c.
5. Boundaries of shores, &c.,in preceding sec-
tion.
6. Lobsters, &c., within certain towns, not to
be carried off by inhabitants of other states,
nor by persons of this state in vessels of
over 15 tons ; penalty.
7. Lobster fishery on shores, &c., of Province-
toivn.
8. Penalty.
9. Waters and shores of Provincetown de-
fined.
Section
10. Penalty for taking lobsters, &c., in Sand-
wich and Wareham, between Marcli and
July.
OYSTERS AND OTHER SHELL FISH.
11. Penalty for unlawfully taking oysters, &c.
12. Selcotnion, &c., may give permits.
13. Penalty for taking, &c., any other shell fish
in certain towns.
14. When vessels with oysters, &c., on board
may be seized.
15. Prohibitions not to extend to Iudi.ans, &c.
10. Selectmen, &c., may graut licenses to plant
oysters, &c.
17. License to describe flats, be recorded, &c.
18. Kights of persons licensed. Penalties for
trcspaf^sing.
10. No sliell fish e.Kcept clams, &c.,to be taken
in Chatham, &c.
KELP AND SEAWEED.
20. Kelp, &c., adrift, may be taken away.
FISHERIES.
Section 1. TVlioever puts or throws into any w.aters within tJiis
state, for the purpose of taking or destroying fish therein, any of tlie
cocculus in.dicu.% otherwise called Indian berry or Indian cockle, or any
other poisonous .substance, whether the same is niLxcd with any other
substance or not, shall forfeit ten dollars for every such offence.
Sect. 2. Whoever takes or catches any pickerel or trout in any riv-
er.s, streams, or ponds, in any other manner than by hooks and lines, or
takes or catches any pickerel, from tlie first day of December to the first
day of May, shall forfeit one dollar for every pickerel or trout so taken,
and if he is a minor, his guardian shall be liable to said fijHeiture ; but
this section shall not extend to any town unless adopted thereby, nor
shall it affect the statutes specially relating to the district of Marshjiec.
Sect. 3. All ]irosecutions under the preceding section shall be insti-
tuted within thirty days from the tune of committing the offence.
Penalty for poi-
soning fish with
Indian cockle,
&c.
K. S.55, §1.
for unlawful-
ly catching
pickerel and
tront.
H. S. 55, §3.
ISjr, 311.
IMS, W.
l(<5a, 106.
Prosecutions
limited.
K. S.55, §4.
LOBSTERS, TAUTOG, BASS, &0.
Sect. 4. No person living without this state shall take any lobsters,
tautog, bass, or other fish, within the harbors, streams, or waters, of the
towns of Fairhaven, New Bedford, Dartmouth, and Westport, for the
purpose of carrying them thence in vessels or smacks of any size what-
ever owned without this state, nor in any of more than fifteen tons' bur-
den owned within this state, under a jienalty of ten dollars for every
offence, and a forfeiture of all fish and lobsters so tpken.
Sect. 5. For the purposes of the preceding section, the waters and
shores of the towns therein mentioned shall be deemed to extend from
the line of the state of Rhode Island to the line of the county of Pl^-m-
outh, and to include all the waters, islands, and rocks, lying within one
mile of the main land.
Sect. 6. If, within the harbors, streams, or waters, of any ]ilace on
the sea-coast in this state which has adojited chapter eighty-five of the
statutes of the year eighteen hundred and thirty-nine, according to the
provisions of that act, or which shall have adopted this section, any
person living without the state takes, for the purpose of carrying thence,
lalty I
■lully
lawlully taking
lobsters, &c., in
Fairhaven, &c.
K. S. 56, §5.
Boundaries of
shores, &c., in
preceding sec-
tion.
R. S.55, §6.
Lobsters, &c.,
in certain towns
not to lie car-
ried oft' by in-
liabitants of
other states,
nor by pcrBonB
432
FISHERIES OYSTERS AND OTHER SHELL FISH. [CilAP. 83.
of this state iu
vessels of over
15 tous.
1S3U, 86.
Lobster fishery
on shores, &c.,
of Pro\ance-
town.
K. S. 55, §7.
Penalty.
E. S. 55, § 8.
■Waters and
shores of Prov-
inceto^vTi, de-
fined.
E. S. 55, §9.
Penalty for tak-
ia^ lobsters,
Ac, iu .Saiul-
iNieh and Ware-
ham bet\veeu
March and
July.
185a, 176, §§ 2,
3,4.
any lobsters, tautog, bass, blue fish, or scuppaiig, or if .iny person living
within this state takes and carries away from sueh jjlaee any such fish
or lobsters in vessels or smacks of more than fifteen tons' burden, he
shall forfeit for each oflence a sum not exceeding twenty dollars and all
the fish and lobsters so taken.
Sect. 7. No person shall take lobsters within the waters and shores
of the town of Provincetown, for the purpose of carrying them from said
waters in any vessel or smack of more than fifteen tons' Inirden, or for
the pur]iose of ]>utting the same on board of such vessel or smack to be
transported to any place, unless a permit is first obtained therefor from
the selectmen of said town, who may grant the same for sueh sum to
be paid to the use of the town as they shall deem proper.
Sect. 8. Whoever otlends against the provisions of the preceding
section shall for each offence forfeit ten dollars ; and if the number of
lobsters so unlawfully taken or found on board of any such vessel or
smack exceeds one hundred, he shall in addition to said jienalty forfeit
a further sum of ten dollars for every hundred lobsters so taken or
found, and in that projiortion for any number over the first hundred.
Sect. 9. For the purposes of the two preceding sections the waters
and shores of Provincetown sliall be deemed to be as follows, viz.: be-
ginning at Race Point, one-half mile from the shore, bj- said shore to
the end of Long Point which forms the harbor of Provincetown, and
from the end of Long Point one-half mile and including the harbor
within the town of Provincetown.
Sect. 10. Whoever, between the first day of April and the first day
of July inclusive, takes more than one hundred pounds per week of lob-
sters, t;iutog, bass, or scu]ipaug, in the bays, harbors, ponds, rivers, or
creeks, of the waters of Buzzard's Bay, within one mile from the shore
and witliin the jurisdiction of the towns of Sandwich and Wareham,
shall forfeit a sum not exceeding fifty dollars, to be recovered in an
action of tort by the selectmen or any legal voter of the towns of Sand-
wich or Wareham, to the use of the party suing therefor.
Penalty for un-
lawfully tukiug
oysters, «&c.
K. S. 55, § 11.
Selectmen, &c.;
may give per-
mits.
K. S. 55, § 12.
7 Met. -HO.
Penalty for tak-
ing, Ac, any
other shell fish.
K. S. 55, § i:i.
1858, 110, 113.
1839, S4.
1840, 9.
1812, 10.
1846, 127.
1852, 53.
7 Met. 446.
When vessels,
with oysters.
OYSTERS AND OTHEE SHELL FISH.
Sect. IL Whoever takes oysters from their beds, or destroys them,
or wilfully obstructs their growth therein, in any part of this state, ex-
cept as is j)rovided in the following sections, shall forfeit for every bushel
of oysters (including the shells) so taken or destroyed the sum of two
dollars.
Sect. 1'2. The mayor and aldermen or selectmen of any city or town
in which there are oyster beds may give permits in writing to any per-
son to take oysters from their beds at sueh times, in such quantities,
and for sueh uses, as they shall express in their permits ; and every in-
habitant of such city or town may, without such iiermit, take oysters
from the beds therein for the use of his family, fi-om the first day of
September to the first day of June annually.
Sect. 13. Whoever takes any other .shell fish fi-om their beds, or
destroys them, or wilfully obstructs their growth therein, in any city or
town, except as is hereinafter provided, shall forfeit for every bushel of
sueh other shell fish (including the shells) one dollar. But the mayor
and aldermen or selectmen of each of said places may at all times give
]iermits in writing to any person to take such other shell fish from their
be<ls therein, at such times, in such quantities, and for such uses, as they
shall exjiress in their permit; and every inhabitant of each of said places
may, without such jiennit, take such other shell fish from the beds
therein, for the use of his family.
Sect. 14. If a vessel, boat, or craft is found within the limits of any
place, and not owned tlierem, with oysters on board taken iu such place
Chap. 83.] fisheries, kelp and seaweed. 433
witliout such poriuit, or a license granted as licreiiiafter provided ; or Ac, on board,
within tlie limits of ;iiiy place, and not owned therein, with other shell k"«.5!j,Th. '
fish on board taken in such place without a permit ; any inhabitant of is^>*> ^^-■
the place wherein the vessel, boat, or craft is so found tresjiassing, may
seize and detain the same not exceeding forty-eight hours, in order that
it may in that time be attached or arrested by due jjrocess of law to
satisfy said fines and forfeitures with costs : provided, that if before the
prosecution is instituted the owner or master of the vessel, boat, or craft
pays such forfeiture to the treasurer of the city or town in which the
same is incurred, the vessel, boat, or craft, with the eflects therein, shall
be discharged.
Sect. 15. Nothing contained in the four ]ireceding sections shall be Prohibitions
construed to deprive native Indians of the privilege of digging shell fish i,°fi,*„''n8^&".'' *°
for their ovm consumption, or to prevent any fisherman from taking any K- S. 53, § 16.
quantity of shell fish which he may want for bait, not exceeding at any
one time seven bushels including their shells.
Sect. 16. Tiie mayor and aldermen or selectmen of any city or town Scioctnion,&c.,
may, by writing under their hands, grant a license for a term not ex- ei-i'iBJa't'opiLt
ceedinsr twenty years to any inhabitant thereof to plant, crow, and dig ovsuts, &c.
oysters, at all times of the year, upon and in any flats and creeks therein, '' '^ ^ ' '
at any place where there is no natural oyster bed; not, however, imjiair-
ing the private rights of any person, nor materially obstructing the
navigaljle waters of any creek or bay.
Sect. 17. Such license shall desciibe by metes and bounds the flats License to div
and creeks so a|)propriated, and sh;dl be recorded by the city or town n.",'rdc<",'&e'!'^
clerk before it shall have any force; and the person licensed shall pay i»Jn i-w, §§ a, 5.
to the mayor and aldermen or selectmen, for their use, two dollars, and
to the clerk fifty cents.
Sect. 18. The person so licensed, his heirs and assigns, shall for the Hisiitsofpcr-
purjioses aforesaid have the exclusive use of the flats and creeks de- iv,'i",i'th™rur
scribed in the license, during the time therein specified ; and may in an tn K]i!is«iujj.
action of tort recover treble damages of any person who, without his or m>.', iw, §.3.
their consent, digs or takes oysters from such flats or creeks during the
continuance of the license ; and whoever digs or takes oysters there-
from without such consent shall also forfeit twenty dollars for each
offence.
Sect. 19. No person shall take from the towns of Chatham or Nan- No niioii Ash
tucket, or from the south shore of the town of Barnstable and district l^^'o betaken
of Marshpee, any shell fish for bait or other use, except clams and a iiiCbatham,.SDc.
shell fish commonly known by the name of horsefeet ; and no quantity is5o,'(?,''§2.'^'
exceeding seven bushels of clams including the shells, or one hundred imb, au, §2.
horsefeet, shall be taken in one week for each vessel or craft, nor in any
case without a permit being first obtained from the selectmen of the
town.
KELP AND SEAWEED.
Sect. 20. Any person may take and carry away kelp or other sea- Kelp, &.c.,
weed between high and low-water mark, \\'hilst the same is actually ['''."^['..'""J '"^
,.....,'-, , ,1 taken au ay.
adrift in tidewaters; but for such purpose no person shall enter on ibou, 2ir.
upland or on lawfully enclosed flats without the consent of the owner
or lawful occupant thereof The provisions of this section shall not
apply to any city or town in which the subject matter is regulated by
special act of the legislatm-e.
37 55
434
OBSERVANCE OP THE LORD S DAY.
[Chap. 84.
CHAPTER 84.
OF THE OBSEEVANCE OF THE LORD'S DAY
Section
1. Prohibition of labor, &c., except works of
necessity and charity.
2. of travclliii;^, cxci'pt, &c,
3. Persons keei)iii^^ jilaccs of entertainment,
&e., not to entertain any otlier tlian travel-
lers, &c.
4. Prohibitions as to Saturday and Sunday
eveuinj,r8, &c.
5. Innholders not to entertain persons on
Saturday or Sunday evenings, except, &c.
Section
6. Writs, &c., not to be served on Lord's day.
7. Penalty for rude behavior in churches.
8. Sheriffs, &c., to inform of offences.
9. Provisions for persons who observe Satur-
day as the Sabbath.
10. Prosecutions when to be instituted.
11. Penalty on innholders, &c., who permit to
be used implements of gaming on Lord's
day, &c.
12. " Lord's day," what it includes.
Prohibition of
labor, &c.
It. S. 51), ^ 1.
l:! Mass. ■■iH.
12 Met. 24.
l:t Met. 284.
2 Cush. odii.
4 Cush. 243.
10 Cush. 25r.
7 Gray, 1114.
of traveliiag.
E. S. .'id, § 2.
0 Mass. 71).
l.i Mass. 324.
10 Met. 3113.
4 Cush. 322.
Persons keep-
ing places of
entertainment,
&c., not to en-
tertain any
other than trav-
ellers, &c.
K. S. 50, § 3.
1844, KiO, :) 1.
2 Pick. 13U.
Prohibitions as
to Saturclay
and Sunday
evenings, &c.
ItWS, 151.
Innholders not
to entertain
persons on Sat-
urday or Sun-
day evenings,
except, &c.
K. S. 50, § (i.
Writs, A'c, not
to lie served on
Lord's day.
K. S. 50, § 7.
Penalty for
rude behavior
in churches.
K. S. ,50, § 8.
.Sheriffs, Sec,
to iulbrm of
offences.
K. S. 50, § 0.
Section 1. Whoever keeps open his shop, warehouse, or workhouse,
or does any manner of labor, business, or work, e.vcept works of neces.sity
and charity, or is ])resent at any dancing or jniblic di\crsion, show, or
entertainment, or takes part in any sport, game, or play, on the Lord's
day, shall be punished by a fine not exceeding ten dollars for every
offence.
Sect. 2. Whoever travels on the Lord's day, except from necessity
or charity, shall be punished by tine not exceeding ten dollars for every
oflfence.
Sect. 3. Whoever keeping a house, shop, cellar, or place of public
entertainment, or refreshment, entertains therein on the Lord's day any
persons not being travellers, strangers, or lodgers, or suffers such persons
on said day to abide or remain therein, or in the yards, orchards, or
fields, apiiertaining to the same, drinking, or spending their time idly or
at play, or in doing any secular business, shall be ]iunished by fine not
exceeding five dollars for each person so entertained or suffered so to
abide and remain ; and upon any conviction after the first, by fine not
exceeding ten dollars ; and if convicted three times, he shall thereafter
be incapal)le of holding a license ; and every person so abiding or drink-
ing .shall be punished by fine not exceeding five dollars.
Sect. 4. Whoever is present at a game, sport, play, or public diver-
sion, except a concert of sacred music, upon the e\'eiiing of the Lord's
day, or upon the evening next preceding the Lord's day, unless such
game, sport, play, or public diversion, is licensed by the persons or board
authorized by law to grant licenses in such cases, shall be punished by
fine not exceeding five dollars for each offence.
Sect. 5. No person licensed to keep a place of public entertainment
sh.all entertain or suffer to remain or be in his house, yard, or other places
appurtenant, any persons, not being tra\'ellers, stnuigers, or lodgers, in
such house, drinking and spending their time there, on the Lord's day, or
the evening [ireceding the same; and every such innholdcr or other
person so oft'ending shall be punished by fine not exceeding five dollars
for each offence.
Sect. 6. No person shall serve or execute any civil process on the
Lord's day ; but such service shall be void, and the jierson serving or
executing such process shall be liable in damages to the party aggrieved
in like manner as if he had no such process.
Sect. 7. Whoever on the Lord's day, witliin the walls of any house
of public worship, behaves rudely or indecently, shall be punished by
fine not exceeding ten dollars.
Sect. 8. All sheriffs, grand jurors, and constalilcs, shall inquire into
and inform of all offences against the preceding jsrovisions of this chap-
ter, and cause the same to be carried into effect.
Chap. 85.]
GAMING.
435
Sect. 9. Whoever conscientiously believes that the seventh day of Provision for
the week ouglit to be observed as the Sabbath, and actually refrains J,"jservL- satur-
from secular business, travel, and labor, on that day, shall not be liable jiav as tlie Sab-
to the penalties of this chapter for performing secular business, tr.avel, or u. s'. so, § lo.
labor, on the Lord's day, or first day of the week : provided, that he dis- ^ S. & it. is.
turbs no other person.
Sect. 10. Prosecutions for penalties incurred under the preceding Prosecutions
provisions of this chapter shall be instituted within six months after the g'^iiuto'i' ^^ '"
often ce is committed. r. s. 5o,§ii.
Sect. 11. Any innholder, common victualler, or person, keejiing or Penalty on inn-
sufiering to be kept in any place occupied by him, implements such as ^"I'o'pmni't'im-
are used in gaming, in order tliat the same mav for hire, gain, or reward, pieniems of
1 1 ^ ' o ^1 . 1 * T T» T ^ <\. iraminij to be
be used lor puqioses oi amusement, who on the Lord s day uses or suners 5scd ou Lord's
to be used any implenients of that kind upon any part of his premises, 'k's*?' 5 9
shall for the first oftence forfeit a sum not exceeding one hundred dollars, k" s! &% § i?.
or be imprisoned in the house of correction not exceeding three months; 1^41450; §1.
and for every subsequent offence shall be imprisoned in the house of '^'^eCh. w, §5.
correction for a term not exceeding one year; and in either case shall
further recognize, with sufficient sureties, in a reasonable sum for his
good behavior, and es))eeially that he will not be guilty of any offence
against the provisions of this section, for the space of three months then
next ensuing.
Sect. 12. The Lord's day shall include the time from midnight to " Lord's day,'
midnight. -;Xi^--
1S44, 160, § 2.
CHAPTER 85.
OF G.\MING.
Section
1. Persons losing money by gaming may re-
cover it baclc.
2. Owner of gaming house liable for money
lost in certiiin cases.
3. Penalty for winning, &c., S5 or more. Lim-
itation of prosecutions.
4. Notes, conveyances, &c., for gaming void.
5. Penalty on innliolders, li-e., for keeping, &c.,
implements for gaming for money, &c.
Section
0. Penalty for gaming in such places, and in
places licensed for bowling alleys, &c.
7. Punishment for keeping common gaming
house,
8. Common gaming houses to be entered and
parties arrested.
9. Gaming at cattle-shows, musters, &c.
Sectiox 1. Whoever by playing at cards, dice, or other game, or by persons losing
betting on the sides or hands of such as are saminsf, lo.ses to any person mono' by giim-
, ^. T, ii- c " '^ 1 1 i "^ ' T mgmay recover
SO playing or betting any sum of money, or any goods whatever, and it Wk.
pays or delivers the same or any part thereof to the winner, may sue for j^^jj 312
and recover such money and goods in an action of contract; and if the 17 Mass. 500.
loser does not within three months after such loss, without covin or col- 3 cuVii. «8.
lusion, prosecute with effect for such money or goods, any other person
may sue for and recover treble the value thereof in an action of tort.
Sect. 2. The owner, tenant, or occupant, of any house or building ownerof gam-
in which money or goods are lost by gaming, or by betting on the sides f"i-'n',"ney'iost"'
or hands of such as are gaming, with the knowledge or consent of said in certain cases.
owner, oceujiant, or tenant, shall be liable to an action in the same man- i'Vush. iis.
ner and to the same extent as the winner thereof is liable by the pro-
visions of the preceding section.
Sect. 3. Whoever, on a prosecution commenced within eighteen Penalty for
months after the commission of the offence, is convicted of winning at ^j'or'nKJre.''''
one time or sitting, by gaming or betting on the sides or hands of such «• s. 50, § u.
as are gaming, .any money or goods to the value of five dollars or more, isssj 45. '
436 GAMING. [Chap. 85.
and of receiving the s.anie or any security therefor, shall forfeit double
the value of the monej' or goods so won and received.
Notes, convey- Sect. 4. All notes, bills, bonds, mortgages, or other secuiities or
o°mm'*voi(i°'^ Conveyances, in which the whole or part of the consideration is money
U. s. 50, § 15.. or goods won by gaming or playing at cards, dice, or any other game,
or by betting on the sides or hands of persons gaming, or for reind)urs-
ing or repaying money knowingly lent or advanced for gaming or betting,
or lent and ad\anced at the time and place of such gaming or betting
to a person so gaming or betting, shall be void and of no efleet as
between the parties to the same, and as to all persons except such as
hold or claim under them in good faith and without notice of the ille-
gality of the consideration. When a mortgage or other conveyance of
lands is ailjudged void under the provisions of this section, the lands
sliall inure to the sole use and benefit of such person as would be then
entitle<l thereto if the mortgagor or grantor were naturally dead ; and
all grants or conveyances for ])reventing such lands from coming to or
devolving upon the person to whose use and benefit said lands would so
inure, shall be deemed fraudulent and of no effect.
Penalty on inn- Sect. 5. Every innholder, common victualler, or person, keeping or
tbr kmMmig,' Suffering to be kept, in any place occupied by him, any implements such
&.C., impie- as are used in gaming, in order that the same may for hire, gain, or
mcnts tor pram- i, i^*^ p . iji^ .i
ing for money, reward, be used tor purposes oi amusement, who suiters any imple-
t.% ,-, an ments of that kind to be used upon any part of his premises for the
It. b. 47, S 9. J' ■ r ii ^ 1 ^•
K. s. .-1'), 1 17. jnirjiose oi gaming tor money or otiier jiroperty, or who suiters a person
1S34', Vm. to ))lay at an unlawful game or sport therein, shall for the first offence
:i Pick. 281, 300. forfeit a sum not exceeding one hundred doUars, or be imprisoned in
s k"t.'2.T2.' the house of correction for a term not exceeding three months; and for
3c"si''^% every siibsecpient oftence sh.all be imprisoned in the house of correction
See chl i4,'§ 11. for a term not exceeding one year; and in either case shall further
I'ecognize, witli sufficient sureties in a reasonable sum, for his good
behavior, and esjiecially that he will not be guilty of any oii'ence
against the provisions of this ehajiter, for three j'ears then next ensuing.
Penalty for Sect. 6. Whoever in any 2>lace mentioned in the preceding section
i^'iTcosj^nn/in ' for the purpose of gaming tor money or other property, uses or takes
places licensed part in using any billiard table, bowlina; alle^', or other imiilements of
tor bowhng al- ' . fl l ^ \ r i .. i- It
leys, .tc. gaming, or there plays at an unlawful game or sport, or, for the purpose
u's'so'lis' ^^ such gaming, uses or takes part in using a billiard table or bowling
1857, 1'-n', §3.' alley kejjt by a person licensed as provided in chajiter eighty-eight, shall
forfeit a sum not exceeding fifty dollars for each ofienee.
Punishment for Sect. 7. Whoever keeps a common gaming house, or in a building,
mougiujiing booth, yard, or garden, by him actually used and occupied, eommonry
house. keeps or suffers to be kept any tables or other ajijiaratus for the jnir-
'' ^' ' pose of playing at any unlawful game or sport for money or any other
valuable thing, shall for every such offence forfeit a sum not exceeding
one hundred dollars, and be committed to the house of correction for a
term not exceeding six months and not less than thirty days ; and shall
also recognize with sufficient sureties in a reasonable sum for his good
behavior, and especially that he will not be guilty of any offence against
the provisions of this chapter for three years next ensuing.
Common gam- Sect. 8. If a person makes oath before a justice of the peace or
be^cl'tered and police court that he suspects, or has probable cause to suspect, that a
parties arrest- liouse Or Other building is unlawfully used as and for a common gaming
R.'s. 50, § 19. house for the purpose of gaming for money or other property, and that
ii*Met*'-n^*' ^"^'^ ^^^ dissolute persons resort to the same for that purpose, such jus-
tice or court, whether the names of the persons last mentioned are
known to the complainant or not, shall issue a warrant commanding
the sheriff^ or his deputy, or any constable, to enter into such house or
building, and there to arrest all persons who are there found playing for
money or otherwise, and also the keepers of the same, and to take into
Chap. 86.]
INTOXICATING LIQUORS.
437
their custody all the implements of craming as aforesaid, and to keep
said persons and implements so that they may he forthcoming before some
court or magistrate to be dealt with according to hnv ; and whoever is
there found so playing, shall forfeit for every such oflencc a sum not ex-
ceeding fifty dollars.
Sect. 9. Whoever during, or within twelve hours of the time of Gaminfr at raua-
holding, a cattle-show, military ninster, or pubhc gathering,
mile of the place thereof, practises or engages in any gambling or
iinla\vfal game, shall forfeit for each oifence a sum not exceeding twenty
doHars. If he is discovered in the act, he may be arrested by any
sheriff, deputy-sherifi*, constable, or other civil officer, and lawfnlly de-
tained, by imprisonment in jail or otherwise, not exceeding twenty-four
hours, until a com2>laint is made against him for the offence.
within one ^^^i^
J§1,2.
CHAPTER 86.
OF THE MAXUFACTURE, SALE, &c., OF INTOXICATING LIQUORS-
commissioner.
Section
1. Commissioner, how appointed, &c.
2. to ^ive bond.
3. to kci'p place of business in Boston, sell
to agents, &c. Liquors to be analyzed.
4. to keep record of all purchases, sales,
&c,, seal all packag^es, &c.
5. penalty for adulturatiug lirjuorB, or sell-
ing; to persons not au'cnts, Szc.
6. for sellinf"^ adulterated liquors.
7. to have no claim on Ktate, &c.
8. to report annually, ttc.
9. to appoint aj,a*nts in Boston.
10. successor of, to purcliase his stock.
11. Value of stock, how determined.
AUTHORITY TO MANUFACTURE AND SELL FOR
EXPORTATION, &C.
12. Manufacturers of liquor, how authorized.
13. to receive certificate, &c.,and g-ive bonds.
14. certilicate of, to be void, and bond to be
put in suit, &c., if they commit breach of
bond.
15. to keep books open to inspection, &c., in
which sales shall be recorded.
16. record of, to be kept, and names furnished,
&c.
CITY AND TOWN AGENTS.
17. Agfents for selling to be appointed annu-
ally, ite. Salary. Penalty on town for not
appointing.
18. certificates and bonds of ; form of bond j
record of appointment.
19. bond of, may be put in suit, authority
revoked, &c.
20. to keep books of sales open to inspection,
and accounts of purchases, &c.
21. to purchase only of commissioner, under
penalty, &c.
22. may be restrained by S. J. C. from pur-
chasing, »fcc., contrary to law.
2-3. to make returns annually, &c.
24. penalty on purchaser for making false
statements to.
SALES, &C., SPECIALLY AUTHORIZED.
25. Foreign liquors imported under laws of
U. S. may be sold in original packages.
37*
Section
2G. Pure alcohol may be sold by druggists to
physicians, &c., for medicinal jmrposes.
27. Chemists may keep intoxicating liquor for
use in their art. Sales of cider and una-
dulterated wine.
UNLAWFUL SALES, &C., REMEDIES, PUNISH-
MENTS, &c.
28. No person to manufacture or sell intoxi-
cating liquor, without being authorized,
&c.
29. No person to own or keep liquors with la-
tent to sell, &c.
.30. Penalties for unlawful sales.
31. for being niauul'acturer or common seller.
32. Several parties and offences may be includ-
ed in same complaint j and several offences
may be tried at same time, &c.
33. Delivery prima facie evidence of sale, ex-
cept, &c.
3-4. Penalty for owning or keeping liquor with
intent to sell, &c.
35. for receiving liquor unlawfully sold to
be conveyed to another xterson.
36. ou railroad corporations, tbcir servants,
&c.
3?. for bringing liquor into the state. Ac.
38. for selling to certain persons after notice
in writing, &c.
39. Persons unlawfully furnishing liquor, lia-
ble for damages done by persons intoxi-
cated thereby.
40. I'crsons found intoxicated in certain cases
may be arrested without warrant, &c.
41. to be discharged if they disclose person
of whom they procured liquor, &c.
42. Search warrants may be issued upon com-
pliiint under oath, &c.
43. not to issue to search dwelling-house,
unless, &C.
44. Place to be searched to be designated, &c.
45. Officer to seai'ch premises, seize liquors,
&c.
46. If liquor and vessels seized do not exceed
$20 in value, written notice to issue, &c.
47. Notice what to contain, how served, &c.
4S. New notice may issue In certain cases, &c.
438
INTOXICATING LIQUORS — COMMISSIONER. [ChaP. 86.
Section
49. Claimant of liquor may appear. Trial,
forfeiture, &c.
50. Certain liquors forfeited, to be delivered to
town agents for sale, &e., and others to be
destroyed, &c.
51. Liquors seized, if not kept for sale, to be
returned, &c.
62. Costs in sueU cases, and executions there-
on.
53. Persons claiming, &c., to have rig-ht of ap-
peal. To recognize in sum of $:JUO, &c.
54. Proceedings when value of liquor and ves-
sels exceeds $U0.
55. Persons illegally selling may be arrested
without warrant.
56. Public officers to arrest persons illegally
selling liquor at public gatherings, &c.
Section
57. Persons convicted under this chapter to
recognize, &c.
58. Cases under this chapter to take precedence
in courts, &c. Nolle prosefjul not to be
entered, nor continuance granted, e.xircpt,
&c.
59. Recognizances to be x^nt in suit within
sixty days.
60. Liquors, &c., unlawfully kept, common
nuisances.
61. Payment for liquor illegally sold to be
without consideration, i-c. Action for
price of liquor so sold not maintainable, &c,
62. Otiicers executing warrants protected, &c.
Penalty for neglecting to serve warrants,
&c.
63. Forms of proceedings.
Commissioner,
how appointed,
&c.
18.53, 470, § !.
1S5S, 172, § 1.
to give bond.
1855, 470, §4.
to Ueep place
of business in
IJoston, sell
to agents, &c.
Liquors to be
"analyzed.
1855,' 470, § ■;.
1858, 172, § 2.
to keep
record of all
purchases,
sales, &c., seal
all packages,
&c.
1853, 470, § 3.
penalty for
adulteratiug,
or selling to
persons not
agents, &c.
1S55, 470, § 7.
COMMISSIONER.
Section- 1. The governor with the advice and consent of the council
shall anuu.-illv apjioint and commission a competent person as commis-
sioner to ))urch;ise and sell spirituous and intoxicating liquors, of a pure
quality, to the several city and town agents appointed under the pro-
visions of this chaj)ter, and to regularly appointed agents in cities and
towns of other of the New England States, and to no other person.
Such commissioner shall, unless sooner removed, hold his office tor one
year, and until his successor is appointed and qualified.
Sect. '2. The commissioner, within ten days after being coniniis-
sioned, shall file in tlie office of the treasurer of the commonwealth a
bond to the commonwealth in the jienal sum of twenty thousand dolI:;rs,
with two or more good and sufficient, sureties to be approved by the
treasurer, for the faithful performance by him of the requisitions of this
chapter.
Sect. 3. He shall establish .and maintain in the city of Boston a
suitable ]jlace of business, and shall purchase and sell to such agents,
and to them only for the purposes in this chapter specified, s])irituou8
and intoxicating liquors of a jnire quality, and unadulterated with any
mi.xture, or noxious (^r jioisonous substance. All liquors kept for sale
by him shall be analyzed by one of the state assayers at an expense not
exceeding one per cent, of the cost of the liquor, to be paid by the
commissioner; and he shall sell no spirituous or intoxicating liquors,
except such as one of said assayers in writing certifies to be jiure ; and
all analyzations of liquor shall be made from samples taken by the
assayer from original packages jiurchased by the agent ; and all liquors
sold by said agent shall be certified by him to have been taken li'om
packages so analyzed. His sales shall be made for cash, and at a ])rice
not exceeding an advance of five per cent, upon the actual cost, together
with the cost of such analysis.
Sect. 4. He shall keep a record, in which sliall be plainly and truly
recorded all purchases and sales made by him, the names of the persons
of and to whom, an<l the jirices at which, the same were made ; which
record shall be at all times open to the inspection of the mayor and
aldermen and selectmen of the cities and towns, and to the jirosecuting
officers of the commonwealth. All packages of liquors sold by him
shall have his seal affixed tliereto before delivery, and all liquors so pur-
chased or sold and sealed may be transported from place to jilace.
Sect. 5. If he adulterates or causes to be adulterated snid liquors,
or any thereof, or sells to persons other than those to whom he is author-
ized by section first of this chapter, or at an advance greater than five
per cent, upon the cost as aforesaid, he shall forfeit to the commonwealth
the amount of his bond and be imprisoned in the state prison not less
Chap. 86.] intoxicating liquors — manufacture, &c. i'SQ
than .>iix months nor move than five years. And if .any person employed
by hiui violates any of the provisions of this section, he shall be liable
to the same term of imijrisonment.
Sect. 6. If he, or any pei-son in his employ or on his premises, sells Commissioner,
any adulterated spirituotis or intoxicating liquor, they shall be liable to {!™"»iJiiter.au'i
the penalties provided in section thirty-one for being a common seller. i''i'l"f^-„
Se('t. 7. He shall not claim or receive of the commonwealth any "^o'lmvcno
compensation for his outlay, services, or expenses, in said business, or i-i.iim ou state,
contract any debt or obligation, nor incur any liability, on the faith or in iJSs, 470, § r..
behalf of the commonwealth.
Sect. 8. He shall annually, on or before the fifteenth day of Octo- to report an-
ber, report to the secretary of the commonwealth the amount of his S/if2,§5.
sales to city and town agents, in detail ; the cost thereofi his commis-
sions, expenses, and profits, thereon ; designating also the cities and
towns to which he has made no sales. The report shall be made up to
the last da}' of the jireceding month, shall be printed bj' the secretary,
included with the public series of documents, and laid before the legis-
lature.
Sect. 9. He shall appoint in the city of Boston as many agents, not to appoint
exceeding five, as he thinks the interests of the citizens require, who shall ?f™''' *" °^
have the same powers and be subject to the same obligations as agents isss, 172, §6.
appointed by the mayor and aldermen of cities, and who shall sell only
pure liquors at the lowest cash jjrices. Their authority shall not con-
tinue after the commissioner by whom they are appointed ceases to hold
his office.
Sect. 10. In case of the death, removal, or the expiration of the successor of,
term of office, of the commissioner, his successor shall purchase his etock"" '""'' ""
stock of spirituous or intoxicating liquors, analj-zed and certified as isss, i?-', 5 3.
aforesaid, to an amount not exceeding t\venty-ti^•e per cent, of his last
yeai-'s sales.
Sect. 11. If the parties cannot agree upon the value of the liquors, v.iiue of stock,
it shall be detciTuined by three persons, one a])pointod by the person J;o«' d^tcrmin-
purchasing, one by the person owning the liquors, and the third by the isas, 172, § i-
two so appointed ; and their award shall be binding on the parties.
authority to jcanttfactuee and sell for exportatiox, &c.
Sect. 12. The county commissioners and the mayor and aldermen Mannfacturers
of the city of Boston, on the first Monday of May annually or as soon auti'iOTS. °"
thereafter as practicable, may authorize such persons as apjjly to them i»ii, ai5, §9.
in writing, to manutacture .'spirituous or intoxicating liquors at jjlaces
within their resi)ective jurisdictions, and to sell the same in quantities
not less than thirty gallons, to be exported or to be used in the arts or
for mechanical and chemical purposes in this state, and such authority
shall continue for the term of one year fi-om the date thereof; unless
sooner revokeil for cause, or annulled as hereinafter provided.
Sect. 13. Every such person shall receive from the board by which to receive ccr-
he is so authorized, a certificate giving him authority to manufacture andVvc bonds.
and sell spirituous and intoxicating liquors as aforesaid, at such place i**^5, ;;iu, § 11.
within the jurisdiction of the board as shall be designated with precision
in the certificate ; but it shall not be delivered to such person until he
has executed and given to said boar<l a bond with two good and suf-
ficient sureties in the sum of six thousand dollars, in substance as
follows : —
Know all men that we, , as principal, and and • , as sureties, are holden
and stand firmly bound to the inhabitants of the county of , (or city of Boston, .is
the case may be,) in the sum of six thousand dollars, to be paid unto them, their suc-
cessors or assigns, to which pajTucnt we bind ourselves, our heirs, executors, and ad-
ministrators, jointly and severally, firmly by these presents. Sealed with our seals,
and dated this day of , A, D, . The condition of this obligation is such,
440
INTOXICATING LIQUOES — TOWN AGENTS. [ChAP. 86.
Manufacturer,
certitieatt* of
to be voirl, and
bond to be put
in suit, &c.,
when, &c.
1S53, 215, §§ 11,
H.
to keep books
open to inspec-
tion, &c , iu
whicli sales
sliall be re-
corded.
1855, 215, § 10.
that whereas the above boundcn has been duly authorized to manufacture spirit-
uous and into.xicating liquor.s at , in the town (or city) of , and county of ,
and to sell the same in quantities not less than thirty gallons, to be e.\i)ortcd," or to be
used in the arts, or for mechanical and chemical purposes, or in any quantity to duly
authorized agents of cities and towns, as by law provided, until the dav of ,
A. D. , unless such authority is sooner revoked or annulled : Now, if said
shall, in all respects, conform to the provisions of law relating to the business which
he is authorized as above to pursue, and shall violate no law of the commonwealth
touching the manufacture and sale of spirituous or mtoxicating liquors, during the
term for which he is authorized to manufacture such liquors as above mentioned, then
this obligation to be void — otherwise to remain in full force.
Sect. 14. If the principal in the bond commits a breach of any con-
dition thereof, his certificate shall thereupon become void, and he shall
not thereafter be authorized to manufacture or sell spiiituous or intoxi-
cating liquors. If u])on complaint made to the county commissioners
or the mayor and aldermen of Boston, and notice to the principal, and
a hearing of the parties thereon, any breach of the bond a])pears to
have been committed, they shall at the expense of the county or city
cause the bond to be put in suit, and shall make a record that his
authority is revoked and void ; or they may put the bond in suit with-
out such complaint, notice, and hearing.
Sect. 15. Every such manufacturer shall keep a book, which shall at
all times be open to the inspection of the board authorizing him to
manufacture, in which he shall enter the date of every sale of spirituous
liquors made by him, the name of the jiurchaser, his residence, and the
qu.antity and kind of liquor sold, and if exjiorted, the place to which ex-
ported and the name of the consignee, substantially in the following
form : —
Date.
Name of
pureliaser.
Residence of
pureliaser.
Quantity and
kind of liquor.
Where
exported.
Name of
consignee.
Purpose of
use.
record of, to
be kept, and
names furnish-
ed, &c.
1855, 215, § 12.
Sect. 16. The clerks of the commissioners and the city clerk of
Boston shall keep a record of the names, residences, and certificates, in
full, of all jiersons authorized by said boards respectively to manufacture
and sell as ]irovided in section twelve, and the names and residences
of all agents furnished them by city and town clerks ; which record
shall be ojien to public inspection at all reasonable times ; and they
shall furnish a list of said names and residences to all])ersons authorized
by their boards to manufacture and sell spirituous or intoxicating liquors,
and to all agents whose names have been furnished them as aforesaid.
city and town agents.
Agents for sell-
ing to be ap-
pointed annual-
ly, &c. Salary,
Penalty on
towns for not
appointing.
ISoo, 215, § S.
lSo8, 172, § U.
certificates
and bonds of.
1S55, 215, § 8.
Sect. 17. The mayor and aldermen or selectmen of every city and
town, on the first Monilay of May annually, or as soon after as con-
venient, shall appoint for one year, unless sooner removed by the board
a]ipointing them, one or more suitable persons as agents of such ])lace
to purchase and sell at some convenient places therein spirituous or
intoxicating liquors to be used in the arts, or for medicinal, chemical,
and mechanical purposes, and no other; and if in any year they neglect
for three months after said date to appoint at least one such agent, they
sliall Ibrfeit one hundred dollars, to be recovered to his own use in an
action of tort by any person who may sue for the same. Every agent
shall receive such fixed salaiy, not dependent in amount u])on the
sales, as the board appointing him shall determine, and in his sales shall
conform to such rules and regulations as they may prescribe.
Sect. IS. P^very agent shall receive from the board appointing him
a certificate, authorizing liim, as agent of such city or town, to ]mri-]iase
and sell at such places therein as shall be designated with precision in
Chap. 8G.] intoxicating liquors — town agents.
441
his certitiento, intoxicating liquors to be used in tlie arts, or for me-
dicinal, chemical, and mechanical puii^oses only; but it shall not be de-
livered to him until he has executed and given to said board a bond,
with two good and sutlicieut sureties in the sum of six hundred dollars,
in substance as follows : —
Know all men that we, , as principal and and , as sureties, are holden,
and stand firmly bound to the inhabitants of the town of , (or city, as the case
may be,) in the sum of six hundred dollars, to be paid unto them, their' successors or
assigns, to which payment we bind ourselves, our heirs, executors, and administrators,
jointly aud severally, firmly by these presents. Scaled with our seals, and dated this
day of , A. D. . The condition of this obligation is such, that, whereas
the above bounden has been duly appointed an agent for the town (or city) of
to purchase intoxicating liquors and to sell the same within, for, and on account of,
said towii, (or city,) to be used in the arts, or for medicinal, chemical and mechanical
purposes, and no other, until the day of , A. D. , unless sooner removed
from said agency : Now, if the said shall, in all respects, conform to the pro-
visions of law relating to the business for which he is appointed, and to such rules and
regulations as now are, or shall from time to time be. established by the board making
the appointment, then this obligation to be void — otherwise to remain in full force.
The city and town clerks shall keep a record in full of all such a]i-
pointments, which shall be open to public inspection at all reasonable
times ; and they shall, as soon as practicable after the appointments,
furnish a list thereof to the county commissioners.
Sect. 19. Upon complaint made to the mayor and aldermen, or
selectmen, they shall notify the piincipal, and if upon a hearing of the
parties it apjiears that a breach of the conditions of the bond has been
committed, tliey shall revoke and make void his authority ; and at the
expense and for the use of their city or town, shall cause the bond to be
put in suit ; or they may put such bond in suit without such complaint,
notice, or hearing.
Sect. 20. Each agent shall keep an account of all purchases of
liquors maile by him, and shall s]>ccify the kinds and quantity pur-
chased, the ]irices paid, the ])ersons of whom purchased, and the dates
of the purchases ; and shall also keep a regular account of all the for-
feited spirituous or intoxicating liquors delivered to him for sale by
order of any justice or court. He sh.all keep a book and enter therein
the date of every sale made by him, the person to whom sold, the kind,
quantity, and jirice, thereof, and the purpose for which it was sold, sub-
stantially in the following form : —
Agcnfs, form
ol boud of.
record of.
bor.d of, may
be ]mt in suit,
autiiority re-
voked, &c.
Ib55, 215, § H.
to keep books
of Sides open to
inspection, find
accounts of pur-
cb;ls:os, &e.
1SJ5, 215, §0.
Residence.
Kind und
qu.iutity.
Purpose of use.
Price.
which book shall at all times be ojien to the inspection of the mayor
and aldermen, selectmen, overseers of the poor, sheritfs, constables, and
justices of the peace, in such city or town.
Sect. 21. Every agent shall purchase of the commissioner ap-
pointed under section one all s])irituous or intoxicating liquor to be
sold by him. Any agent purchasing such licjiior of any other person, or
selling such ]i(|uor purchased by him of any other person, shall be liable
to the penalties provided in section thirty-one for being a common
seller.
Sect. 22. The supreme judicial court shall have jurisdiction in
equity, on com]ilaint of any party interested, to restrain and enjoin any
agent who purchases or sells spirituous or intoxicating liquors in viola-
tion of any law of this state ; and such injunction may be issued by any
justice of the court in term time or vacation.
Sect. 23. Every agent shall annually on or before the fifteenth day
of October make a return to the secretary of the commonwealth of the
amount and kind of liquors purchased by him, the date of each rmr-
56
to purcliasc
ouly orcommis-
Rioucr.
Penalty.
1^55, 470, § 5.
1857,293, §2.
may W rc-
Rtr.ninod by
S. J. C. from
pnrchat^ing:,&c.,
contrary to law.
lto7, 2y:i, § 1.
to malvo re-
turns auiumlly,
Ac
lb5S 172, §§7, 8.
442 INTOXICATING LIQUORS SALES SPECIALLY AUTHORIZED. [ChAP. 86.
chase, the prices jjiiid, and the name of the party of wliom purchased ;
and if he fails to make sucli retm'n, he shall forfeit a sum not exceeding
one hundred dollars. The returns shall be kept on tile in tiie secretary's
office, but need not be printed.
Penalty for Sect. 24. Whoever, purchasing spirituous or intoxicating liquor of
making false any agent, intentionally makes a false statement regarding the use to
aeent, &c. which the liquor is intended to be applied, shall pay a hue of not less
iS5o, 215, § 7. ^.j^^j^ £^g jjQj. j^oi-g tJian twenty dollai-s.
SALES, &C., SPECIALLY AUTHORIZED.
Foreign liquors Sect. 25. The importer of liquor of foreign production imported
I'^portea under „„,|er authority of the laws of the United States, may own, ))Ossess,
may beso'iii'iu keep, or sell, the same, in the original casks or packages in wliich it was
?"(fs'.'"'' '""""^ imported, and in quantities not less than the quantities in which the
1I55, 215, §§ 2, 4. laws of tlie United States require such Uquor to be imported, and if
sold by him, the same shall be as pure and unadulterated as when
im]iorted.
Pure alcohol Sect. 26. Druggists may sell, for medicinal pur]ioses only, pure
dru^o-^fsts ti''^ alcohol to other (Iruggists, apothecaries, and physicians, known to be
phj-srcians, ,tc., such : proviclid, that "they shall keep a book in which they shall enter
imrpos's!'""' the date and quantity of every sale, the name and residence of the
'*^J-!> J^i- . purchaser, ami if exported, the ]ilace to which exported, and the name
is5o, 210, 2. ^^, ^j^^ consignee ; which book shall at all times be open to the inspec-
tion of the mayor and aldermen or selectmen. If a druggist or the
clerk or agent of a druggist is convicted of an illegal sale, he shall pay
a fine of one thousand dollars.
Chemists raiiy Sect. 27. A chemist, artist, or manufacturer, in whose art or trade
keep into.xirat- they may be necessary, may kee]3 at his jilace of business s]iirituous
Sales, 4e.' 01" liquors for use in such art or trade, but not for sale; and any jierson
wine' '"^'^ '""" '"'^}' manufacture or sell eider for other puiijoses than that of a bever-
isjj, 215, § 1. age, and unadulterated wine for sacramental jjurposes.
UNLAWFUL SALES, &C. REMEDIES, PUXISHMEXTS, &C.
No person to Sect. 28. No pcrson shall manufacture for sale, or sell by himself,
"ii"intoSclit" '"* clerk, servant, or agent, directly or indirectly, any s])iiituous or
ing liquor, intoxicating liquor, or any mixed liquor part of which is s])irituous or
au\hori'ed,''&c. intoxicating, unless he is authorized as provided in this chapter. Ale,
1S35, 215, § 1. porter, strong beer, laKer-bier, cider, and all wines, shall be considered
' ' intoxicating liquors within the meaning of this chapter, as well as dis-
tilled s])irits ; but this enumeration sliall not prevent any other pure or
mixed liquors from being regarded as intoxicating.
No person to Sect. 29. No person shall own, possess, or keep, any spirituous or
UquOTs'^witii'iu- intoxicating liciuor, with intent to sell the same in this state, and no
tent to sell, &c. owner of such liquor shall iiermit or sufler any other person to keep the
is5j, 215, § .I. g.(„^(, f|3j. j]je purpose of selling it in this state, unless authorized as pro-
vided in this chapter.
Penalties for Sect. 30. Whoever by himself, his clerk, servant, or agent, directly
\^i^nb,T^i"' ^^ indirectly, or on any pretence or by any device, sells, or in consider-
1 Gray,4si,4s.!. ation of the purchase of any other projierty, gives, to another person
4Gra5^V8t4a^ spirituous or intoxicating liquor, or mixed liquor part of which is spirit-
5 Gray, 97. uous or intoxicating, in violation of the provisions of this chapter, shall
e Gray, 482, 485, „ ■ , ■ " , i ,, i 1 • • i • .^1 1 „<■
487,488,480. for ouc Violation, jiay ten dollars and be imprisoned in the liouse 01
See ch. 120, §40. correction not less than twenty nor more than thirty days; for a .second
violation, shall pay twenty dollars and be imprisoned in the house of
con-ection not less than thirty nor more than sixty days ; and for any
subsequent violation, shall jiay fifty dollars and be inqirisoned in the
house of correction not less tlian three nor more than six months ; and
Chap. 86.] intoxicating liquors — unlawful sales, &c. 443
if in any case the fine and costs are not paid, the imprisonment shall be
extended thirty days. Whoever in the employment or on the premises
of another violates any provisions of this section, sliall be held equally
guilty with the princiixil, and suffer the same punishment.
Sect. 31. Whoever is a manufacturer of spirituous or intoxicating Pcnniiy for bo-
liquor for sale, or a common seller thereof, in violation of the provisions ei^or'commou'^
of this chapter, shall for one violation, pay fifty dollars and be imprisoned stiicr.
in the house of correction not less than three nor more than six months; i'^G?ray','3J«!i'e3,
for a second violation, shall pay the sum of two hundred dollars and *'"•
be imprisoned six months in the house of con-ection ; and for any subse- ii (ir."y,' 466.'
quent violation, shall ))ay the sum of two liundred dollars and be im- j.,^"'"*' "' "''
prisoned twelve months in the house of coiTection in the county where aOray, or.
the offence was committed. Whoever in the employment or on the ' '^■■''>' ■*'-"'■
premises of another violates the provisions of this section, shall be held
equally guilty with the ])rinci])al, and shall sutler the same ])unishment.
Three several sales of s))irituous or intoxicating liquors to one or more
persons shall be suflBcient evidence of a violation of this section, but
this shall not prevent proof of the same by other evidence.
Sect. 3:2. The names of all the parties charged with any oflence, Several parties
under either of the two ])rcceding sections, and one or more" oflences, mifybl'^hiduded
may be included in the same complaint or indictment, and maybe tried "j f^ic com-
at the same time. Whoever is convicted of more than one ofi'cnce on M-'vcra'i offenas
the same complaint or indictment, or on difl'erent indictments, at the "me'time'^ic*
same or any other terms of the court, shall be subject to the same pun- )t55, 216, §'§ 15,
ishments as if he had been successively convicted on as many complaints j'Gray, 4T0.
or indictments at different temis of the court as there are oflences of - (j^.-Oi soo.
which he is con\'icted ; but the whole aggi'egate temi of imjirisonment '^"'^'
under any one complaint or indictment, or at any one term of the court,
for violations of the provisions of either section, shall never exceed one
year.
Sect. 83. In all cases under this chapter, delivery of intoxicating Delivery pWmo
liquor in or from any buildinii or iilace, other than a ))rivatc dwellins- /«™ evwcnce
i ^ m/ ^o I ■ _ , J ^ oi sulc, except*
house or its dependencies, or in such dwelling-house or dependencies, if &c.
part of the same is a tavern, j)ublic eating-house, grocery, or other place J'"jfrr.v*i.*"**'
of common resort, shall be deemeil prima faciv evidence of and punish- ' Gray, ai2.
able as a sale ; and a delivery in or from a private dwelling-house with
payment or promise of ])ayment either express or imjilied, on, before, or
after, such delivery, shall be deemed jorj'ww facia evidence of and jiun-
ishable as a sale.
Sect. 34. Whoever owns, possesses, or keeps, any sjnrituous or in- Pen.iity for
toxicating liquor, with intent to sell the same contrary to the provisions "[""ilquor wnu
of this chapter, shall be fined ten dollars and imjuisoned twenty days iiieut to sell,
in the house of con-ection, and shall be imprisoned twenty days longer isja'a, 215, § 24.
if said fine and the costs are not paid. A complaint may be made and
prosecuted imder this section, whether any liquor lias been seized as
being owned or kept by the ])erson complained ag;unst or not.
Sect. 35. Whoever, for the purjjose of conveying to another person, for receivius
receives any spirituous or intoxicating liquor which has been sold or is ("nv eo1<Mo bo
intended for sale in violation of this chrpter, ha^-ing reasonable cause to conycyod to an-
believe that the same has been so sold or is so intended for sale, shall i«5,y.s,'^§*iti'.
on conviction thereof, either in the ])lace where the liquor is received or
in any place through which it is carried, or in the jilaco at which it is
delivered to the purchaser or to any person for him, pay a fine of twenty
dollars.
Sect. 36. Whoever, having authority from a railroad corporation to on railroad
receive goods to be transjiorteil by such coi-]ioration, receives, for the fl"3r°servaut'8
j)uq30sc of having the same transported on sucji railroad, any spirituous *^-
or intoxicating liquor sold or intended for s.ole in violation of this chn].'- '^'^' '"''^^ '
ter, having reasonable cause to believe that the same has been so sold
1855, 215, § 21.
444 INTOXICATING LIQUORS UNLAWFUL SALES, &c. [CHAP. 86.
or is SO inteiifled for sale, shall bo liaMc to tlie penalty prescribed in the
preceding section ; and the corporation shall also be liable to jiay a fine
of fifty dollars, to be recovered by indictment or complaint "in any
county in which such liquor has been received or into which it is
carried.
Penalty for Sect. 37. Whoever brings into this state, or conveys from jilacc to
?n"o th/stX" place within the same, any spirituous or intoxicating liquor, with intent
&c. to sell the same himself or to have it sold by another, or having rcason-
H ■)>- ,5- • jjijjg cause to believe that the same is intended to be sold in violation
of this cha]iter, shall be punished for the first and each sulisequent
offence in the manner provided in section thirty, for any person illegally
selling spirituous or intoxicating liquor,
for selling to Seot. 38. The husband, wife, ]iarent, child, guardian, or em]iloyer,
StciTotteei'a^ of any person who has the habit of drinking sjiirituous or intoxicating
writing, &c. liquor to cxccss, may elve notice in writintr sitrned bv him or her to
any person not to deliver spirituous oi- intoxicating liquor to the person
who has such habit. If the person so notified at any time within twelve
months after such notice delivers any such liquor to the person who has
such habit, the person giving the notice may in an action of tort recover
of the person notified any sum not less than twenty-one nor more than
five hundred dollars, as may be assessed by the jury as damages. A
married woman may bring such action in her own name notwithstand-
ing her coverture, and all damages recovered by her shall go to her
separate use. In case of the death of either party the action and right
of action given by this section shall survive to or against his executor
or administrator.
Persons unlaw- Sect. 39. If a person in a state of intoxication commits an assault
and battery or injures any pro]ierty, whoever furnished him with any
part of the spirituous liquor which occasioned his intoxication, if the
same was furnished in violation of this chajiter, shall be liable to the
catwi thcrebj'. same action by the part v injured as the person intoxicated would be
ISoo, 21j, §"^;i. ,. , , , * , * .' . "^ , 1-11 . 1 .
liable to; and the party injured, or Ins legal representatives, may bring
either a joint action against the person intoxicated and the person who
furnished the liquor, or a separate action against either.
Persons found Sect. 40. If a ]ierson is found in a state of intoxication in a ] lublic
intdxicated in pi;icc, or is fouud in any place in a state of intoxication committiuEr a
may lie arvr^teii breach of the ]ieace or disturbing others by noise, anj' sheriff, deputy-sheriff,
nmt',".l'c." '" constable, watchman, or police officer shall without a warrant take him
1855,215, §33. jnto custody, and detain him in some jiroper place until in the ojiiiiion
of such officer he is so far recovered fi'om his intoxication as to lender
it projier to carry him before a court of justice. The officer sliall then
take him before some justice of the jieace or police court in the city or
town where he lias been found, and shall make a complaint against him
for the crime of drunkenness.
to be (lis- Sect. 41. If such person then discloses fullj' the name of the person
dud?se persoa of v.'hom, and the time, place, and manner in which, the liquor ]iro-
of wiiom they ducing his intoxication Was procured, and all circumstances atteiKling
SquorV&c. it, the justice or court shall administer to him the oath jjrovided tor
1S55, 215, § 2:j. witnesses, and interrogate him in the presence of the officer; and if it
appears to the officer and magistrate that either of the offences s]iecified
in sections thirty or thirty-one has been committed, the officer shall file
his complaint for the commission of such offence, before said justice or
court, against the persons who appear to have been guilty thereof, and
the jierson so disclosing shall be named as one of the witnesses. The
officer shall thereupon discontinue his ]irosecution for drunkenness, and
the person arrested shall be discharged, and shall not be liable to be
prosecuted again for the same offence.
Search war- Sect. 4"2. If two jiersons, of full age and competent to testify, make
is8'ued"uiK)ii'^ complaint under oath or affirmation, before a justice of the jjcace or
fully furiii
li.Hior lial.l'
for .laiiia-vs
done by per-
1 intoxi
Chap. 86.] intoxicating liquors — unlawful sales, &c. 445
j>nlice court, tliat they have reason to believe, and do believe, that any complaint, un-
spirituous or intoxicating liquor, described in the complaint, is kept or i«.5°2i5,' § 25.
de])osited by a person named in the complaint in a store, shop, ware- 1 tiray, 1.
liouse, building, vehicle, steamboat, vessel, or place, and intended for
sale contrary to the provisions of this chapter, such justice or court,
upon its appearing that there is probable cause to believe said comjilaint
to be true, shall issue a wan-ant of search to any sheritl", deputy-sheriif,
city marshal, chief of police, deputy chief of police, deputy marshal, or
constable, commanding him to search the jjremises in which it is alleged
such liquor is deposited, and to seize such liquor with the vessels in
which it is contained, and securely keep the same until final action is
had tiiereon, and return the warrant with his doings thereon as soon as
may be to the same or some other justice or police court in the place
where such liquor is alleged to be kept or de]iosited.
Sect. 43. Xo warrant shall issue for the search of a dweUing-house, soarrh warrant
unless a tavern, store, grocery, eating-room, or jilace of con\mon resort J,'";|ri-h dweU *''
is kept therein ; ami no warrant shall issue for the search of a dwelling- ins-l>ou8c, un-
house unless one of the complainants makes oath or affirmation that he L^w.^fs, §25.
lias reason to believe, and does believe, that such liquor has been sold 0 Gray, 491.
therein or taken therefrom for the ])urpose of being sold by the occu-
pant, or by his consent or permission contrary to law, within one month
next before making such complaint, and is then kept therein for sale
co}itrary to law by the person complained against. The complainant
shall in his oath or affirmation state the facts and circumstances on
which such belief is founded, and such allegations shall be recited in
the comjilaint and warrant.
Sect. -ii. In all cases the complaint shall particularly designate so Place to be
as to identify the building, structure, and place, to be searched, the di.s'i'™ted*, &c.
liquors to be seized, the person by whom they are owned, kept or pos- J|.',''^ "/"=''**'
sessed, and intended for sale, and shall allege the intent of such person iwir^us, §25.
to sell the same contrary to the provisions of this chapter. The warrant J J^raylliio.
shall be supported by the oath or affirmation of the conqilainant, and
shall allege that probable cause has been shown for the issuing thereof;
and the place to be searched, the liquors to be seized, and the person
believed to be the owner, possessor, or keeper of such liquors, intending
to sell the same contrary to the provisions of this chajjter, shall be set
out therein by special designation and with the same particularity as in
the complaint ; and the offence both in the conqjlaint and WMTant shall
be fully, plainly, and substantially described, and the cuniplainauts shall
be summoned to appear as witnesses.
Sect. 45. The officer to whom the warrant is committed shall pro- Officer to search
ceed to search the premises and seize the liquor described in the war- Eq'iJUrl^&c.'''^'^
rant, with the casks or other vessels in which it is contained, if they are isso, 215, 525.
foun<l in or upon said premises, and shall con\ey the same to some place
of security, where he shall keep the liquor and vessels until final action
is had thereon.
Sect. 46. If, in the opinion of the justice or court before which the if liquor and
warrant is returned, the value of the licjuor seized, with the vessels con- jo^irt exceed
taining it, does not exceed twenty dollars, a written notice under seal, S'-'oi" value,
and signed by the justice or the clerk of said court, shall be issued within to issue, <tc.
twenty-four hours after such seizure, commanding tlie ]ierson complained ^'^^< 2i5i §20.
against as the keeper of the liquor seized and all other persons claiming
any interest therein, or in the casks or vessels containing the same, to
a])pear before said justice or court, at a time and ])lace therein named,
to answer to said complaint, and show cause, if any they have, why such
liquor with the vessels containing it should not be forfeited.
Sect. 47. The notice shall contain a description of the number and Xotic*, what to
kind of vessels, the qiiantity and kind of liquor seized, as nearly as may scrv2d"'&c°™
be, and shall state when and where they were seized. It shall be served isso, 215, §26.
3S
446 INTOXICATING LIQUORS — UNLAWFUL SALES, &c. [CHAr. 86.
by any sheriff, rloputy-shoriff, constable, or police officer, upon the person
charged with being the keeper thereof, by leaving an attested copy of
the same with him personally or at his usual place of abode, if an inhab-
itant of this state, and by posting up an attested copy on the building
in which the liquor was seized, if it was found in any building, otherwise
in some ])nblic ])lace in the city or town where the liquor was seized, and
by publishing an attested copy at least twice in some newspaper printed
in the county where the seizure is made, if there is any such pa]ier.
The posting up of the notice, and the serving tlie same on the party
complained of as keeper, and the first publication in the newspaper, shall
be not less than fourteen days before the time apjiointed for the trial.
New notice may Sect. 48. If at the time appointed for trial said notice has not been
cases '4.^'''^'"° cliily served, or other sufhcient cause appears, the trial may be jiostponed
1855, 21a, §25. to some other day and place, and such further notice issued as shall
supply any defect in the previous notice ; and time and opportunity for
trial and <lefence shall be given to persons interested.
Claimant of Sect. 49. At the time and place designated in the notice, the pei-son
pearJ Tmi"'' Complained against, or any person claiming an interest in the liquor and
(oS^i^'^s*"' vessels seized, or any part thereof, may a])pear and make his claim ver-
1 Gray, i. ' bally or in writing, and a record of his appearance and claim shall be
made, and he shall be admitted as a party on the tri.al. Whether a
claim as aforesaid is made or not, the justice or court shall proceed to
try, hear, and determine, the allegations of such complaint, and whether
said liquor and vessels, or any part thereof, are forfeited. If it a]ipears
that the liquor or any part thereof was at the time of making the com-
plaint owned or kept by the person alleged therein, for the purpose of
being sold in violation of this chajiter, the court or justice shall render
judgTnent that such and so much of the liquor so seized as was so unlaw-
fully ke]jt, and the vessels in which it is contained, be forfeited to the
commonwealth.
Certain liquors Sect. .50. Any liquor SO forfeited, which in the opinion of said justice
deUvcmUo''" o'' f'om't is suitable for use for medicinal, chemical, or mechanical jnir-
town ag-ents for poses, shall, by the authority of the written order of the justice or court,
others to be de- be delivered to any agent appointed for the sale of spirituous liquors of
i855^2f5' ^27 ^^^^ ^^^^ *''' ^ovn in which the liquors were seized, to be sold by him,
and the net proceeds paid over to the treasurer of the commonwealth.
If there is no such agent in said city or town, the same shall be deli\ered
to any such agent in the state that the justice or court may order, to be
by him sold, and the proceeds paid over in like manner, and the officer
to whom such order is directed shall make return of his doings in the
premises. Any such liquor, which in the opinion of the justice or court
is not suitable for use as aforesaid, shall, by like order, be destroyed in
the presence of the justice or court, or in the presence of some person
appointed thereby to witness such destruction, and the witness shall
join with the officer in attesting the fact upon the back of the order by
authority of which it was done.
Liqnors seized, Sect. .51. If it is not proved on the trial, th.at all or part of the liquor
^le'^to'be're-'^ seized was kept or deposited for sale contrary to law, the justice or court
turned, Ac. shall issue a written order to the officer having the same in custody, to
1855, 210, § 28. yg^m-^ gQ much thereof as was not proved to be so kept or deposited,
with the vessels in which it is contained, to the place as nearly as may
be fi-om which it is taken, or to deliver the same to the person entitled
to receive it ; which order the officer, after executing the same, shall
return to the justice or court with his doings indorsed thereon.
Costs in such Sect. 52. If no person appears and is admitted as a party as afore-
cuHons thereon, ^^'■'^i ^i" if judgment is rendered in fitvorof .all the claimants who appear,
1855,215,527. the cost of the proceedings shall be paid as in other criminal cases. If
only one party appearing fails to sustain his claim, he shall pay all the
costs except the expense of seizing and keeping the liquor, and an exe-
Chap. 86.] ixtoxicatixg liquors — unlawful sales, &c. 447
cution shall be issued against him therefor. If judgineiit is rendered
against two or more claimants, of distinct interests in the liquor, the
costs shall according to the discretion of the justice or court be appor-
tioned among such jiarties, and executions sliall be issued against them
severally. If such execution is not forthwith paid, the defendant therein
named shall be committed to the jail, and shall not be discharged there-
from until he has ))aid tiie same and the costs of commitment, or until
he has been imjirisoned thirty days.
Sect. 53. The jierson claiming any such liquors, whose claim is not Persons daim-
allowed as afoi-esaid, and the person complained against, shall liave the i"m.'^rMi\''of
same riffht of apiaeal and to the same court as if he had been convicted aia'p"!"
,. .^ 1,11' 1 • 1*11 11 111 • .. ii To reco^izc in
ot a crime; but before his appeal is allowed he sliall recognize to the Rumorf.'on.&c.
commonwealth in the sum of two hundred dollars, with good and suffi- k^ss, ai5, §au.
cient surety or sureties, to prosecute his appeal at the court appealed to
and to abide the sentence of the court thereon ; and u]ion such appeal
any question of foot shall be tried by a juiw. On the judgnrent of the
court after verdict, whether of forfeiture of the whole or any part of
the liquor and vessels seized, or otherwise, similar proceedings shall be
had as are directed in the four preceding sections.
Sect. 54. If in the opinion of the justice or court before which a rmcpcdings
warrant is returnable under which any liquor has been seized, the value iiq',',or aud vcs-
of the liquor seized with the vessels containing it exceeds twenty dol- kIs exceeds
lars, a notice shall be issued and served as directed in sections forty-six Ti^m, 215, §30.
and forty-seven, except that the same shall be made returnable to the i*^5'J> iw-
term of the superior court to be held in the county next alter the
expiration of fourteen days from the time of issuing the notice. Tlie
court before which the notice is made returnable shall have jurisdiction
of the case, and may proceed therein in the manner directed in sections
forty-eight, forty-nine, fifty, fifty-one, and fifty-two, as nearly as may be,
and with a jury, u]ion any issue of fact presented by the claunant or
directed by the court.
Sect. 55. Any mayor, alderman, selectman, sheriff, deputy-sheriff. Persons niegrai-
chief of police, deputy-chief of police, city marshal, deputy or assistant- be arresfc™"^
marshal, poUce officer, constable, or watchman, in his city or town, may "ithout war-
without a waiTant an-est any person whom he finds in the act of illc- i(.5.5,2i5,§i3.
gaily selling, transporting, or distributing, intoxicating liquors, and seize 'je'ray'l^;
the liquors, vessels, and implements of sale, in the possession of said
person, and detain them in some place of safe keeping until waiTants
can be procured against said person and for the seizure of said liquor,
vessels, and implements, under the provisions of this chapter. The sev-
eral officers aforesaid shall enforce or cause to be enforced the jienaltics
provided in this chajiter, against every person guilty of any violation
thereof of which they can obtain reasonable proof. If any slierilf, dep-
uty-sheriff, chief of ]3olice, deputy-chief of police, constable, or police
officer, after being furnished with a written notice of any violation of
this chapter, and the names of the witnesses, for two weeks neglects to
institute proceedings thereon, any person who thereafter makes com-
plaint shall be entitled to all fines imposed and collected for said vio-
lation.
Sect. 56. Every mayor, alderman, selectman, city marshal, deputy- PuWio officers
mar.shal, sheriff, deputy-sheriff, ])olice officer, and constable, who has gon"uecSiy
infonnation that any intoxicating liquors are kept or sold in any tent, selling liquor at
shanty, hut, booth, stall, or similar place for selling refreshments, in any fuls.'&c!" '''
public place on or near the grounds of any cattle show, agricultural isos, 215, § 31.
exhibition, military muster, or public gathering of any kind, shall seize
such liquor and the vessels in which it is contained, and aiTcst the keeper
of such place, and take him as soon as maybe before some justice of the
peace or police court, with the liquor and vessels so found and seized,
and make complaint for the arrest and trial of such person and for the
448
INTOXICATING LIQUORS — UNLAWFUL SALES, &c. [ChAP. 86.
Persons con-
victed under
this chapter to
recognize, S:c.
1855, 2!5, § 33.
rases under
tliis eliapter to
tiike precerleuce
in courts, &c.
XoL pros, not
to be entered,
nor continuance
granted, ex-
cept, &c.
1.S5.5, 215, §35.
G Gray, 35J.
Kecogfnizances
to be put in suit
within sixty
days.
1855,215, §30.
Liquors wlien
common nui-
sances.
1*55, 215, §.37.
1 Gray, 27.
Payment for
liquor ille_y;.illy
sold to be" «-ith-
out considera-
tion, &c.
Actions for
price not main-
tainable, &c.
1855, 215, §37.
1 Gray, 541.
3 Gray, 51i0.
13 Gray, 73.
Officers execut-
ing warrants
protected. Are.
Penalty Tor neg-
lecting tu serve
warrants, Are.
1855, 216, § 38.
1 Gray, 47.
seizure and confiscation of such liquors, according to the |irovisious of
this chapter.
Sect. 57. Whoever is convicted of any oifenee under this cha])ter, in
addition to the punishment lierein prescribed, sh:dl be required by the
court or magistrate before wliom lie is convicted, to recognize to the
commonweahh in a sum not less than one thousand nor more than two
thousand dollars, that he will not, within one year from the time of the
conviction, violate any ]irovision of this chapter or any law of this com-
monwealth relating to the manufacture and sale of intoxicating liquor,
and shall stand committed until he enters into such recognizance.
Skct. 58. All cases under this chapter, whether by action, indict-
ment, or comjilaint, which come before any court by original entry or
appeal, shall take precedence in said court of all other business except
those criminal cases in which the parties are actually impi'isoned await-
ing a trial; and tiie prosecuting officer shall not enter :\ tiol/e prosequi
or grant a continuance in any such case, before or after a verdict, except
where the purposes of justice may require it, to be shown upon a written
motion filed in the case on behalf of the defendant, or a written state-
ment filed by the prosecuting otHcer, stating the reason for a continu-
ance ; and he shall not enter a noHe pi-osequi except witli the concur-
rence of the court. In cases umler this chajjter before a justice of the
peace or ])olice court, no admission of the defendant except a plea of
guilty made in court shall be received on the trial without the consent
of the prosecutor.
Sect. 59. District-attorneys shall commence suits upon all recogni-
zances given under this chapter in their respective districts, within sixty
days after default entered of record, or after they have satisfactory evi-
dence of any act which should cau.se a forfeiture thereof; and no suit
on any recognizance shall be continued, unless for good cause satisiac-
tory to the court. But nothing herein contained shall prevent the com-
mencement of such suit after the expiration of said sixty days.
Sect. 60. All intoxicating liquors kept for sale, and the inqilcments
and vessels actually used in selling and keeping the same, contrary to
the provisions of this chapter, are declared to be common nuisances.
Sect. 61. All payments or compensations for spirituous or intox-
icating liquors sold in vi(jlation of law, whether in money, labor, or
personal property, shall be held to have been received without con-
sideration, and again.st law, equity, and good conscience. No action of
any kind shall be had or maintained in any court for the price of any
liquor sold in any other state for the purpose of being brought into
this commonwealth to be here kept or sold in violation of law, under
such circumstances that the vendor would have reasonable cause to
believe that the purchaser entertained such illegal puqiose ; and all
bills of exchange, promissory notes, and other securities for and evi-
dences of debt whatsoever, given in whole or in ])art for the price of
liquor sold in violation of this chapter, shall be void against all persons
holding the same with notice of such illegal consideration, either direct
or implied by law.
Sect. 62. No action shall be had or maintained against nny sheriiF,
deputy-sheriff, chief of police, deputy-chief of police, or constable, or
their assistants, for executing any warrant or order issued under this
chapter by any justice or court competent to try the same ; nor shall
an action be had or maintained against any officer for seizing, detain-
ing, or destroying any intoxicating liquor, or the vessels containing it,
unless such liquor and vessels were legally ke]it by the owner thereof.
If a sheriif, chief of police, or deputy-chief of police, marshal, constable,
or other officer, to whom any warrant, process, or precept, jirovided for
in this chapter, is directed, neglects or refuses to serve and execute the
s;une, he shall be fined not less than three hundred dollars and not
Chap. 86.] intoxtcating liquors — forms. 449
exceeding one tliousand dollars, and it shall be a sufficient cause for indemnity,
removal or dismissal from office. For any loss or damage arising to ™'"^° claimed,
him, without fault or negligence on his part, in consequence of obe-
dience to any precept, process, or warrant aforesaid, duly served,
indemnity, if claimed, shall be claimed of the commonwealth after the
loss or damage sustained, and in no other manner.
FORMS OF PKOCEEDINGS.
Sect. 63. The following forms may be used in prosecutions under Forms of pro-
this chapter, and, if substantially followed, shall be deemed sufficient ^'^rJ'af-'j.
to fully and plainly, substantially and formally, describe the several ^' '
offences in each of them set forth, and to authorize the lawful doings
of the officers acting by virtue of the warrants issued in substanti^il
conformity therewith ; but this shall not be so construed as to prohibit
the use of other suitable fonns.
Form of a Complaint for keeping intoxicaiing liqttor for sale, under section thirty-four. Complaint for
kifi)iug liquor
LOMMONWSAXTH OF MASSACHUSETTS. for eale.
M , S3.
To N. C, Esquire, one of the justices of the peace -nithin and for the county of
M .
J. S. of L , in the county of M , in behalf of the commonwealth of Massa-
chusetts, on oath complains that D. E., of said L , on the day of , in
the year eighteen hundred and , at said L , did keep intoxicating liquor
■n-ith intent to sell the same in this commonwealth, he, the said D. E., not being au-
thorized to sell the same in said commonwealth for any purpose under the provisions
of chapter eighty-six of the General Statutes of this conimonweaUh or by any legal
authority whatever, against the peace and contrary to the form of the statute in such
cases made and provided. WTierefore the said J. S. prays that a warrant may be issued
for the arrest of said D. E., and that he be dealt with as to law and justice may apper-
tain. J s .
Keceived and sworn to, the day of , in the year eighteen hundred and
Before N C , Justice of the Peace.
Form of Warrant to arrest the party accused on the foregoing Complaint. Warrant to ar-
rest.
Commonwealth of Massachusetts.
M , 89.
Pj^ g 1 To the sheriff of any county in the state, or either of his deputies, or either
'■ ' '' constable of any town in the county of M .
Greeting :
In the name of the commonwealth of Massachusetts, you are hereby required forth-
with to apprehend D. E. of L , in said county of M , (if he may be found with-
in your precinct,) who stands charged by the complaint of J. S., upon oath, with the
offence of keeping intoxicating liquors, with intent to sell the same in this common-
wealth, contrary to law, and bring him before the subscriber, or some other justice of
the peace in said county of il , to be dealt w ith as to law and justice may apper-
tain.
You are also required to summon (Here insert the names of the witnesses) and
the complainant, to appear and give evidence of what they may know touching the
matter of said complaint, at the time and place you have said D. E. before either of
said justices for trial. Hereof fail not, and make due return of your doings herein.
Witness my hand and seal, at said L , in the year one thousand eight hundred
and -
N C , Justice of the' Peace.
Farm of Mittimus for keeping intoxicating liquors for sale under section thirty-four. Mittimus.
Commonwealth of Massachusetts.
M , ss.
rj_ g 1 To the sheriff of the county of M , his deputies, the constables of the
l- ■ 'J town of L , and the keeper of the Jail in C , in said county.
Whereas D. E. of L , in said county, now stands convicted before me, the sub-
scriber, one of the justices of the peace in and for said county of M , of keeping
intoxicating liquor at said L , on the of in the year eighteen hundred
and , with intent to sell the same in this commonwealth, he not being then and
there authorized so to sell the same under the provisions of chapter eighty-six of the
38* 57
450 INTOXICATING LIQUORS FORMS. [ChAP. 86.
General Statutes of this commonwealth, or by any lawful authority whatever ; for which
offence he, the said D. E., is sentenced by lue, the said justice, to pay a tine of ten
dollars to the use of the commonwealth, and costs of prosecution, taxed at dol-
lar and cents, and to be imprisoned twenty days in the house of correction in
C , in said county.
We therefore command you, said sheriff, deputies, and constables, and each of you,
forthwith to convey the defendant, D. E., to the house of correction in C , in the
county aforesaid, and to deliver him to said keeper. And you, the keeper, are, in like
manner, commanded to receive the defendant, D. E., (whom we herewith send,) into
your custody in said jail, there safely to keep him for twenty days, and to keep him
twenty days longer unless said line and costs are sooner paid, or until he be otherwise
discharged by due course of law.
Witness my hand and seal at aforesaid, the day of , in the year
eighteen hundred and
N C , Justice of the Peace,
Complaint to Form of Complaint to search for intoxicating liquor, under section forty-tvio*
Commonwealth of Massachusetts.
M , ss.
To N, C, Esquire, a justice of the peace within and for the county of M .
J. S., and L. P., both of B , in said county of M , and both being of full age,
and competent to testify, in behalf of the commonwealth of Massachusetts, on oath,
complain that they have reason to believe, and do believe, that intoxicating liquors, to
wit :
(Here describe the liquors, as a certain quantity of rum, being about, and not ex-
ceeding, gallons ; a certain quantity of gin, being about, and not exceeding,
gallons, &c., according to the facts) on the day of , in the ye.ir
one thousand eight hundred and , were, and still are kept and deposited by
D. E., of said B , in a certain , situate
(Here describe the building or other place, with particulars of its location, sufficient-
ly to identify it)
in said B , and occupied by said D. E., and which liquors are intended by said
D. E. for sale in this commonwealth, said D. E. not being authorized to sell the same
in this commonwealth, or to manufacture or keep the same for sale, for any purpose
under the provisions of chapter eighty-six of the General Statutes of this common-
wealth, or by any other legal authority whatever, against the peace of the common-
wealth and the form of the statute in such case made and provided ; and said com-
plainants pray for a warrant to search said , described as aforesaid, for said
liquors, and that the same may be declared to be forfeited, and that said D. E., and all
other persons claiming an interest in said liquors, may be summoned to appear before
said justice, or some other justice of the peace or court having jurisdiction of the case,
to show cause, if any they have, why said liquors should not be declared forfeited.
(If the place intended to be searched be a dwelling-house, and no tavern, store,
grocery, eating-room, or place of common resort be kept therein, the complaint should
conclude as follows : — )
And I, J. S., one of the above-named complainants, on oath, say that I have reason
to believe, and do believe, that intoxicating liquor, such as is above mentioned, has
been sold in the house above mentioned, (or has been taken from the house above
mentioned for the jnirpose of being sold,) by the occupant of said house, or with the
consent and permission of the occupant of said house, contrary to law, within one
month next before this day, and that said liquor above mentioned is now kept in said
house for sale by said D. E., contrary to law j and my belief aforesaid is founded on
the following facts and circumstances : —
(Here let such facts and circumstances be stated.) J S .
Received and sworn to at said B , before me, this day of , in the year
one thousand eight hundred and ; and it appears to me that there is probable
cause to believe the foregoing complaint to be true.
N C , Justice of the Peace.
Search warrant Form of Warrant to search a dwelliiig-house and seize liquors therein unlawfully kept
for sale.
Commonwealth of Massachijsetts.
M , ss.
r , To the sheriff of our county of M , or either of his deputies or any con-
^ ' '' stable of the town of B , in said county.
Greeting :
Whereas J. S. and L. P., both of said B , and both of full age, and competent
to testify, on the day of , in the year one thousand eight hundred and ,
at said 13 , in behalf of the commonwealth aforesaid, on oath, complained to the
■undersigned, one of the justices of the peace within and for said coimty of M , that
Chap. 80.] intoxicating liquors — forms. 451
they have reason to believe, and do believe, that on the day of , in the year
one thousand eight hundred and , at said B- , intoxicating liquors, to wit : —
(Here describe the liquors, as in the complaint)
are kept and deposited by D. E., of said B , in a certain , situate
(Here describe the building or other place, as in the complaint)
in said B , and occupied by said D. E. as a , and that said liquors were, and
are, intended for sale by said D. E., in this commonwealth, contrary to law — he, said
D. E., not being then and there authorized to sell or manufacture, or keep such liquors
for sale in this commonwealth for any purpose under the provi?<ions of chapter eighty-
six of the General Statutes of this commonwealth, or by any other legal authority what-
ever, whereby said liquors have become liable to be forfeited.
(In case the place to be searched be a dwelling-house, and no tavern, store, grocery,
eating-room, or place of common resort, be kept therein, the warrant should contain
the following clause : — )
(And J. S., one of the said complainants, has duly made oath that he has reason to
believe, and doth believe, that intoxicating liquors, such as are mentioned in the com-
plaint, have been ulegally sold in said hou.-e, within one month last past, by the occu-
pant thereof, (or with the permission and consent of the occupant thereof, or have
been taken from said house for the purpose of being sold,) contrary to law, within
one month last past, and that such liquors are kept and deposited in said house by
said D. E., and intended for sale in this commonwealth, contrary to law, and has, in
his said oath, stated the following facts and circumstances on which said belief was
founded.)
(Here let the facts and circumstances be repeated, as in the complaint.) And said
complainants have also prayed that due process may issue to search for said liquors,
and that such further proceedings may be had in the premises as to law and justice in
that behalf may appertain ; and whereas it appears to me, the subscriber, on the com-
plaint aforesaid, that probable cause has been shown for the issuing of a warrant of
search thereui)on ; —
These, therefore, are to require you in the name of the commonwealth, taking with
you proper assistants, forthwith to enter the herein above described, and
make diligent and careful search for all the liquors herein above described, and, if
such liquors are found therein, to seize and convey the same, and the vessels which
contain such liquors, to some place of safety, and safely keep the same, to await the
final action and decision of the court upon said complaint.
Herein fail not, and make due return of this warrant, with your doings thereon.
Witness my hand and seal at said B , this day of , in the year one
thousand eight hundred and
N C , Justice of the Peace.
(In a warrant for searching any other place besides a dwelling-house, that jiart in
the foregoing form which relates to the means of knowledge of the complainant that
a sale had been made in the building should be omitted.)
Warrant to officer to serve notice under sectio^is forty-six and forty-seven, >Varr.'int to
Commonwealth of Massachusetts. turiiabie befo'rc
M , ss. a justice.
r 1 To the sheriff of our county of M , or either of his deputies, or any
'■''■■' constable of the town of B , in said county : —
(If the seizure be made in a citj-, the warrant may be directed to the city marshal
and other city officers authorized to serve it.)
You are hereby commanded to serve the annexed notice, by delivering an attested
copy thereof into the hands of D. E. of B , in the county of M , or lea\'ing an
attested copy thereof at his usual place of abode, and also by posting up another
attested copy thereof on
(Here describe the building in which the liquor was seized, if it be found in any
building ; but if not found in any building, say in some public place in said town of
B ,) and also by publishing an attested copy thereof twice (or more times if thought
advisable) in the a newspaper published in said B ; and you are hereby com-
manded to serve said copy on said D. E. and to post another copy as above directed,
and to publish the copy of said notice the first time, at least fourteen days before the
day of , in the year one thousand eight hundred and
Hereof fail not, and make due return of this warrant, with your doings thereon.
Witness my hand and seal at B , this day of , in the year one thou-
sand eight hundred and
N C , Justice of the Peace.
Form of Notice under sections forty-six and forty-seven, to he annexed to the foregoing Form of notice.
Warrant, and served as therein directed.
To D. E., of B , in the county of M , and to any and all other persons
claiming any interest in (twenty gallons of rum in a barrel, two gallons of gin in a
demijolm, and in said barrel and demijohn, or as the case may be,) which, by virtue of
452
INTOXICATING LIQUORS — FORMS.
[Chap. 86.
a warrant issued by me, have been seized (at the dwelling-house of said D. E., in said
B , or as the case may be,) on the day of , in the year eighteen hun-
dred and , the value of which rum and gin, with the vessel^ containing them,
does not in my opinion exceed twenty dollars.
You are hereby required to appear at
(Here name the place appointed for the hearing)
in said B , at o'clock M., on the day of in the year one
thousand eight hundred and , to answer to the complaint against said liquors
and the vessels containing them, and for trial, and to show cause, if any you have,
■why said liquors and the vessels contaijiing them should not be forfeited for being
kept for sale by said D. E., in violation of the laws of this commonwealth.
Witness my hand at B , this day of , in the year one thousand eight
hundred and j^ (, ^ j^^^.^^ ^^ ^-^^ p^^^^_
Warrant to
serve notice re-
turn-ible before
superior court.
Warrant to officer to serve notice under section fifty-four.
Commonwealth of Massachusetts.
M , ss.
C 1 To the sheriff of our county of M , or either of his deputies, or any
L ■ ■-! constable of the town of B , in said county . —
(If the seizure be made in a city, the warrant may be directed to the city marshal
and other city officers authorized to serve it.)
You are bereljy commanded to serve the annexed notice, by delivering an attested
copy thereof into the hands of D. E., of B , in the county of M , or by leav-
ing an attested copy thereof at his usual place of abode, and also by posting up
another attested copy thereof on
(Here describe the building in which the liquor was seized, if it be found in any
building ; but if not found in any building, add, in some public place in said town of
B ,) and also by publishing an attested copy thereof twice (or more times if the
magistrate thinks it necessary) in the , a newspaper published in said B ;
and you are licreby commanded to serve said copy on said D. E., and to post another
copy as above directed, and to publish the copy of said notice the first time, at least
fourteen days before the day of , in the year eighteen hundred and
Hereof fail not, and make return of this warrant, with your doings thereon, before
the justices of our superior court next to be holden at C , in and for our county
of M , on the day of , in the year eighteen hundred and
Witness my hand and seal at said B , this day of , in the year one
thousand eight hundred and
N-
Justice of the Peace.
Form of notice. Form of Notice under section fifty-four, to he annexed to the foregoing Warrant.
To D. E., of B , in the county of M , and to any and all other persons
claiming any interest in (one hundred gallons of brandy in two hogsheads, and two
gallons of gin in a demijohn, and in said hogsheads and demijohn, or as the case may
be,) which, by virtue of a warrant issued by me, have been seized (at the dwelling-
house of said D. E., in said B , or as the case may be) on the day of ,
in the year one thousand eight hundred and , the value of which brandy and
gin, with the vessels containing them, in my opinion, exceeds twenty dollars.
You are hereby required to appear before the justices of the superior court next
to be holden at C , in said county of M , on the day of next, to
answer to the complaint against said liquors and vessels containing them, and for trial,
and to show cause, if any you have, why said liquors and vessels should not be for-
feited for being kept for sale by said D. E., in violation of the laws of this common-
wealth.
Witness my hand and seal at B , this day of , in the year one thou-
sand eight hundred and
N-
-, Justice of the Peace.
Warrant for de- Form of Warrant to deliver liijuor, suitable for chemical, medicinal or mechanical purposes,
livery of liquor ' • . > . »■ ■. ,,. y-_ . i
to town agent,
or destruction
thereof.
to ioion age?tt, and to destroy liquor unsuitable for such purposes.
Commonwealth op Massachusetts.
M-
To L. M., deputy-sheriff, (here name the officer having the liquor in custody,)
and S. T., a person appointed by N C, a justice of the peace for
t'" ^'J said county, to witness the destruction of certain intoxicating liquors.
Greeting :
Whereas certain intoxicating liquors, to wit, (ten gallons of gin in a barrel, and
four gallons of port wine in a demijohn, or as the case may be,) have been declared
forfeited by me, the subscriber, one of the justices of the peace in and for the county
of M , for having been kept by D. E., of B , in said county of M -, at said
B , on the day of , in the year eighteen hundred and , with intent
Chap. 87.] scppressiox op common nuisances.
453
to sell the same in this commonwealth, he not being then and there authorized so to
sell the same, under the provisions of chapter eighty-six of the General Statutes of this
comnionivealth, or by any lawful authority whatever : whereupon I declared and
adjudi^cd among other things, that said liquors, with the vessels in which they are con-
tained, were forefeited to the commonwealth : and whereas, after hearing the CNndence
in the case, and examining said liquors, I was of opinion that a part of said liquors,
to wit, said (ten gallons of gin.) are suitable for medicinal purposes, and that the rest
of said liquors, to wit, said (four gallons of port wine,} aie not suitable for chemical,
medicinal, or mechanical purposes : —
Now, I hereby command you, said L. M., to deliver said (ten gallons of gin) to
XJ. T., agent of said town of B , (or such agent as may be appointed.) for the sale
of spirituous liquors, to be by him sold according to law, and the net proceeds paid over
to the treasurer of the commonwealth ; and I fiirther order you, said L. M., to de-
stroy said (four gallons of port wine,) in the presence of S. T., a person appointed by
me to witness the destruction thereof, and make return of your doings on this pre-
cept. And we command you, said S. T., to attend and witness the destruction there-
of, and to join said I,. M., in attesting the fact of the destruction of said liquor, in the
return on the back of this precept.
And make return of this precept, with your doings thereon. AVitness my hand and
seal, at said B , the day of , in the year eighteen hundred and
N C , Justice of the Peace.
CHAPTER 87
OF THE SUPPRESSION OF COMMON NUISANCES.
Section
1. Burnt or dangerous buildings adjudged
nuisances, liow disposed of.
2. Owner aggrieved may apply for jury.
3. Verdict of jury, &c,
4. Costs.
5. Nuisance may be abated, &c,
6. Buildings, resorted to for prostitution, &c.,
nuisances.
Section
7. Buildings, resorted to for prostitution, pen-
alty for keeping.
8. Such use of premises by tenant to avoid
lease, &c.
9 Penalty on landlord for letting, &c., build-
ing for such purposes.
10. Booths, &c., used for gaming, &c., near
public shows, &c., how removed.
Section 1. In nny city or town which has adopted ch.ipter four Burnt or dan-
hundred and sixty-nine of the statutes of eighteen hundred and fifty- nKra"(iju"'itd
five, or which shall adopt this and the four following sections, at a legal nuisances,
meeting of the city council or inhabitants of the town, if the mayor and oT'' "''^'""'
aldermen or selectmen, after due notice in writing to the owner of any 1655, -wo, §§i,6.
burnt, dilapidated, or dangerous building, and a hearing of the matter,
adjudge the same to be a nuisance to the neighliorhood, or d;ingerous,
they may make and record an order prescribing such disjiosition, altera-
tion, or regulation, thereof as they deem necessary ; and thereujion the
city or town clerk shall deliver a co])y of the order to a constable, who
shall forthwith serve an attested copy thereof upon such owner, and
make return of his doings thereon to said clerk.
Sect. 2. Any owner aggrieved l)y such order may within three days owner ag-
of the service thereof u]5on him ajijdy for a juiy to the superior court, if nTrfor''juiT *''
sitting in the countv, or to anv justice thereof in vacation. The court isss, 400, § .■!.
or justice shall issue a warrant for a jury, to be empanelled by the sheriff """''■'<'■
within fourteen days from the date of the warrant in the manner pro-
vided in chapter forty-three relating to highways.
Sect. 3. The jury may affirm, annul, or alter, such order; and the Verdict of jury,
sheriff shall return the verdict to the next tenn of the court for accent- *';•- ,,.„ , .
ance, and, being accepted, it shall take efiect as an original order.
Sect. 4. If the order is affirmed, costs shall be taxed against the Costs,
applicant ; if it is annulled, the a])plicant shall recover damages and costs ''^^' '"'^' ^'•
against the city or town ; if it is altered in jiart, the court may render
such judgment as to costs as justice shall require.
Skot. 5. The m.-iyor and aldermen or selectmen of any city or town Nuisance may
454
LICENSES AND REGULATIONS OP POLICE. [ChAP. 88.
I)e al)ated, &c.
1841), 211.
1855, 409, § 2.
Buildings re-
j^orted to for
prostitution,
&c., iiuiHimceB.
1855, 405, § 1.
7 Gray, :t28.
13 Gray, 2li.
penalty for
keeping.
1855, 405, § 3.
Such use of
premises by
tenaut to avoid
lease, &e.
1855, 405, § 3.
Penalty on
landlord for let-
ting, ttc., build-
ing for such
purposes.
1855, 405, § 4.
Booths, Ac.,
used for gam-
ing, &c.,near
pxiblic shows,
&c., how re-
moved.
1850, 291.
1851, 91.
shall have the same power and authority to abate and remove any such
nuisance, as are given to the board of health in sections eight, nine, and
ten, of chapter twenty-six.
Sect. 6. All buildings, places, or tenement.s, resorted to for prostitu-
tion, lewdness, or illegal gaining, or used lor the illegal keeping or sale
of intoxicating liquors, shall be deemed common nuisances.
Sect. 7. Whoever keeps or maintains such common nuisance shall
be punished by fine not exceeding one thousand dollars, or imprison-
ment in the county jail not exceeding one year.
Sect. 8. If a tenant or occupant, under a lawful title, of any build-
ing or tenement, uses such premises, or any part tliereofj Ibr any of the
purposes enumerated in section six, such use shall annul and make void
the lease or other title under which he holds, and, without any act of
the owner, shall cause the right of possession to revert and vest in such
owner, and the owner may, without process of law, make immediate
enti-y upon the premises, or he may avail himself of the remedy pro-
vided in chajiter one hundred an<l thirty-seven.
Sect. 9. Whoever knowingly lets a building or tenement owned by
him, or under his control, for any purpose enumerated in section six, or
knowingly permits such building or tenement, or any part thereof, while
under his control, to be used for such pui'}iose, or after due notice of any
such use omits to take all reasonable measures to eject therefrom the
persons occu])ying the same as soon as it can lawfully be done, shall be
deemed guilty of aiding in the maintenance of such nuisance, and pun-
ished by line of not less than one hundred nor more than one thousand
dollars, or inijjrisonment in the jail not less than thirty days, nor more
than si.x months.
Sect. 10. The mayor and aldermen or selectmen of any place, upon
complaint made to them under oath, that the complainant has reason to
believe, and does believe, that any booth, shed, or other temporary erec-
tion, situated within one mile of any muster-field, cattle-show ground,
or other place of public gathering, is used and occujiied for the sale of
spirituous or fermented liquors, or for the ])ur])ose of gaming, may, if
they consider the complaint well founded, order the owner or occujiaiit
thereof to vacate and close the same forthwith. If the owner or occu-
pant refuses or neglects so to do, the mayor and aldermen or selectmen
may forthwith abate such booth, shed, or erection, as a nuisance, and
pull downi or otherwise destroy the same, in any manner they choose, or
through the agency of any force, civil or military.
CHAPTER 88.
OF LICENSES AND MUNICIPAL REGULATIONS OF POLICE.
ijtnholdeks .vnd common victualllebs.
Section
1. Penjilty on innholder without licenBe.
2. County commissioners, &c., may grant li-
censes, specifying place, &c.
3. Licenses to expire on first of April^^
4. Clerks of commissioners to transept lists
to selectmen.
5. Persons applying to commissioners to i>ro-
duce certificjite from selectm<*u.
6. Applications, how made.
7. Provisions in case selectmen refuse certifi-
cate.
E. Innholders to entertain travellers, &c.
Section
9. Innholders, penalties on, for refusing, &c.
10. linw liable for loss of property of guests.
11. iu ease of loss by fire, &c.
12. iu cases of loss, may show negligence of
guests, &c.
13. Riglits, &c., of common victuallers.
14. Innholders, A-c, to put up signs.
15. Punishment if fines are not paid.
16. on second conviction.
17. on third conviction.
18. Innholders, &c., not to give credit to stu-
dents, .tc.
19. violating preceding section, &e.
Chap. 88.] licenses, &c. — innholders and victuallers.
455
Sectiox
20. Peualty.
til. Commissioners, &c., not required to license.
Xo fee.
22. Laws rehiting' to innholders, &c., to be fur-
nished persons licensed.
INTELLIGENCE OFFICES.
23. lBtPllig;cnce office, penalty for keeping with-
out lii-eiise.
24. Si.'lectmen may license.
JUNK, OLD METALS, AND SECOND-HAND
AKTICLES.
25. Licenses to deal in old, &c., articles.
2(1. to designate place of dealing, Ac.
2". penalty for dealing without, &c.
28.
PAWNBROKERS.
Pawnbrokers to bo licensed.
29. Form of license, &c.
30. Peualty for carrying on businesB without
license.
STABLES.
31. Livery stables in maritime towns to be
licensed.
32. Penalty for unauthorized erection or use of
stables.
STEAM-ENGINES, FURNACES AND BOILERS.
33. Steam-engines and furnaces not to be used
in certain cases without license.
34. Public notice of applications for license, &c.
35. Municipal ofliccra may regulate furnaces,
stfiini-cny^ini'w, &c.
36. Appeal, and proceedings thereon.
37. Court may rcstniin use while appeal is
pending.
38. Vi'i'dii-t of jury may affirm, &c., order. Ac-
cept-ance of verdict.
39. Kecovery of costs.
40. Engines, &c., when common nuisances, &c.
41. Selectmen, .te., may examine steam-engines
and prohibit use.
42. may remove as nuisances.
43. Steam-boilers not to be made or used, &c.,
without safety plugs.
44. Penalty for removing plugs.
45. for making, &c., boilers without plugs.
ROCKETS, GUNPOAVDER, AND OTHER EXPLO-
SIVE SUBSTANCES.
40. Penalty for selling rockets, &c., without
license.
47. for firing, &c., without license.
Section
48. Towns, &c., may order how gunpowder,
gun-cotton, &c., shall be kept.
49. Justices to issue warrants for searching
places where gunpowder, &c., is suspected
to be unlawfully kept.
50. Penalty for unlawfully keeping gunpowder,
&c.
51. Towns may regulate storage and sale of
camx^hene, &c.
DOGS.
52. Dogs to be registered and licensed.
53. Clerk to issue license. Treasurer to keep
account, &c.
54. to post list, Ac.
55. Dog may be licensed at any time, Ac. Re-
moval.
5fi. Penalty for neglect.
57. for removing collar, Ac. ; for exposing
poiscms, Ac.
58. Dogs unlicensed may be killed, Ac. Bounty.
59. dimiages by.
f)0. when any person may kill, Ac.
Gl. dangerous, to be confined by owner, or
killed.
62. alter notice, any person may kill.
63. Liability of owner in case, Ac.
64. Towns liabh' for loss in certain cases ; may
recover of owner.
65. Person damaged to have choice of remedy.
66. Officers to kill unlicensed dogs. Penalty
for neglect.
67. Towns may make by-laws, Ac. Fees for
license.
68. Fines, Ac, how recovered.
BILLIARD TABLES AND BOWLING ALLEYS.
69. Selectmen, Ac, may grant licenses to keep
billiard tables, Ac, for hire, Ac.
70. Penalty for keeping tables, Ac, without li-
cense.
71. for admitting minors to, Ac.
72. Officers may enter billiard rooms, Ac, to
enforce laws.
73. Penalty for erecting, Ac, bowling alley.
THEATRICAL EXmBITIONS, PUBLIC SHOWS,
MASKED BALLS, AC.
74. Theatrical exhibitions, Ac, may be licensed.
75. penalty for setting up, Ac, contrary to
law.
70. at which lager bier, Ac, is sold.
77. Penalty for getting up, Ac, masked ballSjAc.
78. Justices may require sureties of offenders.
79. Peualty for exhibiting fighting birds, Ac.
INNHOLDERS AND COMMON VICTUALLERS.
Section 1. Whoever presumes to be an innliolder or common vict-
ualler, without being licensed as such according to the provisions of this
chapter, shall forfeit one hundred dollars.
Sect. 2. The county commissioners may grant licenses to as many
persons to be innholders or common victuallers in the several towns
within their respective jurisdictions as they think the public good re-
quires; and the mayor and aldermen of the several cities may in like
manner grant licenses to innholders and common victuallers in their
respective cities. Every such license shall s])ecify the street, lane, alley,
or other place, and the number of the building, or some other particular
description thereof, where such person shall exercise his employment;
and the license shall not j^rotect a person exercising his employment in
any other place than that specified in the license.
Penalty on
imiliDlder with-
out license.
R. S. 47, § 1,
6 Greenl. 412.
24 Pick. 352.
Comity eom-
miprioners, Ac
may grant li-
consL's, specify-
ing place. Ac.
U.S. 47, §§17,18.
1850, 29y,
3 Pick. 281.
456
UCENSES, &c. — INNHOLDERS AND VICTITALLERS. [ChAP. 88.
T.i'onses to ex-
I'lrf on first
o/ April.
l:. .S. 47, § 19.
riorkF of com-
!-iisnioiier!^ to
trimsmit lists to
t'llCL'tmen.
l:. S. 47, § 22.
I'ersons apply-
i is^ to eommis-
shmers to pro-
duce certificate
frOTn select-
I'leu.
II. S. 47, § 23.
Applications,
Jiow made.
H. S. 47, § 24.
Provisions in
case selectmen
refuse certiti-
ejite.
II. S. 47, § 25.
Innholders to
entertain trav-
ellers, &c.
U. S. 47, § 5.
penalties on,
for refusinf^,&c.
U. S. 47, § S.
how liable for
loss of property
of j^nests.
l«5:l, 405, § 1.
!• Pick. 2H4.
7 Cusll. 417.
in case of loss
by fire, &c.
1853, 405, § 3.
9 Pick. 2»4.
in cases of
loss, may show
neglii^ence of
guests, &c.
IHoS, 405, § 3.
Eights, &c., of
Sect. 3. Such licenses shall expire on the first day of April in each
year ; but a license may be granted or renewed at any time during the
preceding month of March, to take effect from said first day of Apiil;
and after that day they may be granted for the remainder of the year,
when the officers authorized to grant the same deem it expedient.
Sect. 4. The clerk of the county commissioners shall seasonably,
before the time for granting licenses in each year, transmit to the select-
men of every town within the jurisdiction of such commissioners, a list
of the persons in such town who were licensed as innholders or victuallers
the preceding year.
Sect. 5. No such license shall be granted or renewed to any person
by the county commissioners unless he produces a certificate from the
selectmen of tlie town for which he applies to be licensed, in substance
as follows, to wit : — -
We, the subscribers, a majority of the selectmen of the town of , do hereby
certify that has applied to us to be recommended as (here expressing the employ-
ment and a particular description of the place for which the license is ap])Ued for) in
said town, and that, after mature consideration had thereon at a meeting held for that
purpose at which we were each of us present, we are of opinion that the public good
requires that the petition of said be granted, he being to the best of our knowl-
edge and belief a person of good moral character.
Sect. 6. Wlioever produces such certificate shall be he.ard and his
application decided upon, either on a motion made orally by himself, or
his counsel, or upon a petition in writing, as he elects.
Sect. 7. If the selectmen of any town unreason.ably neglect or refuse
to make and deliver such a certificate, either for the original granting or
the renewal of a license, the ))erson aggrieved thereby may ajijily for a
license to the commissioners, first gi^dng twenty-four hours' notice to a
majority of said selectmen of his intended application, so that if they
see fit they may appear and object thereto ; and if on such application
it appears that the selectmen did unreasonably neglect or refuse to give
such certificate, and that the public good requires that the license be
granted, the commissioners maj^ grant the same.
Sect. 8. Every innliolder shall at all times be furnished with suitable
provisions and loilging ibr strangers and travellers, and with stable room,
ha)-, and provender, for their horses and cattle ; and if he is not so pro-
vided, the county commissioners or mayor and aldermen by Avhom the
same was granted may revoke liis license.
Sect. 9. If an innliolder when requested refuses to receive and make
suitable provisions for strangers and travellers, and their horses and
cattle, he shall be jiunished by fine not exceeding fifty dollars, and shall
by order of the court be deprived of his license ; and the court shall
order the sherifl' or his deputy forthwith to cause his sign to be taken
down.
Sect. 10. Innholders shall not be liable for losses sustained by their
guests, except of wearing a|)])arel, or personal baggage, and money
necessary for travelling ex]ienses and personal use, unless u]ion delivery
or offer of delivery by sucli guests of their money, jewelry, or other
property, to the innliolder, his agents, or servants, for safe custody.
Sect. 11. In case of loss by fire or overwhelming force, innkeepers
shall be answerable to their guests only for ordinary and reasonable care
in the custody of their 1)aggage or other property.
Sect. 12. An innliolder against whom a claim is made for loss sus-
tained by a guest, may in all cases show that such loss is attributable to
the negligence of tlie guest himself, or to his non-compliance with the
regulations of the inn : provided, such regulations are reasonable and
proper, and are sliown to have been duly brought to the notice of the
guest by the innholder.
Sect. 13. Every common victualler shall have the rights and pri\i-
Chap. 88.] licenses, &o. — intelligence offices, junk, &c. 457
leges and be subject to the duties and obligations of innholders, except oommoa vict^
that he shall not be required to furnish lodging for travellers, nor stable i^'s."^!!;, § o.
room, hay, or )iro\ender, for horses and cattle.
Sect. 14. Everj- innholder and common victualler shall at all times innhoUiorsAc-,
have a board or sign affixed to his house, shop, cellar, or store, or in some jj' i^"yjP,'!i^^-
conspicuous place near the same, with his name at large, and the employ-
ment for Avhieh he is licensed, thereon, and upon neglect thereof shall
forfeit twenty dollai-s.
Sect. 1.5. Whoever is convicted under the preceding provisions, and Punisiimpnt, if
fails to pay the fine and costs awarded against hun, may be imprisoned {",",1"'''''"*'
in the jail for a time not exceeding ninety days, at the discretion of the H- *• -t?. §,27.
court or justice before whom the trial is had. '"''' ''"'''• ^^•
Sect. 16. Whoever licensed under the preceding provisions is con- on second
victed a second time of a breach of any of said jirovisions, shall in i™-".^!)'"!',
addition to the penalties before provided be adjudged to have forfeited
his license.
Sect. 17. Whoever is convicted a third time of a breach of any of the on tiiird con-
preceding provisions, shall in addition to the penalties before provided ij.' s""f , § 29
be punished by imprisonment in the jail not exceeding ninety days. itar, ■.'i'.', § 4.
Sect. 18. No innholder, tavern-keeper, retailer, confectioner, or innhoidcr8,&c.,
keeper of anv shop or house for the sale of drink or food, or any liverv ""•'"»■*■';
stable keeper tor horse or carnage Inre, shall give credit to any student <icnts, &o.
in an incorporated academy or other educational institution within this J'jj; 'm,\^.'
state. 1 i"i'-k- V-7. '
Sect. 19. No person shall be approved or licensed for either of the viointing pro-
empIojTiients aforesaid, if it apjiears that he has given credit contrary to 4"'.'"" ''™*"'"'
the provisions of the preceding section. k. s. ss, § 70.
Sect. 20. Whoever gives credit contrary to the provisions of section penalty. '
eighteen, shall forfeit a sum equal to twice the amount so unlawfully it.s. 23, 571.
trusted or credited, whether the same is paid or not. '^''' ''*■'*' 5 3-
Sect. 21. Nothing contained in this chapter shall be construed to Commission-
require the county commissioners or mayor and aldermen to grant either "q,,* ^J to'
of the licenses aforesaid, when in their opinion the public good does not li.cnfe.
require it. And when such license is granted, no fee shall be charged itssr.^ji', §2.
therefor.
Sect. 22. The secretary of the commonwealth shall cause a con- i.mvs niating
densed summary of all laws relating to innholders and common victual- iVTlhi'-'mr''-'
lers to be ])rinted for the use of the state, and shall sujiply county com- nisi'icii iiL-rsons
missioners and mayors and aldermen of cities therewith; who shall also Islrl'lli!;', §5.
fiirnish to each ])orson licensed by them a copy of such summary at the
time of granting the license.
intelligence offices.
Sect. 2-3. Whoever, without a license therefor, establishes or keeps intelligence or-
an intelligence office for the purjiose of obtaining or giving information jjj;*' !«""i*.y. fo''
concerning places of employment for domestics, servants, or other labor-
ers, exce])t seamen, or for the purpose of procuring or giving infoi-mation
concerning such persons for or to employers, shall pay a tine of ten dol-
lars for each day such office is so kept.
Sect. 24. The mayor and aldermen or selectmen of any city or town eeieetmen
may, for the purposes mentioned in the preceding section, grant licenses ""Is, liro,°§ 2.
to suitable jiersons for the term of one year, and may revoke the same at
pleasure. They shall receive one dollar for each license so granted.
JT7NK, OLD METALS, AND SECOND-HAND ARTICLES.
Sect. 25. The mayor and aldermen or selectmen of any city or town Licenses to deal
which has adopted by-laws therefor, may license suitable persons to be JJ^"'''' '^''•> "*•■
39 58
■]>iu-^ with-
out lirnise.
ItylS, '.TO, § 1.
458 LICENSES, &c. — PAWNBROKERS, STABLES, STEAM-ENGINES, &c. [ChaP. 88.
1839, 53, §§1,4.
License to
designate plane
of dealing, &c.
1839, 53, § 2.
penalty for
dealing with-
out, &c.
1839, 53, §§ 3, 4.
dealers in and keepers of sliops for the purchase, sale, or barter, of junk,
old metuls, or second-hand articles, within their respective cities and
towns.
Sect. 26. The license shall designate the place where the business is
to be carried on, and contain such conditions and restrictions as may be
prescribed by such by-laws, and shall continue iu force for one year
unless sooner revoked.
Sect. 27. Whoever not so licensed keeps a shop or is a dealer in
such city or town, or being licensed keeps such shop, or is such dealer,
in any other place or manner than that designated in his license, or
after notice to him that his license has been revoked, shall pay a tine of
twenty dollars for each ofl'ence.
Pawnbrokers to
be liccused.
1855, 121, §§ 1, 4.
Form of license,
1855, 121, §2.
Penalty for car-
rying on busi-
ness without li-
cense, ,tc.
1855,121, §§3,4.
PAWXBROKERS.
Sect. 28. The mayor and aldermen or selectmen of any city or
town, which has adopted by-laws therefor, may license suitable persons
to carry on the business of pawnbrokers, within their resjsective cities
and towns.
Sect. 29. The license shall designate the place where the business
is to bo carried on, contain such conditions and restrictions as may be
jjrescribed by such by-laws, and continue iri force one jear unless sooner
revoked.
Sect. .30. Whoever not being licensed carries on such business or is
concerned therein within such city or town, or being licensed carries on
such business or is concerned therein in any other place or manner than
that designated in his license, or after notice to him that his license is
revoked, shall pay a fine not exceeding fifty dollars for each offence.
Livery stables
in maritime
towns to be 11-
eensetl.
K. S. 5s, § 4.
1855, 49.
1 Gray, 1133.
Penalty for un-
authorized erec-
tion or use of
stables.
1851, 319.
1852, 129.
1853, 302.
STABLES.
Sect. 31. Whoever occupies or uses a building in any maritime
place for a livery stable, excejit in such part thereof as the mayor and
aldermen or selectmen shall direct, shall forfeit a sum not exceeding
fifty dollars for every month lie so oceu]>ies or uses such building, and in
like projiortion for a longer or shorter time.
Sect. 32. Wlioever erects, occupies, or uses, a building for a stable
for more than four horses, in any city or town, except in such part
thereof as the mayor and aldermen or selectmen direct, shall forfeit a
sum not exceeding fifty dollars for every month he so occupies or uses
such building, and in like proportion for a longer or shorter time. And
the supreme judicial court or any one of the justices thereof, either in
term time or vacation, may issue an injunction to prevent such erection,
occupancy, or use, without such direction.
STEAM-EXGIKES, FURNACES, AND BOILERS.
Steam-engines Sect. .83. No furnace for melting iron or making glass, and no
nott'obTused Stationary steam-engine designed for use in any mill for planing or
in certain cases s:iwiiig boards or turning wood, or in which any other fuel than coal is
Tfisj"', §Ti",ioi used to create steam, shall be erected or put up to be use<l in any city
1840, 91), §"§ 1, 3. or town by which the provisions relating thereto of cha]iter one hun-
dred ninety-seven of the statutes of eighteen hundred and forty-five or
chapter ninety-six of the statutes of eighteen hundred and forty-six
respectively have been adopted, or by which this and the seven follow-
ing sections shall have been adopted, at a legal meeting of the city
council of the city or the inhaliitants of the town called for that pur-
pose, unless the mayor and aldermen or selectmen thereof have granted
a license therefor, prescribing the j^lace where the building in which
Chap. 88.] licenses, &c. — steam-engines, furnaces, &c. 459
such steam-engine orfurn.aee is to be used shall be erectecl, the materials
and construction thereof^ with such regulations as to the height of flues
and protection against fire as they deem nece.ssary for the satety of the
neighborhood. Sucli license may be granted on a written application,
and shall be recorded in the records of the city or town.
Sect. 34. Upon application for such license the mayor and aldermen public notice of
or selectmen shall assign a time and place for the consideration of the ■'I'Diicatious foi-
1 1 /■ T 5 1 !• -1 ,• 1 • license, Ac.
same, and cause at least lourteen days public notice thereof to be given, isio, iw, §5.
at the expense of the applicant, in such manner as they may direct, in
order that all persons interested may be heard thereon.
Sect. 35. In any city or town by which chapter one hundred and Municipal offi-
ninety-seven of the statutes of eighteen hundred and forty-five has Il'iate i",'rnacef^
been adopted, or by which sections thirty-three to forty inclusive shall steam-cuijines,
have been adopted at a legal meeting of the city council of the city or isi's, 197, §§ 2-
inhabitants of the town called for that purpose, the mayor and alder- i"-
men or selectmen, alter due notice in writing to the owner of such
steam-engine or furnace, exce]it for making glass, erected or in use
therein before the time of such adoption, and a liearing of the matter,
may adjudge the same to be dangerous or a nuisance to the neighbor-
hood, and make and record an order prescribing such rules, restrictions,
and alterations, as to the building in which the same is constructed or
used, the construction and height of its smoke flues, with such other
regulations as they deem necessary for the safety of the neighborhood ;
and the city or town clerk shall dehver a co])y of such order to a con-
stable, who shall serve on the owner an attested cojiy thereof and make
return of his doings thereon to said clerk within three days from the
delivery thereof to him.
Sect. 36. The owner of a steam-engine or furnace who is aggrieved Appeal and pro-
by such order, may apjily to tlie superior court, or a justice thereof in „„" '"=" ' "'''
vacation, for a jury: and the court or justice sliall issue a warrant for a i»^5, 19-, §e.
jury to be empanelled by the sherift" in like manner as is provided in '
chajiter forty-three in regard to the laying out of highways. Such a])-
plication shall be made within three days after the order is served u]ion
the owner, and the jury shall be empanelled within lourteen days from
the issuing of tlie warrant.
Sect. 37. The court or justice, on erranting the aiiiilication for a jury. Court mayre-
. . . J . / f^ , -^ 11. . "^ * ' titnuu use while
may issue an injunction restraiinng the lurtlier use ol such engine or appeal is pcud-
furnace until the final determination of the a]iplication. "^j^ 197, §7.
Sect. 38. The jury may find a verdict eitlier aftirining or annulling verdict oCjury
the order in full, or making alterations therein ; which verdict shall be "I.([Lr'I*''Ac'cept-
returned by tlie sherifl' to the next term of the court for acceptance as "nee of verdict.
in the case of highways, and when accepted shall take efiect as an ori- ''^*^' "'''^'*:
ginal order.
Sect. 39. If the order is afllrmed, costs shall be recovered by the Recovery of
city or town against the applicant; if it is annulled, damages and costs S45fi97, §9.
shall be recovered by the eom])lainant against tiie city or town ; and if
it is altered, the court may render such judgment as to costs, as to
justice shall ajtpertain.
Sect. 40. Any steam-engine or furnace erected or used contrary to Engines, &c.,
the provisions of the se-ien preceding sections, shall be deemed a com- uuisa„"e""i:™
mon nuisance. And the mayor and aldermen or selectmen sliall have k. s. :;i,§§ 10,
like authority to remove the same as is given to boards of health to iK45,n)r,§§3,io.
remove nuisances by sections eight, nine, and ten, of chapter twenty-six. JSq' o','; ^t.".j'\
Sect. 41. The mayor and aldermen or selectmen of any city or 5, sV"
town, or any person by them authorized, may, after notice to the parties selectmen, &c.,
interested, examine any steam-engine or steam-boiler therein ; and for Sm-o""ines
that ]mr|iose may enter any house, shop, or building; and if upon sucli and proiawt
examination it iippears probable that the use of such engine or boiler is "^50^ ini,§i.
unsale, they may issue a temjiorary order to suspend such use, and if isss, 259.
460
LICENSES, &c. — ROCKETS, GUNPOWDER, &c. [ChaP. 88.
Steam-boilcra,
when may be
removed as
nuisances.
K. S. 21, §§ 10,
11 ; 184'J, ;;ll,
§§3,4,5,8i 1»52,
191, § 2 ; 1859,
259.
not to bo made
or used, Ac,
without safety
pluf^s.
1850, 277, § 1.
1852, 247, § 1.
Penalty for re-
moving safety
plugs.
1850, 277, § 2.
for making,
&c., boilers
■without salety
plugs.
1860, 277, § :i.
1852, 217, § 1.
after giving the parties interested, so far as known, an opportunity to he
heard, they adjudge such engine or boiler unsafe, or defective, or unfit
to be used, they may pass a j)erinanent order prohibiting the use thereof
until it is rendered safe. If, after notice to the owner or person having
charge thereof, such engine or boiler is used contrary to either of such
orders, it shall be deemed a eoinmon nuisance, without any other proof
thereof than its use.
Sect. 4"2. The mayor and aldermen and selectmen shall have the
same authority to abate and remove any steam-engine or steam-boiler
erected or used contrary to the provisions of the preceding section, as
boards of health have to remove nuisances, by sections eight, nine, and
ten, of chapter twenty-six.
Sect. 43. No person shall manufacture, set up, use, or cause to be
used, any steam-boiler, unless it is provided with a fiisible safety plug
made of lead or some other equally fusil )le material, and of a di.ameter
of not less than one-half an inch ; which plug shall be placed in the
roof of the fire-box, when a fire-box is used, and in all cases, in a part
of the boiler fully exposed to the action of the fire, and as near the
top of the water line as any part of the fire-surface of the boiler;
and for this purpose Ashcroft's "protected safety fusible plug" may
be used.
Sect. 44. Whoever without just and proper cause removes from any
boiler the safety plug thereof; or substitutes therefor any material more
ca]>able of resisting the action of the fire than the plug so removed,
shall be punished by a fine not exceeding one thousand dollars.
Sect. 45. Whoever manufactures, sets up, knowingly uses, or causes
to be used, for six consecutive days, a steam-boiler unprovided with a
safety fusible plug as named in section forty-three, shall be punished by
tine not exceeding one thousand dollars.
Penalty for sell-
ing rockets,&c.,
without license.
K. S. 58, § 5.
1839, 135.
for firing, Ac,
without lieense.
R. S. 58, § «.
1839, 136.
10 Gush. 494.
Towns, &c.,
may order how
gunpowder,
gun-cotton, &c.,
shall be kept.
K. .S. 58, § 7-
1817, 51.
EGOKETS, GtJNPOWDEB, AND OTHEE EXPLOSIVE SUBSTANCES.
Sect. 4(3. Whoever sells, gives away, or ofiers for sale, or has in
his possession with intent to sell, any of the fireworks called rockets,
crackers, squibs, or serpents, without license from the mayor and alder-
men or selectmen of the city or town, shall for every such oftence forfeit
a sum not exceeding ten dollars.
Sect. 47. Whoever sets fire to, or has in his possession with intent
to set fire to, any rocket, cracker, squib, or serpent, or throws any
lighted rocket, cracker, squib, or serpent, within any city or town, with-
out the license of the mayor and aldermen or selectmen, shall for every
olfence forfeit a sum not exceeding ten dollars.
Sect. 48. The city council of a city and the inhabit.ants of a town
may order that no gunpowder shall be kept in any place within the
limits thereof, unless it is well secured in tight casks or canisters; that
no gunpowder, above the quantity of fifty pounds, shall be kept or de-
jiosited in any shop, store, or other building, or in a ship or vessel, which
is within the distance of twenty-five rods from .any other building or
wharf; that no gunpowder, .above the quantity of twenty-five pounds,
shall be kept or deposited in any shop, store, or other building, within
ten rods of .any other building ; and that no gunpowder, above the
quantity of one pound, shall be kept or deposited in any shoj), store,
or other building, within ten rods of another building, unless it is well
secured in copper, tin, or brass canisters, holding not exceeding five
pounds each, and closely covered with copper, brass, or tin covers.
They may make a like order in regard to gun-cotton, or other sub-
stances prepared like it for explosion, and, if considered necess.ary for
public safety, may restrict the quantity to be so kept to one-fifth of the
weight of gunpowder allowed by this section.
Chap. 88.] licenses, &c. — dogs. 461
Sect. 49. Upon complaint made to a justice of the peace or police .Tustii-cs to is-
court 1)}" the mayor or either of the aldeniieii, selectmen, or tirewards of ul'r srarciliug
any place, that he has i)robable cause to suspect, au<l does suspect, that plants where
gunpowder, gun-cotton, <ir other substance )ire]jared like it for explosion, |',''.'j""usp'ect-
is deiiosited and kei»t within the limits thereof contrary to law, such "'„'" l'^' ""law-
justice or court may issue a warrant, directed to either oi the constables it. s. w, §8.
of such place, ordering him to enter any shoj), store, or other building, ^*^''^'-
or vessel, specified iu the warrant, and there make diligent search for
such gunpowder, gun-cotton, or other substance, suspected to have been
so deposited or kept, and to make return of his doings to said justice or
court forthwith.
Sect. 50. Whoever commits an offence against any order made un- Pennitv for un-
der section forty-eight, shall forfeit a sum not exceedinii- twenty dollars ; •'i"'"''y kicji-
1 . , ,. '^ .v ' . 1 11 1 7. . Ill",' "ruupowucr,
but the tour preceding sections shall not extend to any manutactorv ot .tc.
gunpowder, gun-cotton, or other substance aforesaid, nor in any case Jkimkis ^'■''
prevent the transportation thereof through any city or town, or from iwr, m.
one to another part thereof §§'i'.'.<-7i.^''
Sect. 51. The city council of any city and the inhabitants of any Tomis may
town may adopt such rules and regulations as they deem reasonable in ,'j?,7;"„';JJf/V"''f
relation to the storage and sale, within the limits thereof, of canipheue cmnpiu-ne, &c.
or any similar explosive or inflammable fluid, and may affix ])enalties ^*^"' "'^"
for breaches thereoti not exceeding twenty dollars for any one ofl;euce.
DOGS.
Sect. 52. Every owner or keeper of a dog shall annually on or be- Dog-stobo re-
fore the thirtieth day of April, cause it to be registered, numbered, ^.'.J'S'' ^'^'^ "'
described, and licensed for one year from the first day of the ensuing isoi, '^5, § i.
May, in the ofiice of the clerk of the city or town wherein he resides;
and shall cause it to wear around its neck a collar distinctly marked
with its owner's name and registered number, and shall jiay for such
license one dollar for a male dog and five dollars for a female dog.
Sect. 53. The clerk shall issue the license, and receive and pay the rierk to issue
money therefor into the city or town treasury, retaining to his own Tr'.^'^sl'iVcr to
use ten cents for each license. The treasurer shall keep an accurate ktip account,
and separate account of all sums received and paid out under the pro- issb, 225, § i.
visions of this chapter relating to dogs, which account shall at all times
be open to the inspection of any voter of the place.
Sect. 54. The clerk shall annually, within one week after the first to post list,
day of May, post in some conspicuous public place a list of all dogs iSb, 225, §3.
licensed for the current year; and shall furnish a copy thereof to the
chief of police of the city, or one of the constables of the town ; and
shall also, from time to time, furnish said oflicers with a list of such dogs
as are subsequently licensed during the year.
Sect. 55. Any owner of a dog m.ay, at any time, have it licensed Do^maybcU-
until the first day of the ensuing May, upon papng the sum as provided timf.'l.c! ™^
in section fifty-two ; but such license shall not exemjit him from the "j™'™'-^,
penalty of the following section, on comidaint made prior to issuing the u''."~ '
license. No new license for the current year shall be necessary upon
the removal of a licensed dog into another city or town, unless required
by some by-law passed under section sixty-seven.
Sect. 56. Whoever keeps a dog contrary to the provisions of this Penalty forneg-
chapter shall forfeit ten dollars, to be recovered by complaint, to the Isssi, 225, § 9.
use of the place wherein the dog is kept.
Sect. 57. Whoever wrongfully removes the collar fi-om or steals a for removing
dog, licensed and collared as aforesaid, shall be punished by fine not ex- "'/,','" exposin<'
ceeding fifty dollars; and whoever wrongfully kills, maims, entices, or poisons, &c.
carries away such a dog, shall be liable to its owner for its value in an '*^59, j^'5, §§4.5.
action of tort. Whoever distributes or exposes any poisonous sub-
39*
462
LICENSES, &c. — DOGS.
[Chap. 88.
Doj^s may he
killed wliVn uot
licensed, t&c.
Bounty.
1859, 325, § 4.
damans by.
R. S. 5S, § 13.
•JO Pick. -i-r.
12 Met. 2'Jl.
l-.' Cush. 278.
when any per-
son may kill,
&c.
R. S. 58, § 14.
]:) .Johns. K.:il2.
4Cowen, 351
daufxeroua, to
be couliiicd hy
owner or killed.
li. S. 5s, § 15.
:839, 135.
after notice,
any person may
kill.
K. S. 58, § 10.
Liability of
owner in case,
Ac.
R. S. 58, § 17
1832, 312.
Towns liable for
loss in certain
cases.
may recover
of owner.
1859, 225, §§ 6, 7.
Person dam-
ajjed to have
choice of rem-
edy.
1S59, 225, § 8.
Officers to kill
unlicensed
dogs.
stance, with intent that the same shall be eaten by any dog, shall be
piinisheil by tine not exceeding fifty nor less than ten dollars.
Sect. .58: Any person may, and every police officer and constable
shall, kill or cause to be destroyed all dogs going at large and not
licensed and collared according to the provisions of this chapter ; and
such officers, when not otherwise paid for their services, shall receive
from the city or town treasury fifty cents for each dog so destroyed by
them.
Sect. 59. Every owner or keeper of a dog sliall forfeit to any
person injured by it double the amount of the damage sustained by
him, to be recovered in an action of tort.
Sect. 60. Any person may kill a dog that shall suddenly assault
him while he is peaceably walking or riding without the enclosure of
its owner or keejier ; and any person may kill a dog that is found out
of the enclosure or immediate care of its owner or keeper, worrying,
wounding, or killing any neat cattle, sheep, or lambs.
Sect. 61. If any person so assaulted, or finding a dog strolling out
of the enclosure or immediate care of its owner or keeper, shall, within
forty-eight hours after such assault or finding, make oath thereof
before a justice of the peace or police court for the county, or before
the clerk of the city or town where the owner of the dog dwells, and
shall further swear that he suspects the dog to be dangerous or mis-
chievous, and shall give notice thereof to its owner or keeper by deliv-
ering him a certificate of such oath signed by such justice or clerk, the
owner or keeper shall forthwith kill or confine it ; and if he neglects
so to do for twenty-four hours after such notice, he shall forfeit ten
dollars.
Sect. 62. If, after such notice, the dog is not killed or confined,
but is again found strolling out of the enclosure or immediate care of
its owner or keejier, any person inaj kill it.
Sect. 63. If a dog, after such notice to its owner or keeper, shall
by such assault wound or cause to be wounded any person, or shall
worry, wound, or kUl any neat cattle, sheep, or lambs, or do any other
mischief, the owner or keeper shall be liable to pay to the person
injured thereby treble damage, to be recovered in an action of tort.
Sect. 64. \yhoever suffers loss by reason of the worrying, maim-
ing, or killing of his sheep, lambs, or other domestic animals, by dogs,
may, within thirty days after he knows of such loss, present proof
thereof to the mayor or selectmen of the city or town wherein the
damage is done ; and thereupon said officers shall draw an order in
fiivor of the owner upon the treasurer of said city or town for the
amount of such loss. The treasurer shall register such orders at the
time of their jiresentation, and annually on the first day of January
p.ay them in full, if the gross amount received by his city or town
under the jirovisions of this chapter relating to dogs, and not pre-
viously paid out, is sufficient therefor ; otherwise he shall divide such
amount pro rata among such orders, in full discharge thereof After
such order has been drawn, the city or town may in an action of tort
recover against the keeper or owner of any dog concerned in doing the
damage the full amount thereof.
Sect. 65. The owner of sheep, lambs, or other domestic animals
worried, maimed, or killed by dogs, shall have his election whether to
proceed under the provisions of the preceding section or of sections
sixty-one, sixty-two, and sixty-three ; but having signified such elec-
tion, by commencing a suit or obtaining an order, he shall not have
the other remedy.
Sect. 66. The mayor and aldermen of each city, and the selectmen
of each town, shall require all dogs not licensed ami collared according
to the foregoing provisions, to be destroyed, and shall enforce all penal-
Chap. 88.J licenses, &c. — billiard tables, &c. 463
ties herein provided. Any officer refusing or neglecting to perfonn tlie Pen.aifyforneg-
duties herein imposed upon him, shall be puni.shed by tine not exceed- 'mu, 225, Ǥ 12
lug twenty-tive doll.ars, to be paid into the city or town treasury. 13.
Sect. 67. The city council of any city, and the inhabitants of any Towns may
town, may make such additional by-laws and regulations concerning '^^^'' bylaws,
the licensing and restraining of dogs, as they deem expedient, and may Fees for license.
affix any penalties, not exceeding ten dollars, for any breach thereof; i^^^' 22^' 5 ii.
but such by-laws and regulations shall relate only to dogs owned or
kept in such city or town ; and the annual fee required for a license
shall in no case be more than one dollar in addition to the sum re-
quired by section fifty-two.
Sect. 68. All fines and penalties provided in the sixteen preceding Fines, Ac, how
sections may be recovered on complaint before any police court or trial ''•^™^>^'''!''-
justice in the county where the oflence is committed.
BILLIARD tables AND BOWLIXG ALLEYS.
Sect. 69. The mayor and aldermen or selectmen of any city or Scioctmcn, &c.,
town may grant a license to any jicrson to keep a billiard table or Scl'to'U'ep
bowling alley for hire, gain, or reward, upon such terms and conditions wiiiard tables,
as they deem proper, to be used for amusement merely, but not for the &e!' °' "^'
puTOOse of gaming for money or other property. Such license may be J^^'ui^'j 5 2.
revoked at the pleasure 01 the authority granting it.
Sect. 70. Whoever without such license keeps or suffi?rs to be kept ronaity for
in a house, building, yard, or dependency thereof by him actually occu- 4,T'''vrtiIuutf' '
pied or owned, a table for the purpose of jilaying at billiards, or a iiei;iise.
bowling alley for the purpose of playing at bowls, for hire, gain, or sec'cii. i2o,§40.
reward, or for hire, gain, or reward suffers an}- person to resort to the
same for such purpose, shall forfeit for every such ofience a sum not ex-
ceeding one hundred dollars.
Sect. 71. The keeper of a billiard room or table, or bowling allc)', for admitting
who admits a minor thereto without the written consent of his parent "55"">9,°§ *"'
or guardian, or who sufl'ers any person to play at the same after six
o'clock in the afternoon on Saturday, or after ten o'clock in the after-
noon of any other day, shall forfeit ten dollars for the first and twenty
dollars for each subsequent offence.
Sect. 7'2. Any marshal or his deputy, sheriff or his deputy, constable, offieers may en-
police officer, or watchman, may at any time enter into a billiard room, '"onlJ''^"' to
bowling alley, or other room connected therewith, for the jnirjiose of entorcc laws.
enforcing any law of the state; and whoever obstructs or hinders the ^^5, 4.;9, §2.
entrance of such officer shall be punished by tine of not less than five
nor more than twenty dollars.
Sect. 73. The pi'ovisions of section thirtv-two shall apply to the Penalty for
erection, occupancy, or use, of buildings for bowling alleys in any city iJ'o^v'i'iu|' ^ley.
or town. )S5i, sia.
1852, 129.
1853, 362.
THEATRICAL EXHIBITIOHTS, PtTBLIC SHOWS, MASKED BALLS, &C.
Sect. 74. The mayor and aldennen or selectmen of any city or Thratricai ex-
town may license theatrical exhibitions, public shows, public amuse- mayb°"iiceused.
ments and exhibitions of every description, to which admission is ob- is4», 23i,§i.
tained upon payment of money or the delivery of any valuable thing, ^ ™'' ^''^'
or by a ticket or voucher obtained for money or any v.aluable thing,
upon sucji terms and conditions as they deem reasonable ; and they
may revoke or suspend the same at their pleasure.
Sect. 75. Whoever offers to view, sets up, sets on foot, maintains, penalty for
carries on, publishes, or otherwise assists in or promotes, any such exhi- contr'a^yto Uw'.
bition, show, or amusement, without such license, shall be punished by '■'^"' f "; .^ ^•
fine not exceeding five himdred dollars for each oflence. 6 Cush! 179.
464
LICENSES, &c. — THEATRICAL EXHIBITIONS, <S:c. [ChaP. 88.
Penalty for set-
ting up th' itri-
cal exhibitione
at which liiger-
bier, &e., is
sold.
1858, 152, §§ 1, 2.
for geting up,
&c., masked
balls, &c.
ISii), 2;il, § 3.
Justices may
require sureties
of oifeuders.
K. S. 58, § 3.
Penalty for ex-
hibiting fig-ht-
lug birds, Jkc.
1869, 158.
Sect. 76. Wlioover offers to view, sets np, sets on foot, iii;iintnins,
or carries on, a theatrical exiiibition, public show, concert, or dance-hall
exhibition, of any description, at which lager-bier or other intoxicating
liquors are sold or ex])osed for sale, with the consent of those who get
up, set on foot, or otherwise jironiote, such exhibitions or shows, shall
be punished by fine not exceeding five hundred dollars, or imprisonment
in the house of correction not more than two years, unless such exhibi-
tion or show has been first duly licensed as provided by section seventy-
four. This section shall not authorize the licensing of the sale at any
exhibition or show, of liquors the sale of which is prohibited by law.
Sect. 77. Whoever gets up, sets on foot, causes to be [niblished, or
otherwise aids in getting u]) and promoting, any masked ball or other
public assemlily, at which the company wear masks or other disguises,
and to which admission is obtained upon payment of money or the
delivery of any valuable tiling, or by a ticket or voucher obtained for
money or any valuable thing, shall for the first oflenec be ])unislied by
fine not exceeding five hundred dollars; and for any subsequent of-
fence, by imprisonment in the jail or house of correction not exceeding
one year.
Sect. 78. Any justice of the ])eace or police court, upon complaint
made of an offence against the provisions of the three preceding sec-
tions, shall bind over all persons so offending, to appear at the next
term of the superior court, and shall also require such persons to find
sureties for the keeping of the peace and being of good behavior until
such term of the court, and shall commit such persons upon their refusing
or neglecting so to recognize and find sureties.
Sect. 79. Whoever establishes or promotes an exhibition of the
fighting of birds or animals, shall be punished by fine not exceeding
one hundred dollars, or by imprisonment in the house of con-ectiou
not exceeding six months. Whoever is present at, or aids in, or con-
tributes to such au exhibition, shall be punished by fine not exceeding
ten dollars.
PART II.
OF THE ACQUISITION, THE ENJOYMENT, AND THE
TRANSMISSION, OF PROPERTY, REAL AND PERSONAL ;
THE DOMESTIC RELATIONS, AND OTHER MATTERS
CONNECTED WITH PRIVATE RIGHTS.
TITLE I.
OF REAL PROPERTY AND THE ALIENATION THEREOF.
Chapter 89. — Of Alienation by Deed; the Legal Formalities, Construction,
and Operation, of Deeds for the Conveyance of Lands.
Chapter 90. — Of Estates in Dower, by the Curtesy, for Years, and at Will;
and General Provisions concerning Real Estate.
CHAPTEK 89.
OF ALIENATION BY DEED; THE LEGAL FORMALITIES, CONSTRUCTION,
AND OPERATION, OF DEEDS FOR THE CONVEYANCE OF LANDS.
general provisions.
Section
1. Conveyances of land by deed.
2. witliout writing-, to have effect of leases
at win.
3. what not valid unless by deed recorded.
4. by tenant in tail.
5. by tenant for life and remainder man In
taU.
6. of equitable estates tail.
7. Grantee may in equity obtain conveyance of
legal estate, ifcc.
8. Conveyance by quitclaim.
9. by tenant for life or years.
10. Expectant estates not defeated, &c.
11. Exception as to estates tail.
12. Conveyance, &c., for life with remainder to
heirs.
13. Conveyance to two or more.
14. Exceptions.
15. Defeasance of conveyance to bo recorded.
IG. Grantor to make encumbrances known to
grantee.
Section
17. Damages in removing apparent encum-
brances may be recovered of grantor.
ACKNO\\'LEDC.MENT AND PROOF OF DEEDS.
IS. Deeds to be acknowledged.
19. before whom to be acknowledged.
20. proof of execution of, when grantor is
dead, &c.
21. when subscribing \vitne8sea are dead.
22. 23. when grantor refuses to acknowledge,
24. when subscribing witnesses are dead, &c.
25. Copy of deed not acknowledged may be
filed in registry of deeds, and effect thereof.
2fi. Effect may be prolonged.
27. Deed without witness, not so proved.
28. Certificate of acknowledgment, Ac, to be
indorsed on deed.
29. Powers of attorney to convey real estate to
be acknowledged, &c.
DISCHARGE OF MORTGAGES.
.30. Mortgages, how discharged.
31. Mortgagee liable for refusing to discharge.
GENERAL PROVISIONS.
Section 1. Conveyances of lands, or of any estate or interest conveyances of
therein, may be made by deed executed by any person having authority land by deed.
to convey the same, or by his attorney, and acknowledged and recorded 12 Met. 157.
59 (465)
466 . CONVEYANCES OP LAND. [ChAP. 89.
13 Met. 79. in the registry of deeds for the county or district where the lands lie,
9Cu8h. 103. without any other act or ceremony.
not in wiitiug, Sect. 2. Estates or interests in lands, created or conveyed without
i?'s* 59," § 29. '''" instrument in writing signed by the grantor or his attorney, shall
9 Met. 4fi2. have the force and effect of estates at will only, and no estate or in-
12 Met! ~m. terest in lands shall be assigned, granted, or surrendered, unless by a
1 Gray, 5;i. writing signed as aforesaid or by the operation of law.
what not valid Sect. 3. No bargain and sale or other like conveyance of an estate
recorded' ''"^'"' '^ f"?® simple, fee tail, or for life, and no lease for more that seven years
R. s. 59, §38. from the making thereof, shall be valid and eftcctual against any person
6 Mass! 30.' other than the grantor, and his heirs and devisees, and persons having
2 Met' 619 actual uoticc thereof, unless it is made by a deed recorded as aforesaid.
3 Met! 405. 10 Met. 1.38. 11 Met. 2«. 12 Met. 157. 13 Met. 79. 6 Cush. 1C3.
Sect. 4. Any person actually seised of lands as tenant in tail, may
by tenant in convey the same in fee simple by a deed in common form, in like man-
k!.s. 59, §3. ner as if he were seised thereof in fee simple; and such conveyance
13 Met. 486. shall bar the estate tail and all remainders and reversions expectant
thereon.
by tenant for Sect. 5. "When lands are held by one person for life, with a vested
der mau'in't'aiiV remainder in tail to another, the tenant for life and the remainder man
R. S. 59, §4. may convey the same in fee simple by their deed or deeds in common
form, in like manner as if the remainder had been limited in fee simple;
and such deed or deeds shall bar the estate tail and all remainders and
reversions expectant thereon.
of equitable Sect. 6. !Equitable estates tail in lands or tenements, in possession
issfu's'i '^'' remainder, may be conveyed in fee simjile, and all remainders and
reversions expectant thereon may be barred, in the same manner as
legal estates tail may be conveyed and the remainders and reversions
expectant thereon barred by the two preceding sections.
Grantee may, in Sect. 7. The person to whom such equitable fee simple is conveyed
TOilvevamTof P'TSuaiit to the jircceding section, may call for a conveyance of the
K '^'ai istiite, &c. outstanding legal estate from the person in whom the same is at any
1867! 214. ' time thereafter vested in trust; and the supreme judicial court shall
h.ave jurisdiction in equity to compel the conveyance thereof
Conveyance by Sect. 8. A deed of quitclaim and release of the form in common
Ill's! m"' 5. "**® "^ ^'"* state, shall be sufficient to pass all the estate which the
8 Picii. 143. grantor could lawfully convey by a deed of liargain and sale.
by tenant for Sect. 9. A Conveyance made by a tenant for life or years, purport-
"'"s^'sulTo.' Ji" to grant a greater estate than lie jjossessed or could lawfully con-
vey, shall not work a forfeiture of his estate, l)ut shall pass to the
grantee all the estate which such tenant could lawfully convey.
Expectant es- Sect. 10. !No expectant estate shall be defeated or barred by any
cd,"^^*?."' '*'''°''*^ alienation or other act of the owner of the precedent estate, nor by any
R. s. 59, §7. destruction of such precedent estate by disseisin, forfeiture, surrender,
or merger.
Exception as to Sect. 11. The two preceding sections shall not be construed to
K.'s.'^M^'ss. jirevent the barring of estates tail in the manner before provided in
this chapter, nor to prevent any expectant estate from being defeated in
any manner provided for or authorized by the jiarty creating the estate.
Conveyance, Sect. 12. When lands are given by deed or will to any person for
R?'s.59,§9'.' "' his life, and after his death to his heirs in fee, or by words to that effijct,
1 Coke's U. 94. {],g convey.ance shall be construed to vest an estate for life only in such
7 Met. 1,2. .' ._.„.,.,.,. •'
13 Met. 486. hrst taker, and a remainder m tee simple in his heirs.
3 Cush. 3'ji). Sect. 13. All convey.ances and devises of lands made to two or more
two or'more. persons, cxccpt as provided in the following section, shall be construed
le' Mass' 61'"' to create estates in common and not in joint tenancy; unless it is
4 Cush. 111! expressed therein that the grantees or devisees shall take the lands
jointly, or as joint tenants, or in joint tenancy, or to them and the sur-
vivor of them.
Chap. 89.] acknowledgments and proof of deeds. 467
Sect. 14. The preceding section shall not apply to mortgages, nor Exceptions.
to devises or conveyances made in trust, or made to husband and wife, s^Sugs^'sliV'
nor to a devise or conveyance in which it manifestly appears from the " Mass. i.si.
tenor of the instrument, that it was intended to create an estate in joint 22 Pick.'asii."
tenancy. 8 Gray, 1.54.
Sect. 15. \V hen a deed purports to contain an absolute conveyance Defeasance of
of any estate in lands, but is made or intended to be made defeasible be^ecorded.*"
by a deed of defeasance, bond, or other instrument, for that purpose, k. .s. 59, §ar.
the original conveyance shall not be thereby defeated or affected as 2 ciTsh. 494.
against any person other than the maker of the defeasance, or liis heirs '' *^"»'»- 1''^-
or devisees, or persons having actual notice thereof, unless the instru-
ment of defeasance is recorded in the registry of deeds for the county
or district where the lands lie.
Sect. 16. In all conve3'ances of real estate by deed or mortgage. Grantor to
upon which any encumbrance exists, the grantor, whether he executes bi.ance™kn™vra
the same in his own right, or as executor, administrator, assio-nee, trus- to grantee,
tee, or otherwise by order of law, shall, before the consideration is paid, ' "'^^•
by exception in the deed or otherwise, make known to the grantee the
existence and nature of such prior encumbrance, so far as he has knowl-
edge thereof.
Sect. 17. Whoever conveys real estate by deed or mortgage con- Dnmases in re-
taining a covenant that it is free from all encuTubranccs when an encum- e,','iV.'iu'um?"
brance a]>pears of record to exist thereon, whether known or unknown brmccsmaybe
to him, shall lie liable in an action of contract to the grantee, his heirs, gr,:,ntor? °
executor, administrator, successors, or assigns, for all damages sustained it>J5, irr, § 3.
in removincr the same.
ACKNOWLEDGMENTS ANT) PROOF OF DEEDS.
Sect. 18. The acknowledgment of deeds shall be by the grantors, or Deeds to be ac-
one of them, or by the attorney executing the same. i7s''^59'l'^r>
Sect. 19. The acknowledgment maybe made before any justice of 9 Mass.'2ui.'"
the peace in this state; or before any justice of the peace, magistrate, ^Jf '***",,
or notary public, or commissioner n])pointed for that purpose liy the e. s. 50, § 13.
governor of this commonwealth, within the United States, or in any 4*oush^.^26o.
foreign country; or before a minister or consul of the United States in SeeCh. 14,
any foreign country. SH'^?-
Sect. '20. When a grantor dies or departs from the state without proof of exc-
having acknowledged his deed, the due execution thereof may be proved grautor°is^dead.
by the testimony of a subscribinar witness thereto, before any court of J^.^-s^ § h.
record or probate court in tins state.
Sect. 21. If all the subscribing witnesses to such deed are also dead -n-henwit-
or out of the state, the same may be proved before a court of record or jf.^'s. 5y,'^§ f^'^'
probate court in this state, by proving the handwriting of the grantor iS5i,20S, §1.
and of any subscribing witness.
Sect. '22. If a grantor refuses to acknowledge his deed, the grantee -n-iien gT.rator
or any person claiming under him may apply to a justice of the jieace i^^''^!ied"e^'^
in the county where the land lies, or where the grantor or any subscrib- K. s. sa.lie.
ing witness to the deed resides, who shall thereupon issue a summons
to the grantor, to appear at a certain time and place before the justice
to hear the testimony of the subscribing witnesses; which summons,
with a copy of the deed annexed, shall be served seven days at least
before the time therein assigned for proving the deed.
Sect. 23. At such hearing or any adjournment thereof, the due exe- same snbjeot.
cution of the deed may be proved by the testimony of one or more of ^- *• ^'' ^ '''•
the subscribing witnesses ; and if proved to the satisfaction of the
justice, he shall certify the same thereon, and also whether or not the
grantor was present at the hearing.
Sect. 24. If a grantor refuses to acknowledge his deed and the sub- when sub-
468
DISCHARGE OF MORTGAGES.
[Chap. 90.
scribing wit-
nesses are dead,
&c.
K. S. S:), 5 18.
1H51, UUS, §1.
8 Met. :iJ5.
Copy of deed
not acknowl-
ed^^ed muy be
filetl in i'e"g:istry
of deeds, and
efTi^ct thereof.
I£. S. O'.i, § 19.
ItSol, 208, § 1.
Efloet may be
prolonged.
K. S. 50, 5 20.
Deed without
witness not so
proved.
K. 8. m, § 21.
1851, 2US, § 1.
Certilicate of
acknowledg-
ment, &e., to
be indorsed
on deed.
K. S. 60, § 22.
1851, 208, § 1.
4 Mass. 54(i.
1.3 Mass. 377.
a Cush. 497.
Powers of at-
torney to con-
vey I'eal estate
to be acknowl-
edged, .te.
ItvifO, 203.
scribing witnesses to the same .are .nil dearl or out of the state, it may
be proved before any court of record or probate court in this state, by
jiroving the handwriting of the grantor and of any subscribing witness;
the court first summoning the grantor for the purpose and in the manner
before provided.
Sect. '25. Any person interested in a deed that is not acknowledged,
may, before or during such ap])lication to a court of record or probate
court or such jiroceedings before a justice, file in the registry of deeds
a co])y of the deed, compared with the original by the register; which
shall for thirty days thereafter have tlie same effect as the recording of
the deed, if the deed is witliin that time duly proved and recorded.
Sect. 26. If at the expiration of said thirty days such proceedings
for proving the execution of tiie deed are pending, the eflect of filing
such copy shall continue until the expiration of seven days after the
termination of the proceedings.
Sect. 27. A deed shall not be proved in the manner before provided
unless it has at least one subscribing witness.
Sect. 28. A certificate of the acknowledgment of the deed under
the hand of the officer taking the same, or of the proof as above pro-
vided by the clerk or register of the court, or the judge or justice re-
spectively, shall be indorsed upon the deed or annexed thereto ; and
such deed ami certificate may be recorded at length in the registry of
deeds for the county or district where the lands lie ; and no deed shall
be recorded without such certificate.
Sect. 29. The jirovisions of law concerning the ackno-n'ledgmcnt
and registry of deeds shall apply to letters of attorney for the convey-
ance of real estate ; which if made by husband and wife for the pur]>o.se
of authorizing conveyances of her real estate, (and not merely for the re-
lease of dower by the wife,) shall be acknowledged by both husband and
wife before the same is recorded.
Mortgages,how
discharged.
K. S. 50, § :a.
Moi-tgagee lia-
ble :ov refusing
to (iischarge.
R. S. 59, § 34.
1852, 312.
niSCHAEGE OF MORTGAGES.
Sect. .30. Mortgages may be discharged by an entry on the marsrin
of the record thereof in the registry of deeds, signed by the mortgagee,
or his executor, administrator, or assignee, acknowledging the satisfac-
tion of the mortgage ; and such entry shall have the same eflect as a
deed of release duly acknowledged and recorded.
Sect. 31. If a mortgagee, his executor, administrator, or assignee,
after full performance of the condition, whether before or after breach
thereof, shall for seven days after being thereto requested, and .after a
tender of his reasonable charges, refuse or neglect to make such dis-
charge or execute and acknowledge a deed of release of the mortgage,
he shall be liable for all damages occasioned by such neglect or refusal,
to be recovered in an action of tort.
CHAPTER 90.
OF ESTATES IN DOWER, BY THE CURTESY, FOR YEARS, AND AT WILL;
AND GENERAL PROVISIONS CONCERNING REAL ESTATE.
Section
1. Dower in lands of husband.
2. in right of redemption.
3. when and how to be assigned by probate
court.
Section
4. Partition of land may be made before as-
signing dower.
5. Dower, Iiow assigued when estate cannot
be divided.
CnAP. 90.]
ESTATES IN DOWER.
469
Section ^
U. Dower to be claimed M'ithin twenty years
Irom death of husband except, &c.
7. Widow may occupy iu common with heirs,
with tlieir assent.
8. Dower, how released.
9. how barred by jointure settled with wife's
assent.
10. by pecuniary provision.
11. If settled or made without wife's assent,
she may elect.
12. Widow not dowable of wild lands.
13. If evicted, may be endowed anew.
14. Penalty for waste by tenant in dower.
15. Widow of intestate, without issue, to take
half of real estate fur lile, &c.
If). or may at Iier election have dower.
17. Undivided estate of widow in estate of hus-
band may be set off same as dower.
18. Widow may rennun iu house, &c.
19. Tenant by the curtesy.
20. Terms for one hundred years to be regard-
ed as real estate, while, &c.
21. Such tenant a treclioider.
22. Tenant iu dower, &c., liable for part of
rent.
23. Prior devises, &c., of such terms not af-
fected.
24. Teuajit of part of laud demised liable for
rent.
Section
25. Tenant at Bufferance liable for rent.
20. Kent Iiow i ecovercd.
27. Action by or against executors, &c.
•2^. Landlords not dejirived of other remedies.
29. Kent deemed necessaries.
:iu. ^\'ritten leases, how terminated if rent is
not iiaid.
31. Tenancy at will, how terminated
32. Easements of light and air not acquired by
mere use.
33. Easements acquired by use for twenty-
years.
34. Acquiring of such right prevented by no-
tice served and r'^corded.
35. Service of such notice when adverse claim-
ant is unknown.
30. Estates tail liable for debts, &c.
3r. Contingent estjites alienable.
38. Aliens may take, &c., real estate. Titles
confirmed.
39. S. J. C. may allow tenant for life to cut
grown trees.
40. Commissioners to superintend, &c.
41. Proceeds may be invested and trustees ap-
pointed.
42. Income to be paid to tenant for life ; princi-
pal to owner iu fee.
43. Trustees may be removed ; shall give
bond.
Si^cTiox 1. Every woman sliall be entitled to her dower at common
law ill the lands of Iht liusband, to be assigned to her al'ter his decease,
unless slie is lawfully barred thereof.
Sect. 2. If upon a mortgage made by a husband his wife has released
her right of dower, or if the husband is seised of hind subject to a mort-
gage which is valid and effectual as against his wife, she shall never-
theless be entitled to dower in the mortgaged j)remises as against every
])ersou except the mortgagee and those claiming under him. If the
heir or other person claiming under the husband redeems the mortgage,
the widow sliall either repay such part of the money paid by liim as
shall be e(iual to the proportion which her interest in the mortgage<l
premises bears to the whole value thereof, or she shall at her election be
entitled to dower only according to the value of the estate after deduct-
ing the money paid for redemption.
Sect. 3. When a widow is entitled to dower in lands of which her
husband died seised, and her right is not disputed by the heirs or devi-
sees, it may be assigned to her, in whatever counties the lands lie, by
the probate court for the county in which the estate of the husband is
settled; and the court shall for that jfuri'ose issue a warrant to three
discreet and disinterested persons, authorizing them to set off the dower
by metes and bounds, when it can be so done without damage to tlie
whole estate. The commissioners shall be sworn to perform their duty
faitlifully and impartially according to their best skill and judgment.
Sect. 4. When a woman Is entitled to dower in lands owned by her
husband as tenant in common, the probate court upon petition by her,
and notice as in case of other partitions, may empower the commission-
ers to make partition of such lands, and then assign to her dower iu the
portion set to the estate of her husband.
Sect. 5. When the estate out of which dower is to be assigned
consists of a mill or other tenement wliich cannot be divided without
cLainage to the whole, the dower may be assigned of the rents, issues, or
j)rofits, thereof, to be had and received by the widow, as a tenant in
common with the other owners of the estate.
Sect. 6. After the eighteenth day of March in the year eighteen
40
Dower.
R. S. CO, § 1.
5 Met. 277.
11 3Iet. 5(ir).
7 Gray, 537.
in riglit of re-
demption.
K. S. 00, § 2.
15 Alass. 27S.
3 Pick. 475.
13 Met. 415.
4 Cush. 257.
4 (jray, 40.
r Gray, 148.
when and
how to be as-
signed by pro-
bate court.
K. S. CO, §3.
9 Mass. 0.
13 aiet. 414.
4 Cush. 257.
Partition of
land may be
made before as-
signing dower.
1S42, 73.
Dower, how as-
sipTied when es
tare cannot be
di\ ided.
K. S. 00, §4.
to be claimed
470
ESTATES IN DOWER.
[Chap. 90.
within twenty
years from
death of hus-
band except,&c.
1858, 56, § 1.
Widow may oc-
cupy in commuu
with heirs, witli
their assent.
K. S. 60, § li.
3 Pick. 475.
5 Piclc. 1«.
Dower, how re-
leased.
K. S. fiO, § 7.
1851), l(i9.
•■! Mason, 347.
3 Greenl. (8.
7 Mass. 14.
8 Pieli. 5:!li.
18 Pick. y.
0 Cush. 106.
how barred
by jointure.
K. S. (JO, §8.
7 Mass. 153.
15 Mass. loij.
2 Cush. 407.
6 Cush. 196.
by pecuniary
provision.
U. S. OO, § 9.
If jointure is
settled or made
without wife's
assent, she may
elect.
K. S. 60, § 10.
Widow not
dowable of wild
lands.
K. S. 60, § 12.
15 Mass. 161.
1 Pick. 21.
7 Pick. 143.
If evicted, may
be endowed
anew.
R. .S. 60, § 1.3.
13 Mass. 168.
1 Met. 66.
Penalty for
waste by tenant
in dower.
K. ,S. 60, § 15.
5 Mason, 13.
7 Pick. 152.
Widow of intes-
tate without is-
sue to take half
of real estate
hundred and sixty-three, widows shall not be entitled to make claim for
dower, or commence any action or other proceeding for the recovery
thereof^ unless the same is made or commenced within twenty years
from the decease of the husband; except that if at the time of the hus-
band's decease the widow was or shall be absent from the state, under
twenty-one years of age, insane, or imprisoned, slie may make such
claim or commence sucli action or proceeding at any time within twenty
years after such disability ceases.
Sect. 7. When a widow is entitled to dower in lands of which her
liu.sband died seised, she may continue to occupy the same with the
children or other heirs of the deceased, or to receive oiu-third part of
the rents, issues, or profits, thereofj so long as the heirs do not object
thereto, without having her dower assigned; and whenever the heirs or
any of them deem it proper to hold or occupy their share in severalty,
the wi<low may claim her dower and shall have the same assigned to
her according to law.
Sect. 8. A married woman may bar her right of dower in any estate
conveyed by her husband, or by operation of law, by joining in the
deed conveying the same, and tlierein releasing her right to dower ; or
by relea.sing the same by a subsequent deed executed separately, or
jointly with her husband. And her dower may also be released in the
manner jirovided in chapter one hundred and eight.
Sect. 9. A woman may also be barred of her dower in all the lands
of her husband, by a jointure settled on her with her assent before her
marriage : protn<h'd, such jointure consist of a freehold estate in lands
for the life of the wife at least, to take effect in possession or profit
immediately on the death of the husband; her assent to such jouiture
being expressed, if she is of full age, by her becoming a party to the
conveyance by which it is settled, and if she is under age, by her join-
ing with Iier father or guardian in such conveyance.
Sect. 10. Any pecuniary provision made for the benefit of an intended
wife, and in lieu of dower, shall, if assented to as jirovided in the pre-
ceding section, bar her right of dower in all the lands of her husband.
Sect. 11. If sucli jointure or peeuniaiy provision in lieu of dower is
made before the marriage and without tlie assent of the intendeil wife,
or if it is made after marriage, it shall bar her dower, unless within six
months after the death of her husband she makes her election to waive
such provision and be endowed of the lands of her husband. If the
husband dies while absent from his wife, she shall have six months
after notice of his death within which to make such election ; and she
shall in all cases have six months for that purpose, after notice of the
existence of such jointure or ])rovision.
Sect. VI. A widow shall not be endowed of wild lands of which her
husband dies seised, nor of wild lands conveyed by him, .although they
should be afterwards cleared ; but this shall not bar her right of dower
in any wood lot or other land used with the farm or dwelling-house,
although such wood lot or other land has never been cleared.
Sect. 13. If a woman is lawfully evicted of lands a.ssigned to her
as dower or settled u]ion her as jointure, or is deprived of the provision
made for her by will or otherwise in lieu of dower, she m.iy be endowed
anew in like manner as if such assignment, jointure, or other provision,
had not been made.
Sect. 14. If a tenant in dower commits or suffers waste on the
premises held in dower, she shall forfeit the jilace wasted, and also the
amount of damage done to the premises, to be recovered in an action of
waste by the person having the next immediate estate of inheritance.
Sect. 15. Wlien a man dies seised of lands, tenements, or heredita-
ments, or of any right or interest therein in fee sim])lc, not having law-
fully devised the same, and leaving a ^\idow, but no issue, the widow in
Chap. 90.] estates by the curtesy and at sufferance. 471
lieu of dower shall be entitled to one-half of said estate durinp; her for ufp, &c.
natural life; and if any part thereof taken by the widow is wUd or i^^- *''' ^^ *'
woodland, she may use, clear, and improve, the same.
Sect. 16. The widow may have her dower instead of the provisions widow may at
of the preceding section, if within six months of the date of the letters !,'!,'v,! d,'['J.""
of administration she files in the probate office her election to claim ijv)4, 400, § 4.
dower.
Sect. 17. When a widow is entitled to any undivided p.irt, or the Undivided es-
use and improvement of any undivided jnirt, of tlie real estate of her estate onlus-""
husband for the term of her life or widowhood, by the provisions of the i)a>id ni;iy be
will of her husband, in lieu of dower, or by any provisions of law, the dower."
probate court in the county where the estate of the husband is settled, J^- IJ'-
may cause her interest in said estate to be set oil and assigned to her
in like manner as dower.
Sect. 18. A widow may remain in the house of her husband forty widow may re-
days after his death without being chargeable with rent. I™'" '" ''""se,
Sect. 19. When a man and his wite are seised in her right, and when it. s.eo, §16.
a married woman is seised to her sole and separate use, free fiom the ^^"^ ''■"''' J ^'
,,,,,,-,,. ^ . , .f -IT 1 , Tenant by the
control 01 licr husband, 01 any estate 01 inheritance in lands, ana they curtesy.
shall have issue born alive which might inherit the same, the husband J^f '.ijis ^ "'■
shall on the death of his wife hold the lands for his life as a tenant i.-^irio4.
thereof by the curtesy. J'"Gra>-',''4o7.
Sect. '20. When land is demised for the term of one hundred years Terms for 100
or more, the term shall, so long as fifty years thereof remain unexjiired, i^'reuuftatl?''
be regarded as an estate in fee simple, as to every thinsi concerninir the &«.
descent and devise thereof upon the decease of the owner, the right 5 ji„'s8.'4i9. '
of dower therein, the estate in lieu of dower, and the sale thereof by SeeCii.ws.Ho.
executors, administrators, or guardians, by license from any court ; and
also as to the levying of executions thereon, and the redemption thereof
when taken on execution or mortgaged.
Sect. 21. Whoever holds as lessee or assignee under such a lease, Such tenant a
shall, so long as fifty yeare of the term are unexpired, be regarded as a iifs. "oo.'s'ig.
freeholder for all ]iur])oses.
Sect. 2'2. When dower, or an estate in lieu of dower, is assigned out Tenant in dow-
of such land, the widow and her assignee shall be held to pay to the forpaj-t of''rcnt
owner of the unexjHred residue of the term, in ease of dower, one-third, k. s. 00, §20.
and in case of an estate in lieu of dower, one-half, of the rent reserved
in the lease under which the husband held the term.
Sect. 23. No devise of any such term by will, made before the first Prior devises,
day of Jime in the year one thousand eigl)t hundred and thirty-four, ^.rnisnotaffoct-
althougli the devisor shall have died after that day, and no other eon- id.
veyance thereof made before said first day of June, shall be controlled 10 jiaBs! 437!
or affected by any thing contained in the three preceding sections.
Sect. 24. Every person in jsossession of land out of which rent is Tenant of part
le, wliether it was originally demised in fee or for any other estate of naiiil'VuV' "ut?
freehoitl, or for any term of years, shall be liable for the amount or }!•
proportion of rent due from tlie land in his possession, although it is -A jpi'ck.'rios.'
only a part of what was originally demised. 3 p'^ 'f,^^.
Sect. 25. Tenants at sufferance in possession of lands or tenements „t sufferance,
shall be liable to pay rent therefor for such time as they may occupy or Uabic lor rent.
detain the same.
Sect. 26. Such rent may be recovered in an action of contract ; and Rent, how re-
the deed of demise or other instrument in writing, if there is any, show- i-'/sI^'iJr, § 23.
ing the ])rovisions of the lease, may be used in evidence by either party iss-', 312.
to prove the amount of rent due fi-om the defendant.
Sect. 27. Such action may be brought by or against executors and Action by or
administratoi's, for any arrears of rent accrued in the lifetime of the inrs, &c.
deceased ]iarties respectively, in the same manner as for debts due tiom k. s. go, §24.
or to the same parties in their lifetime on any personal contract.
■i/.
ESTATES AT WILL, EASEMENTS, ESTATES TAIL. [ChAP. 90.
7,;iiidlord8 not
deprived of oth-
n- remedies.
!:. S. (30, § 25.
Kent deemed
uecessiiries.
jSo',1, u;r.
Written leases,
how termi-
iijited if, &c.
is4r, aw, § 1.
s Cush. 2m.
2 firay, 224.
See Cli. 137, § 3.
Tenancy at will,
Iiow termi-
nated.
R. S-. 60, § 26.
IT Mass. 2S2.
1 Pick. 43.
2 Pick. ro.
6 Pick. 339.
23 Pick. 104.
2 Met. 20.
12 Met. 300.
13 Met. 275.
5 Cush. 1.33, 563.
G Cush. 87.
Easements of
lif^ht, &c., not
acquired by use.
1852, 144.
0 Gray, 255.
acquired by
use for 2U years.
R. S. 60, § 27.
1852, 144.
7 Met. 3U8.
acquiring of,
prevented by
notice served
and recorded.
K. S. 60, § 28.
1852, 144.
i3ee Ch. 154, § 14.
Sect. 28. Nothing contained in the eight preceding sections shall
deprive landlords of any other legal remedy for the recovery of their
rents, whether secured to them by their leases or provided by law.
Sect. 29. Debts for the rent of a dwelling-house, occupied by the
debtor or his family, shall be held to be claims for necessaries.
Sect. 30. Upon neglect or refusal to pay the rent due according to
the terms of any written lease, fourteen days' notice to quit, given in.
writing by the landlord to the tenant, shall be sufficient to determine
the lease.
Sect. 31. Estates at will may be determined by either party, by
three months' notice in writing for that purpose given to the other
jiarty ; and when the rent reserved is payable at periods of less than
three months, the time of such notice shall be sufficient Lf it is equal to
the interval between the days of ]:)ayment ; and in all cases of neglect
or refusal to pay the rent due on a lease at will, fourteen days' notice to
quit, given in writing by the landlord to the tenant, shall be sufficient to
determine the lease.
7 Cush. 346.
8 Cush. 2*3.
11 Cush. 03.
12 Cush. 174.
2 Gray, 224, .335.
5 Gray, 308.
6 Gray, 224.
7 Gray, 197.
Service of such
notice when ad-
verse claimant
is unknown.
1S51, 218.
Estates tail, lia-
ble for debts,
&c.
R. S. 60, § 29.
4 Mass. 195.
3 Gray, 183.
Continjjent es-
tate alienable.
B. S. 00, § 30.
Sect. 32. Whoever has erected or may erect any house or other
building near the land of another person, with windows overlooking
such land, shall not by the mere continuance of such windows acquire
any easements of light or air, so as to prevent the erection of any build-
ing thereon.
Sect. 33. v No person shall acquire a right or privilege of way, nor
any other easement, from, in, ujion, or over, the land of another, by the
adverse use or enjoyment thereof, unless such use has been continued
uninterrupted for twenty years.
Sect. 34. The owner of the land in such case may give notice in
writing, to the person claiming or using the privilege, of his intention to
dispute the right of way or other easement, and to prevent the other
party from acquiring such right ; and such notice, being served and re-
corded as hereafter provided, shall be deemed an interruption of such
use, and shall prevent the acquiring of a right thereto by the continu-
ance of the use for any length of time thereafter. Such notice shall be
served like an original summons in civil actions on the other party, or
his agent, or guardian, if within the state, otherwise on the tenant or
occupant of the estate, if there is any, and if not, a copy of the notice
shall be affi.xcd to the house or to some other conspicuous ]iart of the
premises. The service shall be indorsed and returned on tlie original
paper ; and the notice with the return shall be reconled in tlie registry
of deeds for the county or district where the land lies, within three
months after the service. Every such notice given by the guardian or
agent of the owner of tiie land shall have like eifect as Lf given by
himself.
Sect. 35. The notice under the preceding section, when an owner of-
the adjoining land to be notified is unknown, may be given by consjjicu-
ously affixing to or posting on the ])remises a copy thereof, and serving
the same on the person to whom the premises were last assessed for
taxes in the place where they lie, and recording the same as required in
said section.
Sect. 36. All lands held in fee tail shall be liable for the debts of
the tenant in tail, both in his lifetime and after his decease, like estates
in fee sim])le ; and when taken on execution, or sold by executors, ad-
ministrators, or guardi.-ms, tlie creditor or purchaser shall liold the same
in fee simple ; but this shall not extend to lands in which the debtor has
only an estate tail in remainder.
Sect. 37. When any contingent remainder, executory de^^se, or
other estate in expectancy, is so granted or limited to any person that
Chap. 91.]
DESCENT OP REAL PROPERTY.
473
iu case of his death before the happening of the contingency the estate
would descend to his lieirs in fee simple, such person may, before the
happening of the contingency, sell, assign, or devise, the premises, sub-
ject to the contingency.
Sect. 38. Aliens may take, hold, transmit, and convey, real estate ; Aiic ns mny
and no title to real estate shall be invalid on account of the alienage of J^tatcf&c."'
any former owner : but nothing contained in this section shall defeat iw;.!,^tf, «"■
• t ^ 15 1 ick 34U
the title to any real estate heretofore released or conveyed by the com-
monwealth or by authority thereof.
Sect. 39. When woodland is held by one person for life, with re- s. j. c. mny ai-
mainder or reversion to another in fee simple or fee tail, and the trees ii™to™ut°*io'wn
thereon have come to an age and growth fit to be felled, and are in such trpcs-
a state that they will probably become of less value by standing, the Jiis. actof''
supremo judicial court, may, on the petition of a party interested therein, ameud. §7.
order the trees or any part thereof to be felled and sold.
Sect. 40. The court in such case shall appoint one or more commis- rommissioncrs
sioners to sujierintend and direct the felling and sale of the trees, and J^' s»i'>;rmttiKi,
to account to the court for the proceeds thereof. ';■ s. 60, §34.
Sect. 41. The court may cause the proceeds of such sale, after de- amiVid."§ 7.
ducting therefrom all necessary ex])enses and charges, to be invested in riuwcds may
other real estate, or in public stocks, or other stocks or funds, as sh
appear most for the interest of all concerned therein ; and may appoint i><>inted.
one or more trustees to take and hold such estate or stocks, and to dis- u! K act of '
pose of the same and of the interest or income thereof, under the direc- am<">d. §7.
tion of the court, to and for the use of the persons entitled to the land.
Sect. 42. The interest and income of the proceeds shall be paid to income to bp
the tenant for life, so long as he is entitled to the profits of the land, 'v',r'iiic;'princi-
and ujton the determination of his estate, the principal shall belong to j'"' '" o"icr m
the person who is entitled to the land in fee simjile or fee tail ; and the k.'s. co, §30.
real estate, stocks, or funds, in which the proceeds are invested, shall be J5;,Jli(i'.'^5 " '
conveyed and transferred to such person accordingly.
Sect. 43. The court may from time to time remove the trustees and Trustees may
appoint others in their stead; and every trustee shall give bond with sJiangi'rebond.
sufficient sureties to the clerk of the court, or to such other person as j|- ^- ''"'§•]?
the court shall designate, for the use and benefit of the ])ersons inter- amciid. §7.
ested in the proceeds, with condition for the faithful discharge of the
trust.
It III' iiivesti-d, and
" ti-ustees up-
TITLE II
CHAPTER 91
OF TITLE TO REAL PROPERTY BY DESCENT.
SECTiny
1. General rules of descent.
2. Illeji;itiraate child to inherit from mother,
&c.
3. mother to he heir to.
4. whose parents intermarry, &c.
5. Defjrees of kindred, how computed. Half
blood to inherit.
6. Advaneenieut to child or other descend-
ant.
40* 60
Section
7. Advancement in real or personal estate to
be taken as part thereof, &c.
8. how proved.
9. value of, how ascertained.
10. If person receiving' advancement dies be-
fore intestate.
11. Estates by curtesy, iu dower, .fee., not af-
fected.
12. Construction of terms.
474
DESCKNT OF REAL ESTATE.
[Chap. 91.
General rules of
descent.
E. S. (il, § 1.
1857, 2i)S.
7 Met. 3ca.
9 Met. as.
4 Gray, 215.
0 Cush. 156.
12 Mass. -190.
1849, 87.
E. S. 61, § 1.
1849, 87.
lUe^itim.'ite
child to inherit
from mother,
&c.
E. S. 61, § 2.
1851, 211.
11 Met. 204.
2 Gray, 5:«.
mother heir
to.
E. S. 61, § 3.
4 Pick. m.
whose par-
ents iatermar-
ry, &c.
1853, 25.'), § 1.
Degrees of kia-
dred, how com-
puted. Half
blood to inlierit.
E. S. (11, §5.
A-dvaucement
Section 1. When a person dies seised of land, tenements, or here-
ditaments, or of any right thereto, or entitled to any interest tlierein, iu
fee simple or for tlie life of another, not having lawfully devised the
same, they shall descend, subject to his debt.s, (except as provided in
chapter one hundred and four,) in manner following : —
First. In equal shares to his children and the issue of any deceased
child by right of representation ; and if there is no child of the intestate
living at his death, then to all his other lineal descendants ; if all the
descendants are Ln the same degree of kindred to the intestate, they
shall share the estate equally ; otherwise they shall take according to
the riglit of representation :
Second. If he leaves no issue, then to his ftither:
Third. If he leaves no issue nor father, then in equal shares to his
mother, brothers, and sisters, and to the children of any deceased brother
or sister by right of representation :
Fourth. If he leaves no issue, nor father, and no brother nor sister,
living at his death, then to his mother, to the exclusion of the issue, if
any, of deceased brothers or sisters :
Fifth. If he leaves no issue, and no father, mother, brother, nor sis-
ter, then to his next of kin in equal degree ; except that when there
are two or more collateral kindred in equal degree, but claiming through
different ancestors, those who claim through the nearest ancestor shall
be preferred to those claiming through an ancestor who is more remote :
provided,
Sixth. If a person dies leaving several children, or leaving one child
and the issue of one or more others, and any such surviving child dies
under age and not having been married, all the estate that came to the
deceased child by inheritance from such deceased parent, shall descend
in equal shares to the other cliildren of the same pai-ent, and to the
issue of any such other children who have died, by right of represen-
tation :
Seventh. If at the death of such child who shall have died under
age and not having been married, all the other children of his said parent
are also dead, and any of them have left issue, the estate that came to
such child by inheritance from his said parent shall descend to all the
issue of the other children of the same jiarent ; and if all the issue are
in the same degree of kindred to the child, they shall share the estate
equally ; otherwise they shall take accortling to the right of represen-
tation :
Eighth. If the intestate leaves a widow and no kindred, his estate
shall descend to his widow ; and if the intestate is a married woman
and leaves no kindred, her estate shall descend to her liusband :
Ninth. If the intestate leaves no kindred, and no widow or husband,
his or her estate shall escheat to the commonwealth.
Sect. 2. An illegitimate child shall be heir of his mother and any
maternal ancestor, and the lawful issue of an illegitimate person shall
represent such person and take by descent any estate which the parent
would have taken if living.
Sect. 3. If an illegitimate child dies intestate, without lawful issue,
his estate shall descend to his mother.
Sect. 4. An illegitimate child whose parents have intermarried and
whose father has acknowledged him as his child, shall be considered
legitimate.
Sect. 5. The degrees of kindred shall be computed according to
the rules of the civil law ; and the kindred of the half blood shall in-
herit equally with those of the whole blood in the same degree.
Sect. 6. Any estate, real or personal, given by the intestate in his
lifetime as an advancement to any child or other lineal descendant,
shall be considered as part of the intestate's estate, so far as it regards
Chap. 92.] wills, 475
the division and distribution thereof among his issue, and shall be taken to child or other
by such child or other descendant towards his share of the intestate's '('"s^i'ii^lo, 7.
estate ; but he shall not be required to refund any part thereof, although i i*i<:k. lei.
it exceeds his share. . See ch. we. § C6.
Sect. 7. If such advancement is made in real estate, the value there- Advancement
of shall be considered as part of the real estate to be divided; if it is in "maTestateto
personal estate, it shall be considered as part of the personal estate; bt> taken as part
and if in either case it exceeds the share of real or personal estate u.^.^Wn'.
respectively that would have come to the heir so advanced, he shall not "^ ^''^*- -""•
refund any part of it, but shall receive so much less out of the other part
of the estate as will make bis whole share equal to those of the other
heirs who are in the same degree with him.
Sect. 8. All gifts and grants shall be deemed to have been made how proved.
in advancement, if they are expressed in the gift or grant to be so made, " ImJi;! ii.
or if charged in writing by the intestate as an advancement, or acknowl- ^J^^^- 52?-.
edged in writing as such by the child or other descendant. ruray.'ssr!
Sect. 9. If the value of the est.ate so advanced is exjiressed in the value of, how
conveyance, or in the charge thereof made by the intestate, or in the K.'^sfoM 10.
acknowledgment by the party recci\ing it, it shall be considered as of
that value in the division and distribution of the estate ; otherwise it
shall be estimated according to its value when given.
Sect. 10. If a child or other lineal descendant so advanced dies Tf person reeeiv-
before the intestate, leaving issue, the advancement shall be taken into mTOt'diesbeibrc
consideration in the division and distribution of the estate; and the i'"'^:?''',*''-
amount thereof shall be allowed accordingly by tlie rejirescntatives of ' '
the heir so advanced, as so much received towards their share of the
estate, in like manner as if the advancement had been made directly to
them.
Sect. 11. Nothing contained in this chapter shall aifcct the title of a Estate's bj- cur-
husband as tenant by the curtesy, nor that of a widow as tenant in ICl^',m','ta(k"tud.
dower, nor her right to any part of the real estate of her husband given !'•.?•."'' tl~- „
to her by law in neu 01 dower.
Sect. 12. Inheritance or succession, "by right of representation," Construction of
takes place when the descendants of a deceased heir take the same share k"s.''gi, § 13.
or right in the estate of another person that their parent would have
taken if living. Posthumous children are considered as hving at the
death of their parent.
TITLE III
CHAPTER 92.
OF WILLS.
Section
1. Real estate may be disposed of by will, A-f .
2. Personiil estate may be disposed of by will,
&c.
3. Devise of land to c.irry ri^ht of entry, »fcc.
4. OBtate acquired after,
5. General devise how construed.
SErTioy
(1. AVills, how made.
7. made under existing- laws, valid.
8. made out of state.
0. who may make nuncupative.
10. Devise, &e., to attesting' witness, to be void
unless, &c.
476
\VILLS.
[Chap. 92.
SlCCTIOX
1 1 . Will, how revoked.
12. may be dopusited for Bafe keepings in
registry of probate-
13. .Such will to be euclosed in sealed wrapper,
&c.
14. to whom to be delivered.
15. when to be opened by probate court.
IG. Possessor of will to deliver it, Ac, withiu
thirty days after testator's decease.
17. Proceedings ag;aiust per.sonM suspected of
concealing wills, »fec.
18. Costs may be allowed and execution issued.
19. Will how proved wiien not objected to.
20. Mode of trial on .appeal to 8. .J. C, in case,
&c.
21. Will proved out of state, how allowed here.
22. allowance of, Ac.
23. Estate to be settled as in other cases.
24. Widow may waive provisions of husband's
will, and take as if he died intestate, &c.
25. Case of child, &c., not provided for.
.Sk<;tion
20. Case of posthumous child having no pro-
vision.
2r. Devisees, &c., to contribute equally to share
of posthumous child, &c.
28. Case of devisee dying before testator and
leaving issue.
29. When estate devised is taken for debts,
other devisees to contribute.
30. Uuless diflerent appropriation is made by
the will.
3). Whole estate liable for debts.
32. Child, &c., omitted in will, liable and enti-
tled to contribution as devisee.
33. Case of insolvency of devisee, Ac.
34. Undevised real estate first liable for debts.
35. Proceedings in suits for contribution.
30. Devisees to contribute equally wheu dow-
er, Ac, is t .ken from oue.
3r. Such cases how decided.
38. No will etfectual without probiite. Probate
conclusive.
Real estate may
be disposed of
by will, &c.
K. S. 02, § 1.
12 Mass. 488.
18 Pick. 115.
2 Gray, 524.
8 Gray, 24.
7 Gray, 71.
See Ch. 10s, § 9.
Personal estate
maybedisp;i.-ied
of by win, .Vc.
K. .S. (K, 5 j.
1 Pick. 2^(9.
2 Gray, 524.
7 Gray, 71.
See Ch. 108, § 9.
Devise of laud
to carry rigiits
of entry, &c.
E. S. B2, § 2.
10 Mass. 131.
15 Mass. 115.
12 Met. 503.
estate ac-
quired after.
K. S. 1)2, § 3.
« .Mass. 149.
5 Pick. 112.
7 .Met. 140.
12 Met. 109, 203.
1 Cush. 107, US.
3 Cush. 308.
General devire,
how construed.
K. S. 02, § 4.
1 Cush. 93.
4 Gray, 350.
Wills, how
made.
K. .S. 02, § fi.
4 Grecul. 220.
5 Mass. 229.
12 .Mass. .358.
14 Mass. 421.
3 Pick. .374.
9 Pick. 350.
1 Met. 349.
10 Met. 54.
2 Cush. 433.
7 Gray, 42.
made under
existiug laws
valid.
1838,2.
m;idc out of
etatc.
Sectiox 1. Every person of full .age and of sound mind being seised
in his own right of any lands, tenements, or hereditaments, or of any
right thereto, or entitled to any interest therein, e.xeepting an estate tail,
may devise and dispose of the same by his last will and testament in
writing; and all such estate not disposed of by the will shall deseend as
the estate of an intestate ; being chargeable in both cases with the pay-
ment of all his debts.
Sect. 2. Every ])erson of full age and of sound mind, may, by his
last will and testament in writing, bequeath and dispose of all his ])er-
son:il estate remaining at his decease, and all his right thereto and
interest therein ; and all such estate not disposed of by will shall be
administered as intestate estate.
Sect. 3. When a person devises lands of which he is not thru seised,
but to or for which ho has any right of entry, or when aftei- making a
devise the devisor is disseised or ousted of the devised premises, they
shall nevertheless pass to the devisee in like manner as they would have
descended to the heirs of the devisor if he had died intestate ; and the
devisee shall have the like remedy for the recovery thereof, either by
entry or by action, as the heirs might have had.
Sect. 4. Any estate, right, or interest, in lands acquired by the tes-
tator after making his will, shall pass thereby in like manner as if
possessed at the time of making the will, if such clearly and manifestly
appears by the will to have been the intention of the testator.
Sect. 5. Every devise of land, in any will made after the last day of
April in the year eighteen hundred and thirty-six, shall be construed to
convey all the estate of the devisor therein which he could lawfully
devise, unless it clearly appears by the will that the devisor intended to
convey a less estate.
Sect. 6. No wills, except such as are mentioned in the three follow-
ing sections, shall be effectual to pass any estate, real or personal, nor to
cli.irge or in any way affect the same, unless it is in v.iiting and signed
by the testator, or by some person in his jiresence and by his exju'css
direction, and attested and subscribed in his presence by three or more
competent witnesses. If the witnesses are competent at the time of
attesting the execution of the will, their subsequent incompetency, from
whatever cause it arises, shall not prevent the probate and allowance of
the will, if it is other\\'ise satisfactorily proved.
Sect. 7. A will of real or personal estate made and executed in con-
formity with the law existing at the time of the execution thereof, shall
be effectual to pass such estate.
Sect. 8. A will made out of this state, which might be proved and
Chap. 92.] wills. 477
allowed according to the laws of the state or country in which it wns i.«4ji, 02, §51.2.
made, may be proved, allowed, and recorded, in this .^tate, and shall "' "'' '' ■" '
thereii|ion have the same effect as if it had been executed according to
the laws of this commonwealth.
Sect. 9. A soldier in actual military service, or a mariner at sea, may wii<> may make
disjjose of his wages and other personal estate by a nuncupative will, as ^'vi'i'i'.'""'''' "'
he miiiht heretofore have done. }};.^- '''-; § ;■
Sect. 10. All beneficial devises, legacies, an<l gifts, made or given peyjse^ ^^^ to
in any will to a subscribing witness thereto, shall be wholly void unless attesting wit-
there are three other competent subscribing witnesses to the same; but miu'^ss, &c.^ " '
a mere charge on the lands of the devisor for the payment of debts shall K-S. 02, §8.
not prevent his creditors from being competent witnesses to his will.
Sect. 11. No will shall be revoked, unless by burning, tearing, can- wiii, how re-
celling, or obliterating, the same, with the intention of revoking it, by K°''^'.''g.> 59.
the testator himself, or by some person in his presence and by his direc- 4 Greeni. 3-11.
tion ; or by some other will, codicil, or writing, signed, attested, and 4'\;ra"y,'''i63^'
subscribed, in the manner provided lor making a will ; but nothing con-
tained in this section shall prevent the revocation implied by law from
subsequent changes in the condition or circumstances of the test.itor.
Sect. 12. A will may be deposited by the person making the same, maybedepos-
or by any person for him, in the registry of probate in the county where k'l'i'iug.ui're-
the testator Uves, to be safely kept until delivered or disposed of as j-nstryofpro-
hereinafter provided; and the register, u]ion Ijeing paid the fee of one k. s. 02, §10.
dollar therefor, shall receive and keep such will and gi\e a certificate of
the dej)osit thereof.
Sect. 13. Every will intended to be deposited as aforesaid, shall to ho onriosed
be enclosed in a sealed wrajjper, shall have indorsed thereon the name J,"r^,''^c.'* ^'"'°''"
of the testator, his place of residence, the day when, and the person K. s. 02, §11.
by whom, it was delivered ; and may have indorsed thereon the name
of any person to whom it is to be delivered alter the death of the
testator ; and it shall not be opened nor read until delivered to a
jjerson entitled to receive the same, or otherwise disposed of as here-
inafter provided.
Si-;cT. 14. Such will shall, during the lifetime of the testator, be towhomtobe
delivered only to himself^ or to some person authorized by him by an u. s. 02, § 12.
order in writing duly proved by the oath of a subscribing witness ; and
after his death, it shall be delivered to the person named in the in-
dorsement on the wrapper of the will, if there is a person so named
who shall demand it.
Sect. 1.5. If no person demands the will in pursuance of such when to be
appointment, it shall be publicly openeil at the first )irobate court held ^p'cmirt.''™'
after notice of the testator's death, and shall be retained in the registry H- S- 1>2, § 13.
until it is there oiTered for probate ; or if the jurisdiction of the case
belongs to another court, it shall be delivered to the executors or other
persons entitled to the custody thereof, to be presented for probate in
such other court.
Sect. 16. Every person, other than the register of the probate Possessor of
court, having the custody of a will, shall, within thirty days after iJ.'.^.,." withfu
notice of the death of the testator, deliver it into the probate court ;iii;ty<i.iys alter
, . , , . . ,. . ^ , ' , , ^ 1 • U.T- testator's de-
which has jurisdiction of the case, or to the executors named m the cease.
will ; and if, without reasonable cause, he neglects to do so after being ''^jreenLV^i'
duly cited for that pui-pose by said court, he may be committed to the 4 Mass. 137.
jail by warrant of the court, there to be kept in close custody until he * ''"^''- ^'■
delivers the wall as above directed ; and he shall be further liable to
any party aggrieved for the damage svistained by such neglect.
Sect. 17. Upon complaint under oath made to the probate court Proeeedings
by a person claiming to be interested in the estate of a person de- "(;!!{," rtod'of""^
ceased, against any one suspected of retaining, concealing, or con- <o uealiiig
spiring with others to retain or conceal, any will or testamentary ib49^'i«,'§ 1.
SeeCh.lfil,§§19,20.
478 WILLS. [Chap. 92.
instrument of the deceased, the judge may cite the suspected person
to appear before him and be examined on oath upon the matter of the
complaint. If the person cited refuses to appear and submit to exam-
ination, or to answer such interrogatories as shall be lawfully pro-
pounded to him, or to obey any lawful order, the judge may commit
him to the jail, there to remain in close custody until he submits to the
See ch. 161, §30. order of the court. All such interrogatories and answers shall be in
writing and signed by the party examined, and shall be filed in the
probate court. But nothing in this section shall authorize the judge to
require a person to criminate himself
Costs. Sect. 18. On such complaint the judge, in his discretion, may
1849, 146, §2. award costs to be paid by either party, and may issue execution
therefor,
wiii.how Sect. 19. When it appears to the probate court, by the consent
proved when j^ ■^vriting of the heirs at law, or other satisfactory evidence, that no
not objected to. . ^ i • i • i i • i \
■ K. s. («, § 15. person interested in the estate intends to object to the probate of a
5 Koktsio'.' ^''11' ^^^^ court may grant probate thereof upon the testimony of one
only of the subscribing witnesses.
Modeof trial on Sect. 20. Upon an appeal from the probatc of a will, if it appears
apprai tos.J. fi'om the reasons of appeal that the sanity of the testator or the attesta-
K. s. 62, § iG. tion ot the witnesses in his presence is in controversy, the su] ireme
judicial court may for the determination thereof direct a real or feigned
issue to be tried by a jury in the same court, at the expense of the
ajjpellant if the issue is found against him.
Will proved out Sect. 21. The executor or any person interested in a will proved
iowcd"iie'ro" '^ ^^'^ allowed in any other of the United States, or in a foreign country,
E. s. 62, §§ 17, according to the laws of such state or country, may produce a copy of
the will and of the probate thereof, duly authenticated, to the probate
court in any county in which there is any estate, real or personal, on
which the will may operate ; whereupon the court shall assign a time
and place for hearing the case, and shall cause notice theteof to all
persons interested to be given in some ]iublic newspaper three weeks
successively, the first publication to be thirty days at least before the
time assigned.
aUowance of, Sect. 22. If it appears that the instrument ought to be allowed in
*"•„ ^, -jg this state as the last will and testament of the deceased, the court shall
I84:i,'s)2.' ' order the copy to be filed and recorded. The will shall then have the
I'orceni. 134. samc force and effect as if it had been originally proved and allowed in
16 Mass. 43:!. the same coiirt in the usual manner ; but nothing in this section sh.all
i2^Me't.^42'4. give effect to a will made in this state l:>y an inhabitant thereof not
executed according to the laws of this commonwealth.
Estate to be set- Sect. 23. After allowing and recording a will pursuant to the two
cases"' '" "^^"^ preceding sections, the ]irobate court shall grant letters testamentary
K. S.62, §20. thereon, or letters of administration with the will annexed, and shall
proceed in the settlement of the estate that may be found in this state,
in the manner provided in chapter one hundred and one with respect
to the estates of persons who were inhabitants of another state or
country.
Widow may Sect. 24. When a man dies having lawfully disposed of his estate
ious on™"^ by will and leaving a widow, she may, at any time within six months
band's will, &c. after the probate of the will, file in the probate office in writing her
iKsi, 428. ' waiver of the provisions made for her in the will ; and shall in such case
H }!•"!'• !^!;- be entitled to such portion of his real and personal estate as she would
1 Met. 72. have been entitled to if her husband had died intestate. If she makes
ioiet.'^2ai. no such waiver, she shall not be endowed of his lands, unless it plainly
4 Cush. 175. ap))ears by the will to h.ave been the intention of the testator that she
"^^^' ' should have such provisions in addition to her dower.
&c^°n'ot''pro?' Sect. 25. When a testator omits to provide in his will for any of
vided for. his children, or for the issue of a deceased child, they shall take the
Chap. 92.] wills. 479
same share of his estate, both real and personal, that they would have n. s. k. § 21.
been entitled to if he had died intestate; unless they shall have been 1 SiShb.'
provided for by the testator in his lifetime, or unless it appears that r' ^^j"*"*- s^o-
such omission was intentional, and not occasioned by accident or uMass. ssr.
mistake iiJi<t.4no.
mi»iaK.t. -.'(iray, 535.
Sect. 26. When a child of a testator, bom after his father's death, x Gray, 367.
has no provision made for him bv his father, in his wiU or otherwise, he Cnseof po»t-
i ..-,,, '., . , ', humous chiUI
shall take the same share ot his lathers estate, both real and personal, iiiiyiug; no pro-
that ho would have been entitled to if his father had died intestate. itf s.'oa, § 22.
Sept. 27. When a portion is assigneil to a ])osthumous child, or to povisecs,&c.,to
a child or the issue of a child omitted in the will of his parent, as men- enu!,'"i'iy"/o B^are
tioned in the two preceding sections, the same shall be taken equally 01 poBtimmous
from all the devisees and legatees, in proportion to the value of what i{'.'IiI'o2,'^523.
they respectively receive under the will ; unless in consequence of a
specific devise or bequest, or of some other provision in the will, a dif-
ferent apportionment among the devisees and legatees is found neces-
sary, in order to give etfect to the intention of the testator as to that
part of his estate which passes by his will.
Sect. 28. When a devi.se of real or personal estate is made to a Case of devisee
child or other relation of the testator, and the devisee dies before the t,^^'t'!a,!r,'and
testator, lea^^ng issue who survive the testator, such issue shall take ''."*.'"» '^'',!"'-
the estate so devised in the same manner as the devisee would have Cis.Tom.Taib.
done if he had survived the testator ; unless a ditierent disposition j;"^.y ^'^Sciio. &
thereof is made or required by the will. 5 Met. m.
Sect. 29. When any estate, real or person.al, that is devised, is taken wiicn estate de-
from the devisee for the pajTuent of the debts of the testator, all the fOT'd'ebts',"otYicr
other devisees and legatee? shall contriltute their resjieetive proportions divi«eos tocou-
of the loss to the person from whom the estate is taken, so that the loss n. s. «a, §25.
shall fdl equally on all the devisees and legatees according to the value 1 Cu^u. lur.
of the })roperty received by each ; except as jjrovided in the following
section.
Sect. 30. If in such ease the testator, by making a specific devise or unless a ditrrr-
bequest, has virtually exempted any devisee or legatee from liability to tlon''is''mu'de"'i)y
contribute witli the others for the payment of the debts, or if by any other \["'g"'i;'.!- , .,p
provisions in his will he has prescribed or required any appropriation of
his estate for the payment of his debts different from that prescribed in
the preceding section, the estate shall be appropriated and applied in
conformity with the will.
Sect. 31. Nothing contained in the two preceding sections shall ini- whole estate u-
pair or in any way affect the liability of the whole estate of the testator u. S. (;2,§"^27^'
for the payment of his debts ; but the ])rovisions in these sections sjiall
apply only to the marshalling of the assets, as between those who hold
or claim under the wall.
Sect. 32. When part of the estate of a testator descends to a child CTiiid,<fec ,omit-
or other descendant by reason of his having no provision made for him bie and entitled
in the will, or when it descends to a posthumous child, such estate shall, *° ^e^'Jee"*''"''
for all the purposes of the three preceding sections, be considered as if k. s. 62, §'28.
it had been devised to such child or other descendant ; and he shall be
bound to contribute with the devisees and leg.atees, and entitled to
claim contribution from them, as before provided.
Sect. 33. When any person liable to contribute towards the dis- Caseofinsoi-
charge of such debt according to the provisions of the four preceding S^&'c!^'''^'''
sections, is insolvent or unable to pay his just proportion thereof, the K. s. 02, §29.
others shall be severally liable for the loss occasioned by such insol-
vency, each one in proportion to the value of the property received by
him from the estate of the deceased ; and if any person so liable dies
without having paid his proportion of such debt, his executors and ad-
ministrators shall be liable therefor, in like manner as if it had been his
proper debt, to the extent to which he would have been liable if living.
480
WILLS.
[Chap. 92.
Undevised real
estate first lia-
ble for debts.
K. S. 02, § :».
3 John's Ch. E.
148, 312.
6 Mass. 149.
Proceedin<^a in
suits for contri-
bution.
K. S. 02, § 31.
Devisees to eon-
tribute equally
■when dower,
&c., is taken
from one.
1839, Ull, § 1.
1854, 4l)ii.
1854, 42S.
1 Cush. 107.
Such cases, how
decided.
1839, 90, § 2.
No will effectu-
al without pro-
bate.
11. S. 02, § 32.
16 Mass. 433.
1 Pick. 114.
« Met. 309.
12 Met. 421.
Sect. 34. When part of tlie real estate of a testator desoeiuls to his
heirs, by reason of its not being devised or disposed of by Iiis will, and
his personal estate is insufficient for the payment of his debts, the un-
devised real estate shall be first chargeable with the debts, in exoner-
ation as far as it will go of the real estate devised ; unless it appears
from the will that a different arrangement of his assets for the payment
of liis debts was made by the testator ; in which case they shall be
ap)ilied for that purpose in conformity to the will.
Sect. 35. All cases arising under the preceding provisions of this
chapter, in which devisees or legatees may be required to contribute to
make u]) the share of a child of the testator, or of the issue of a child,
or in which contribution is to be made among devisees, legatees, and
heirs, or any of them, may be decided in an action at law, when tlie
case is such as to allow of that course of ])roeeeding ; or may be heard
and determined in the probate court, allowing an appeal to tlie su-
preme court of ]u-obate as in other eases ; or they may be originally
brought and finally determined in the supreme judicial court as a court
of equity.
Sect. 36. When the estate of one or more devisees under a will is
taken and assigned by the probate court for the dower of the widow
of the testator, or for the portion given to her by law in lieu of
dower, or is set out to her upon a judgment or decree of any other
court therefor, all the other devisees and legatees shall contribute their
resjiective pro]iortions of the loss to the jierson fi'om whom the estate
is so taken or set out, so as to make the loss full equally ujion all the
devisees and legatees in proportion to the value of ju'operty received
by them under the will ; but no devisee or legatee shall be held to con-
tribute who is exempted therefrom by the provisions of the will.
Sect. 37. All cases arising under the preceding section m.ay be
decided in an action at law when the case is such as to allow of that
course of proceeding, or they may be originally brought and determined
in tlie supreme judicial court as a court of equity.
Sect. 38. No will shall be efleetual to pass real or personal estate,
unless it has been duly ]iroved and allowed in the jirobate court ; and
the probate of a will devising real estate shall be conclusive as to its
due execution, in like manner as of a will of personal estate.
TITLE ly.
[OF THE SETTLEMENT OF ESTATES OF DECEASED PERSONS,
TRUSTS, AND SPECIAL PROVISIONS RELATING TO
ESTATES, TRUSTS, AND GUARDIANSHIPS.]
Chapter 93. — Of Letters Testamentary and Proceedings on the Probate of
Wills.
Chapter 94. — Of Administration and the Distribution of Estates of Intestates.
Chaptkr 9.3. — Of Public Administrators.
Ch.\pter 96. — Of Inventories, Allowances to Widows and Children, and Collec-
tion of the Effects of Deceased Persons.
Chapter 97. — Of the Payment of Debts and Legacies.
Chap. 93.]
APPOINTMENT OF EXECUTORS, &-C.
481
Chapter 98. — Of the Accounts and Settlements of Executors and Adminis-
trators.
Chapter 99. — Of Insolvent Estates.
Cn.iPTER 100. — Of Trusts.
Chaptee 101. — Special Provisions relating to Estates, Trusts, and Guardianships.
CHAPTER 93.
OF LETTERS TESTAMENTARY AND PROCEEDINGS ON THE PROBATE
OF WILLS.
Section
1. Letters testamentary to be issued.
2. Executor's bond.
3. when he is residuary legatee.
4. not to discharge lien of creditors on real
estate, unless, &c.
5. Exeoutor, when exempt from giving sure-
ties.
Section
6. Executor renouncing, or not named, &c.,
administration to be granted.
7. Administration during minority of execu-
tor,
8. Bond of administrator with will annexed.
y. Executor of executor, &c.
Section 1. When a will has been duly proved and allowed, the Letters testa-
probate court shall issue letters testamentaiy thereon to the executor ™su'fi'^ '" ^^
named therein, if he is legally competent, and if he accepts the trust u. s. 63, |i.
and gives bond to discharge the same ; otherwise the probate court " '^'' ^'''"''
shall grant letters of administration on the estate as hereinafter pro-
vided.
Sect. 2. Every executor, before entering ui)on the execution of his Executor's
trust, shall give bond with sufficient surety or sureties in such sum as i^°s.V,3 kq.
the judge of the probate court shall order, ]iayal)le to said judge and iNi", i«i.
his successor, with condition substantially as follows, (except as pro- s r'i'ck!'5W.
Tided in chapter one hundred and one :) — ^ Cush. 207.
First. To make and return to the probate court, within throe months, a true in-
ventory of all the real estate, and all the goods, chattels, ri^ht*, and credits, of the
testator, which are by law to be administered, and which shall have come to his pos-
session or knowledge :
Second. To administer according to law, and the will of the testator, all his goods,
chattels, rights, and credits, and the proceeds of all his real estate that may be sold for
the payment of his debts or legacies, which come to the possession of the executor, or
of any other person for him ; and *
Third. To render upon oath a just and true account of his administration, within
one year, and at any other times when required by said court.
When two or more persons are appointed executors, none shall inter-
meddle or act as such but those who give bond as before prescribed.
Sect. 3. If it appears to the judge, that the bond prescribed by the when he is
preceding section is not necessary for the protection of anj- person r||"iuary lega-
interested in the estate, he may j^errait an executor who is residuary iW7, ss, §1.
legatee, instead of giving such bond, to give bond in a sum and with liCushrass.
sureties to the satisfaction of the judge, with condition to jiay all debts ? ^iray, 4W.
and legacies of the testator, and such sums as may be allowed by the
probate court for necessaries to the widow or min(3r children ; and in
such case the executor shall not be required to return an inventory.
Sect. 4. The giving of the bond ]lro^^ded for in the ]ireceding sec- nottodis-
tion, shall not discharge the lien on the real estate of the testator for ^i^aftlrl^oa^
the pajanent of his debts, except on such part as shall have been sold reaiestatevun-
by the executor to a purchaser in good faith and for a valuable con- iSr', 8s§2.
sideration ; and all estate not so sold m.ay be taken on execution by any 3 Hass. 523,542.
creditor not otherwise satisfied, in like manner as if a bond had been
given in the other form.
Sect. 5. An executor shall be exempt from giving a surety or sure- Executor, wiien
41 61
482
ADMINISTRATION OF INTESTATE ESTATES. [ChAP. 94.
exempt from
giving sureties.
1858, 72.
Executor re-
nouncing, or
not named, &c.,
administratioQ
to be granted.
R. S. (i;i, § 5.
1855, 111, § 1.
AdmhiiRtration
during" iiiiiitii'i-
ty ui cxiTiitur.
K. S. C3, § 0.
Bond of admin-
istrator, with
will annexed.
K. S. 63, § 8.
Executor of ex-
ecutor, &e.
K. S. 03, § 10.
ties on his bond, when the testntor has ordered or requested sneh ex-
emption, or tluit no bond should be taken, or when all the jiersons
interested in the estate who are of full age and legal cajjacity, other
than creditors, certify to the court their consent thereto; but not until
all creditors of the estate, and the guardian of any minor interested
therein, have been notified, and had opportunity to show cause against
the same: provided, that the judge may, at or after the granting of let-
ters testamentary, require bond with sufficient surety or sureties, if he
is of opinion that the same is required by a change in the situation or
circumstances of the executor, or for other sufficient cause.
Sect. 6. If a person a|ipointed executor refuses to accept the trust,
or, after being duly cited for that purpose, neglects to ajijiear and ac-
cept the same, or neglects for twenty days after probate of the will to
give bond as before prescribed, the probate court shall grant letters
testamentary to the other executors, if there are any capable and will-
ing to accept the trust ; and if there are none, or if, in any case, the
executors are dead, or none are named in the will, the court shall com-
mit administration of the estate, with the will annexed, to the widow
of the deceased, or to his next of kin, or to such other person as would
have been entitled thereto if the deceased had died intestate: provided,
that after the expiration of said twenty days, and before letters testa-
mentary or of administration with the will annexed are granted, the
court may grant letters testamentary to any person appointed executor
who shall give the bond prescribed by law.
Sect. 7. When a person appointed executor is at the time of prov-
ing the will under the age of twenty-one years, administration with the
will annexed may be granted during his minority, unless there is an-
other executor who accepts the trust, in which case the estate shall be
administered by such other executor until the minor arrives at full age,
when upon giving bond as before provided he may be admitted as joint
executor with the former.
Sect. 8. Whoever is .appointed administrator with the will annexed,
shall, before entering on the execution of his trust, give bond to the
judge of the probate court in like manner and with like condition as is
required of an executor.
Sect. 9. The executor of au executor shall not, as such, administer
the estate of the first testator.
CHAPTER 94.
OF ADMINISTRATION AND THE DISTRIBUTION OF ESTATES OF
INTESTATES.
administration.
Section
1. Administration, to whom granted.
2. Administrator's bond.
3. Orig-inal administration not to be granted
aft^r twenty years.
4. except when property accrues, &c.
6. Administration revoked on proof of will.
SPECIAL ADMINISTRATION.
6. Special administrator during suit, &c.
7. bond of.
8. powers and duties of.
9. Allowaneo to widow, .tc, from income.
10. appeal not to prevent, &c.
Section
11. Expense of last sickness, Ac.
12. Special administrator to cease to act, &c.,
on appointment of executor, &c.
13. not liable to creditors, A:c.
EXECUTORS IN THEIR OWN WRONG.
14. E.xecutors in their own wrong^.
15. accountable to rightful executor, &c.
DISTRIBUTION.
Ifi. Distribution of personal estate.
17. Advancements In issue not computed in
distribution to widow.
Chap. 94.] administration of intestate estates. 483
ADMINISTEATIOJf.
Section 1. Administration of the estate of an intestate shall be AdminiBtration,
granted to some one or more of the persons hereinafter mentioned ; and J,^ " °^ t'raat-
they shall be entitled thereto as follows: — f' r f'^*'
First. His wiilow, or next of kin, or both, as the probate court shall m pick." 336.
deem fit ; and if they do not either take or renounce the administration, I ^^^''- *||-
tliey shall, if resident within the county, be cited by the court for that '
purpose :
Second. If the persons so entitled .are incompetent, or evidently 4Cush. 412.
unsuitable for the discharge of tlie trust, or if they neglect without
sufficient cause for thirty days after the death of the intestate to take
.administration of his estate, the probate court shall commit administra-
tion to one or more of the prinei2)al creditors, if there is any competent
and willing to undertake the trust: —
Third. If there is no such creditor, administration .shall be granted
to such other person as the court shall deem fit : j)rovided.
Fourth. That if the deceased was a married woman, administration
of her est.ate shall in all cases be granted to her husband, if competent
and willing to undertake the trust, unless by force of a marriage settle-
ment or otherwise she has made some testamentary disposition of her
separate estate, or some other provision, which renders it necessary or
proper to appoint some other person to administer her estate ; and
Fifth. If the deceased leaves no widow, husband, or next of kin, in U.S. 64, §4,
this state, administration shall be granted to a public administrator in 'laiirn^i
preference to creditors. iso3, 4i<i.
Sect. 2. Every administrator, before entering on the execution of Ills Admiuistra-
trust, shall give bond, with sufficient sureties in such sum as the judge i™s.64°§5.
of the probate court shall order, payable to said judge and his succes- j'^?' '"'^o,
sors, with condition substantially as follows, (except as provided in chap-
ter one huncbed and one :) —
First. To make and return into the probate court, ■within three months, a true in-
ventory of all the real estate, and all the goods, chattels, rights, and credits, of the
deceased, which have or shall come to his possession or knowledge:
Second. To administer according to law all the goods, chattels, rights, and credits,
of the deceased, and the proceeds of all his real estate that may be sold for the pay-
ment of his debts, which shall at any time come to the possession of the administrator
or of any other person for him :
Third. To render upon oath a true account of his administration within one year,
and at any other times when required by the probate court :
Fourth. To pay any balance remaining in his hands, upon the settlement of his
accounts, to such persons as the probate court shall direct ;
Fifth. To deliver the letters of administration into the probate court, in case any
will of the deceased is thereafter duly proved and allowed.
Sect. 3. Administration shall not be origin.ally granted after the Administration
expiration of twenty years from the death of the testator or intestate, (.\ after twenty
except in cases expressly authorized by Law. l''"s^V»4 s n
Sect. 4. When administration has not been taken on the estate of 1^,115, §2.
a person deceased intestate within twenty years after his decease, if 'y^^^Jj-glf v., g_
thereafter any property real or personal accrues to said estate, or belong- except when
ing thereto first conies to the knowledge of any person interested therein, J!™J'„'"^(.''°'
original administration maybe granted on such property at anytime i»48, soy, §1.
within five years next after it so accrues or becomes known, but such
administration shall affi'ct no other property.
Sect. 5. If, after granting letters of administration as of an intest.ate revoked ou
estate, a will of the person deceased is duly jjroved and allowed, the first k™. m, §^i6!
administr.ation shall be revoked ; and the executor, or administrator
with the will annexed, may demand, collect, and sue for, all the goods,
chattels, rights, and credits, of the deceased, remaining unadministered.
484
SPECIAL ADMINISTRATION.
[Chap. 94.
SPECIAL ADMINISTRATIOX.
Special ailniiu-
istrator during
suit, &c.
K. S. «, § fi.
21 Pick. 101.
22 Pick. 5or.
bond of.
R. S. (J4, §7.
powers aiid
duties of.
K. S. M, § 8.
1858, 122.
Allowance to
vv-idou', t^'c,
Irom income.
1859, H.J, §§ 1,
2,3.
a^ipcal not to
preVout, Ac.
1859, H:i, 5§ 4, 5.
Expense of last
sickness, &c.
1859, 143, § a.
Special admin-
istrator to cease
to act, .tc, on
appointment of
executor, ilic.
K. S. 64, § 9.
not liable to
creditors, &c.
K. S. 64, § 10.
Sect. 6. When by reason of a suit concerning the proof of a will,
or from other cause, there is delay in granting letters testamentary
or of administration, the probate court may ajjpoint a special admin-
istrator to collect and ])reserve the ettects of the deceased ; and in case
of an appeal from the decree appointing such special administrator, lie
shall nevertheless proceed in the execution of his duties until it is oth-
erwise ordered by the supreme court of probate.
Sect. 7. Every such administrator, before entering on the duties of
his trust, shall give bond, with sufficient surety or sureties in such sura
as the court shall order, jjayable to the judge and his successors, with
condition that he will make and return into the probate court within
three months, a true inventory of all the goods, chattels, rights, and cred-
its, of the deceased, which have or shall come to his possession or knowl-
edge, and that he will truly account on oath for all the goods, chattels,
debts, and etfects, of the deceased, that shall be received by him as such
si>ecial administrator, whenever required by the probate court, and will
deliver the same to whoever shall be appointed executor or administra-
tor of the deceased, or to such other person as shall be lawfully author-
ized to receive the same.
Sect. 8. He shall collect all the goods, chattels, and credits, of the
deceased, and preserve the same for the executor or administrator when
appointeil, and for that purpose may commence and maintain suits; and
may sell such iierisliable and other goods as the judge shall order to be
sold. If he is appointed by reason of a suit concerning the probate of a
will, or delay for any cause in granting letters testamentary, the judge
may authorize him to take charge of the real estate of the deceased
or any part thereof, and to collect the rents, make necessary repairs,
and do all other things which the judge may deem needful for the
preservation thereof, and as a charge thereon. He shall be allowed
such compensation for his services as the judge shall deem reasonable.
Sect. 9. Upon the petition of the widow or children, or either of
them, the probate court may, after notice to all parties interested, make
a reasonable allowance out of the income of the estate, real or personal,
in the hands of a special administrator ajipointed on account of the
pendency of a suit concerning the ]irobate of a will, as an advancement
for their support, not exceeding such portion of the income of the estate
as they would be entitled to whether the will is finally proved or not.
Sect. 10. An appeal from the decree conceniiiigsueh allowance shall
not prevent the payment of the sum decreed, if the petitioner gives
bond to the special administrator, with sureties appro-\'ed by the judge,
conditioned to repay the same, if the decree is reversed.
Sect. 11. A special administrator may, by leave of the probate court,
pay from the jiersonal estate in his hands, the expenses of the last sick-
ness and funeral of the deceased.
Sect. lii. Upon granting letters testamentary or of administration,
the ])owers of the special administrator shall cease, and he shall forth-
with deliver to the executor or administrator all goods, chattels, money,
and efiects, of the deceased, in his hands ; and the executor or adminis-
trator may be admitted to prosecute any suit commenced by the special
administrator, in bke manner as an administrator de ho?iis noii is author-
ized to j)rosecute a suit commenced by a former executor or administrator.
Sect. 13. Such special administrator shall not ha liable to an action
by any creditor of the deceased ; and the time of hmitation for all suits
against the estate shall begin to run after granting letters testamentary
or of administration in the usual form, in like manner as if such special
administration had not been granted.
Chap. 95.]
PUBLIC ADMINISTRATORS.
485
EXECUTORS IN TIIEIK OWN WRONG.
Sect. 14. Wlioever injuriously intermeddles with any goods or effects Execators in
of a deceased person without being thereto authorized by law, shall be wrong."^
liable to the persons aggrieved, as an executor in his own wrong. k. s. in, § ii.
Sect. 15. Every executor iu his own wrong shall be liable to the accoimtabie
rightful executor or administrator for the full value of the goods or ecu'tor'*&c "^^
effects of the deceased taken by him, and for all damages caused by iiis K. s. «, §12.
acts to the estate of the deceased ; and he shall not be allowed to retain
or deduct any part of the goods or effects, except for such funeral ex-
penses or debts of the deceased or other charges actually paid by hiui as
the rightful executor or administrator might have been compelled to pay.
distribution.
Sect. 16. When a person dies possessed of personal estate, or any Distribution of
right or interest therein, not lawfully disposed of by will, it shall be glTc^fr'*'
applied and distributed as follows : — isw, hs.
First. The widow and minor children shall be entitled to such parts 5^45'. ,^i c-
thereof as may be allowed to them under the provisions of chapter y Met. 37.
i • 10 Met. KO.
nmety-six:
Second. The jiorsonal estate remaining after such allowance shall be 4 Met. 319.
ap])lied to the ])aynient of the debts of the deceased, with the charges
of his funeral and settling his estate:
Third. The residue shall be distributed among the same persons who 1852,29.
would be entitled to the real estate by chapter ninety-one, and in the fju't^iw!''
same proiwrtion as tiiere prescribed, except as is herein provided : ocush. iso.
Fourth. If the intestate was a married woman, her husband shall
be entitled to the whole of the residue :
Fifth. If the intestate leaves a widow and issue, the widow shall be
entitled to one-thir<l of the residue :
Sixth. If there is no issue, the widow shall be entitled to the residue i8«,406, §3.
to the amount of five thousand dollars, and to one-half the excess of such
residue above ten thousand dollars : and
Seventh. If there is no husband, widow, or kindred, of the intestate,
the whole shall escheat to the commonwealth.
Sect. 17. If the intestate leaves a widow and issue, and any of the Advancomcnte
issue have received an advancement from the intestate in his lifetime, 'onrputcrt"in
the value of such advancement shall not be taken into consideration in tiistributiou to
computing the one-third part to be assigned to the widow ; but she shall "{| s.^_ § 1.
be entitled only to the third part of said residue after deducting the 1 Kcii. lui.
value of the advancement.
CHAPTER 95,
OF PUBLIC ADMINISTRATORS.
Section
1. Public administrators to be appointed.
2. to administer ou estatus of persona dying
without heirs, Szc.
not when lieir, &r., claims riglit, &o.
to be discharged when heir, &c., claims
right to administer, &c.
to surrender letters and account to suc-
cessor, &c., when.
to give bonds.
41*
3.
4.
5.
6.
Sectiou
7. Public administrators may give general
bond witli conditions.
8. under such bond, to account annually,
and judge may require further sureties,
&c.
9. Wlien limitation begins in such cases.
10. Public atimiuistrators may sell, &c., as
otlier administrators.
may sell all real estitte in certain cases.
11.
486
PUBLIC ADMINISTRATORS.
[Chap. 95.
Section
V2. Public administrators, balance in hands of,
to bo deposited witli state treasurer.
13, to render accouuts annually j suits on
bonds, &e.
14. Heirs, &c., may take administration after
property is paid iuto state treasury.
Section
15. Treasurer to pay to such executor, &c.,
money belon^injj to estate.
16. Proceedings on death, &c., of public admin-
istrator.
17. Public administrators neglecting duties,
district-attorneys to prosecute, &c.
Public adminis-
trators to be
appointed.
1W9, 112, § 1.
to administer
on estates of
persons dying
without heirs,"
&c.
K. S. 64, §4.
ISi!), 142, § 1.
1840, 40, §§ 1. 2-
not when
heir, &c., claims
right, &c.
K. S. 04, § 4.
1«53, 4la.
to be dis-
chari:ed, ^viieu
heir, .tc, I'laims
ri";h^ to iidiuiu-
istor, &c.
K. S. 64, § 4.
1838, 142, § 2.
to surrender
letters and ac-
count to succes-
sors, &c., wlieu.
K. S. 64, § 16.
18.19, 142, § 2.
to give bonds,
laia, 142, §§ 1, 2.
See Ch. 114, § 2.
may give gen-
eral bond, with
conditions.
lS4a, 12;), §§ 2, 3.
1830, 1%.
to return an
inventory with-
in t?ire((
mouths.
to administer
according to
law.
to render ac-
count in one
year, and an-
Mually at least.
Sectiox 1. The governor, with the advice and consent of the coun-
cil, shall appoint one or more suitable persons in each county to be
public ailiuinistrators therein, who, with those now in office, shall hold
their offices during the pleasure of the executive.
Sect. '2. Such adininistrator shall witliin his county take out letters
of administration and faithfully administer upon the estate of any per-
son who dies intestate therein or elsewhere leaving jirojierty in such
county to be administered, and not leaving a known husband, widow, or
heir, in this state.
Sect. 3. Administration shall not be granted to a public administra-
tor when the husband, widow, or any heir, of the deceased, in writing
claims tlie right of administration, or recpiests the ajijiointment of some
other suitable person to the trust, if such husband, widow, heir, or other
person, accepts the trust and gives the bond required.
Sect. 4. After granting letters of administration to a public admin-
istrator, and before the tinal settlement of the estate, if the husband,
widow, or any heir, of the deceased, in writing claims the right of ad-
ministnition or requests the appointment of .some other suitable ]ierson
to the trust, the probate court shall grant letters of administration
accordingly. Upon the appointment of a successor and his gluing the
bond required, the powers of the public administrator over the estate
shall cease.
Sect. 5. Every public ailministrator shall deliver into the jnobate
court his letters of administration upon the estate of any person de-
ceased, if a will of such person is thereafter pi-oved anil allowed.
Upon the appointment of an executor or administrator as his successor
in any case, he shall surromler his letters of administration into the
probate court with an account upon oath of his doings therein ; and
upon a just settlement of his account, shall ]iay over and deliver to his
successor all sums of money remaining in his hands, and all projierty,
etiects, and credits, of the deceased, not administered.
Sect. 6. Every public administrator shall give bond to the judge of
the probate court, for the faithful jierfonnance of his duties, in like
manner as required of other administrators, with the further condition
to comply with the provisions of the preceding section.
Sect. 7. Instead of a separate bond for each estate, he may give a
general bond for the faithful administration of all estates on which let-
ters of administration shall be granted to him, as public administrator.
Such bond shall be given with sufficient surety or sureties in such sum
as the judge of the ])robate court shall order, p.ayable to said judge and
his successors, with condition substantially as follows, (except as pro-
vided in chapter one hundred and one : ) —
First. To make and return into the probate court, within three months from the
time of granting to him as public administrator, letters of administration on tlie estate
of any person deceased, a true inventory of all the real estate, goods, chattels, rights,
and credits, of such person, which shall come to his possession or knowledge :
Second. To administer according to law all goods, chattels, rights, and credits, of
every such person, and the proceeds of all his real estate that may be sold for payment
of his debts, which shall come to the possession of said administrator, or any person
for him :
Third. To render upon oath a true account of his administration of every such
estate within one year from the date of his letters of administration thereon, and at
least once in each year luitil the trust is fulfilled ; and at any other times when requii'ed
by the probate court :
Chap. 95.] public administrators. 487
Fourth. To pay the balance of every such estate, remaining In his hands upon the Public admiuis-
settleraent of his accounts, to such persons as the probate court shall direct ; and, trutur to i)ay
when such estate has been fully administered, to deposit the whole amount remaining ^[g 'iiajlds"'''^ "*
in his hands with the treasurer of the commonwealth :
Fifth. To deliver the letters of administration on the estate of any person into the to return let-
probate court, in case a will of such person is thereafter proved and allowed ; and, I'^^^'^l-^ if "•'n'''
upon the appointment of a successor as administrator of any estate, to surrender his p,.ovj.,| „r gm._
letters of administration into said court, with an account under oath of his doings ccsssor ap-
therein, and upon a just settlement of his account, to pay over and deliver to his sue- poiuteil.
cessor all sums of money remaining in his hands, and all property, effects, and credits,
of the deceased, not administered.
Sect. 8. Every public administrator who has given such general Aduiinistrators
bond shall, at tlie probate court first hold in his county after the first day of iJoud' tn'aj-
Januarv in each year, render an account under oath of all balances of «'>'"? imuually,
•^ , ■••I'll 1 ^1 * 1 ^ ^' aud jiul":c may
estates then remannng ni his hands; and the juilge may at any tmie rc<iuire mrtucr
i-equire additional sureties to be furnished upon the bond, or a new bond JJ,";','"f2j/53_
to be given.
Sect. 9. All periods of time which by law begin to run in other wiun limita-
cases from the time of giving bond by the administrator, sliall when such *„ "h'SSes! '"
general bond is given, begin to run, as to each estate, from the date of is-i«> i-J. § 3.
letters of administration.
Sect. 10. Public administrators may be Ucensed to sell real estate Pubiii^ adminis-
for the pajmient of debts, and shall administer estates and render their &c.',"aB Sts^
accounts, in the same manner as other administrators, except as herein ,'**^;;|' !^H'^^- ''^•
^, . ' . , , '■ ihj'.i, i^j, 55 ;;, i.
Otherwise provided.
Sect. 11. After three years from the date of lettere of administra- niayRciiaii
tion to a public administrator, he may sell the real estate, although not ciita'iu cases.
necessary for the payment of debts, upon obtaining a license from the i*^'-'' '^-' § *•
probate court if it appears to the judge to be for the interest of all
concerned. In such case he shall take the oath, give the bond, and
otherwise proceed, as required of administrators hcensed to sell real es-
tate more than is necessary for the payment of debts.
Sect. 1"2. When an estate has been fully administered by a public balance in
administrator, and the debts paid according to law, he shall dejiosit the ii™',Ki°i'i with'
balance of such estate remaining in his hands with the treasurer of the stMt.tn'iisurer.
commonwealth ; who shall receive and hold it for the benefit of those ' ' ' "
who may have lawful claims thereon.
Sect. 13. The probate courts shall require public administrators in to render ac-
their respective counties to render an account of tiieir proceedings 1° ■'"u'it™on"' "
under any letters of administration, at least once in each year until the V"j;,''",',*'Vs .
trust has been fulfilled. And when upon a final settlement of any "' '' ^' ' •
estate it appears tliat moneys remain in the hands of such administrator,
which by law should have been dei>osited with the treasurer of the
commonwealth, the court shall certify that f ict and a st.atement of the «
amount so withheld to said treasurer, who, unless such deposit is made
within one month after the receipt of such notice, shall cause the
probate bond of the administrator to be prosecuted for the recovery
thereof
Sect. 14. If at any time within six years after such deposit is made iicirs, ic., may
with the treasurer, any jierson apiilics to the probate court which Jrl^tlon™"'/
granted said letters of administration, and makes it appear that he is iimprrty is
legally entitled by the will of the deceased or otherwise to the adminis- t'lv'iRury. ^ " "
tration of said estate, the court shall grant administration thereof, or is:iu, h^, §6.
upon probate of such will, shall grant letters testamentary to such ap-
plicant, or at his request to some other suitable person : provided, that
before granting such administration, the court shall order personal
notice of the apjilication to be served at least fourteen days before the
hearing, tipon a public administrator of the county, who shall ajipear in
behalfof the commonwealth; and either party may appeal from any
decree therein.
188
INVENTORIES OF ESTATES OF DECEASED PERSONS, &c. [ChAP. 96.
'''rc.isurer to
Ii.ty to such
executor, &c.,
ifioney belon«f-
i ig to estate,
Ae.
ls:S'J, 142, § 6.
I'roccedings on
iloirtli, &.B., of
]nihlic adminis-
trntor.
1849, 123, § 1.
Public adminis-
trators, nej^lect-
in^ duties <iis-
trlct -attorneys
to prosecute,
1S4G, 211.
Sect. 15. After the expiration of thirty days from the appointment
of an executor or atlministrator as provided in the preceding section, if
no appeal is chiiined l)y any person interested, the treasurer shall pay
over to such executor or administrator all money deposited in the state
treasury to the credit of such estate, to be administered in like manner
as the estates of other deceased persons.
Sect. 16. U])on the death, resignation, or removal, of a public admin-
istrator, the probate court shall issue a wairant to some other jiublic
administrator in the same county on his application therefor,- requiiing
him to examine the accounts of such late public administrator, touching
the estates on which he has taken out letters of administration, and to
return into the probate court a statement of all such estates, not fully
administered, and of the balance of each estate remaining in his hands
at the time of his death, resignation, or removal. And thereupon the
court shall issue to the jniblie administrator making the return, upon his
giving the requisite bond, letters of administration upon such of said
estates as are not already administered, althougli the personal estate
remaining may not amount to twenty dollars.
Sect. 17. NVhen a public administrator neglects to return an inven-
tory, settle an account, or perform any other duty incumbent on him, in
relation to any estate, and there appears to be no heir entitled thereto,
the district-attorney for the district within which the administrator
received his letters, shall, in behalf of the commonwealth, prosecute all
suits and do all acts necessary and proper to insure a prompt and taith-
ful administration of the estate, and the payment of the proceeds thereof
into the treasury.
CHAPTER 96.
OF
INVENTORIES, ALLOWANCES TO WIDOWS AND CHILDREN,
COLLECTION OF THE EFFECTS OF DECEASED PERSONS.
AND
inventoeies.
Section
1. Inventory to be returned within three
months, except, &c.
2. Appraisers, how appointed and sworn.
3. Justice's order to appraisers.
ALLOWANCES TO WIDOWS AND CHILDREN.
4. Apparel, &c., of widows, &c.
6. Necessaries, &c., allowed to widow, &c.,
not assets.
COLLECTION OF THE EFFECTS, &C.
6. Persons suspected of concealing effects
may be examined on oath.
Section
7. When personal estate is insulBcieat, real
estate may be sold, &c.
8. Proceeds of sale to be assets, &c.
9. Mortg:ag-e of real estate to be considered
personal assets.
10. In case of redemption, executor, &c., to re-
lease ; meantime to hold in trust, &c.
11. Lands, taken on execution by executor,
&c., to be considered personal assets.
12. Real estate held in mort<;age, &c., by ex-
ecutor, &c., may be sold, &c.
13. may be sold after foreclosure upon ob-
taining license.
14. if not so sold, how distributed.
INVENTORIES.
Inventory to be Sectioi^ 1. Evcry cxecutor and administrator shall within three
returned withm months after his apjiointment, make and return upon oath into the pro-
eicept"*.". ^' bate court, a true in\entory of the real estate, and all the goods, chattels,
rights, and credits, of the deceased, which are by law to be administered,
and which shall have come to his possession or knowledge; except that
an executor who gives bond to pay all the debts and legacies and the
allowance to the widow and minor children as provided in chapter
ninety-three, need not return an inventory.
Appraisers, Sect. 2. The estate and eifects comprised in the inventory shall be
R. S. fiS, § 1.
1857, SS.
Chap. 96.] collection of effects of deceased persons. 489
appraised in any county by three suitable disinterested persons appointed imw appointed
by the probate court; or any disinterested justice of the peace may i'". s! 05 ™2.
appoint such appraisers of any part of the estate which may be in his
county. The appraisers shall be sworn to the faithful discharge of their
duties.
Sect. 3. When appraisers are appointed by a justice of the peace, he .lustice's order
shall issue an order to them, in substance as follows: — il'.'sJoMs''*
, ss.
To of , in said county. You are hereby appointed to appraise,
on oath, the estate and effects of , late of , deceased, -which may
be in said county. When you have performed that service, you will deliver this order,
and your doings in pursuance thereof, to , (executor or administrator, as
the case may bs) of said deceased, that he may return the same to the probate court
for the county of . Given under my hand, this day of , in
the year , Justice of the Peace.
AI.LOWAS'CES TO ■WIDOWS AND CHILDREN.
Sect. 4. The articles of app.arel and ornament of the widow .and Apparel, &c., of
minor children of a deceased person, shall belong to them respectively. iKte^TIs,*'!.
Sect. 5. Such parts of the personal estate of a person deceased as xecessurieB,
the probate court, having regard to all the circumstances of the case, *";io^°&^'' '"
may allow as necessaries to his widow, for herself and family under her h- S- 6o, § ir.
care, or if there is no widow, to his minor children, not exceeding fifty im,; 13! '
dollars to any child; and also such provisions and other articles as are IJ! VI''!'' ?2^
/• , , I /^, ■ i» •! 11 X* 1 ■ ^^ -Met. 1/0.
necessary lor the reasonable sustenance 01 his laraiiy, and tbe use ot his i. Cush. 20.
house and the furniture therein, foi- forty days after his death, shall :jljvij^;52i!
not be taken as assets for the payment of debts, legacies, or charges of soray, 24.
adnumstration. ,
collection of the effects, &c.
Sect. 6. U])on com])laint made to the probate court by an executor, rer-sons eu«-
adniinistrator, heir, legatee, creditor, or other person, interested in the Sin|,'°-ii^°ts
estate of a person deceased, against .any one su.spected of havintj fraudu- muv be e.vam-
,, 1, ,ii,T -I ^ un-d on oath.
lently received, coucealed, embezzled, or conveyed away, any money, iNir, ri,§2.
goods, effects, or other estate, real or personal, of the deceased, the court ^ ji'Jss"'-!-^'"'
may cite such suspected person, though he is executor or administrator, r I'iik. 14.
to appear and be examined on oath, upon the matter of the complaint. ]/ jiet.1«o.
If the person so cited refuses to appear and submit to examination, or 4Cush. m.
to answer such interrogatories as are lawfully propounded to him, the
court may commit him to the jail, there to remain in close custody until
he submits to the order of the court. The interrogatories and answers
shall be in writing, signed by the party examined, and filed in the pro-
bate court.
Sect. 7. "When the goods .and chattels, rights and credits, in the when personal
hands of an executor or administrator, are not sufficient to ])ay the debts ^',v;[J'',."ai""^te
of the deceased, with the charges of administration, his real estate, or as maybe_soid,&c.
much thereof as may be necessary, shall be sold for that puiTiose by the 7' jretl'45!.^'
executor or administrator, upon obtaining a license therefor in the man- " "^ray, i09.
ner provided in chapter one hundred and two.
Sect. 8. The proceeds of real estate so sold shall be considered as rroeecds of sale
assets in the hands of the executor or administrator in like manner as if i".."^ '
the same had originally been part of the goods and chattels of the k. .s. 60, §9.
deceased ; and the executor or administrator, and the sureties in his
administration bond, shall be accountable and chargeable therefor.
Sect. 9. When a mortgagee of real estate, or an assignee of such jinrtgatfe of
mortgagee, dies without having foreclosed the right of redemption, the I^'„",'isi,i'.n'ri'pcr?
mortgaged premises and the debt secured thereby shall be considered si.nai .issets.
as personal assets in the hands of his executor or administrator, and nV iiass! is. '
shall be administered and accounted for as such ; and if the mortgagee w ^<^^- ^'•
62
490
PAYMENT OF DEBTS, &c., OF DECEASED PERSONS. [ChaP. 97.
8 Cush. 245.
11 Cush. loO-
3 Gray, 302, 50i.
In case of rc-
demptiou, c.k-
ecutor, &c., to
release ; nn'au-
tinie to hold iu
trust, &c.
R. S. (J5, § 12.
4 Mass. 598.
Lands t.ikeii on
exeeutlou by
executor, itc,
considered per-
sonal assets.
K. S. Co, § i:).
0 Greenl. i;i3.
4 Mass. 59S.
Reiil estate held
in mortgage,
&c., by e.xecu-
tor, &c., may be
sold, &c.
lt*4(>, 47, § 1.
1 I'ick. 81.
13 Met. 120.
may be sold
after Yorei-'lo-
sure, upon ob-
taiuiug license.
K. S. 65, « 14.
1849, 47, §§ 1, 2.
•
if not so soLl,
how distrib-
uted.
K. S. 65, § 15.
8 Cush. 225.
3 Gray, 5U1.
or assignee has not in bis lifetime obtained possession of tbe mortgaged
premises, liis executor or administrator may take possession thereof, by
open and peaceable entry or by action, in like manner as the deceased
might have done if living.
Sect. 10. Upon the redemption of such mortgage, the money paid
thereon shall be received by the executor or administrator, and lie shall
thereupon release and discharge the mortgage ; and until such redemp-
tion the executor or administrator, if possession has been taken either
by himself or the deceased, shall be seised of the mortgaged pi-emises,
in trust for the persons who would be entitled to the money if the
premises had been redeemed.
Sect. 11. When an executor or administrator recovers judgment for
a debt due to the deceased, and levies the execution on real estate, he
shall be seised of such real estate in trust for the jiersons who would
have been entitled to the money, if the judgment had been satisfied in
money; and the estate so taken on execution shall be considered as per-
sonal assets in his hands ; and if redeemed, the money shall be received
by the executor or administrator, who shall thereu])on release the estate.
Sect. 12. Real estate held by an executor or administrator in mort-
gage, or taken on execution by him, may be sold, subject to the right of
redemption, at any time before the right of redemjition is foreclosed, in
the same manner as personal estate of a person deceased.
Sect. 13. Real estate held by an executor or administrator in mort-
gage, or taken on execution by him, may, after the right of redemption
is foreclosed, be sold for the jiayment of debts, legacies, and charges of
administration, in the same manner as real estate of which the deceased
died seised, upon obtaining a license therefor in the manner provided in
chapter one hundred and two.
Sect. 14. If land so held by an executor or administr.ator in mort-
gage or on execution, is not redeemed or sold as before provided, it shall
be assigned and distributed to the same persons, and in the same pro-
])ortions, as if it had been part of the personal estate of the deceased.
If upon such distribution the estate comes to two or more persons, the
])robate court may cause partition thereof to be made between them, in
like manner as if it had been real estate held by the deceased in his
lifetime.
CHAPTER 97.
OF THE PAYMENT OF DEBTS AND LEGACIES.
Section
1. Public notice to be given of taking: admin-
istration.
2. perpetuating evidence of.
3. when omitted by accident, &c., and when
evidence is not perpetuated.
4. Liability for dania<^e.
5. Limitation of actions by creditors.
6. when assets are received after two
years.
7. \Vhen action fails from defect in form, new
action may be commenced.
8. Proceedings when right of action accrues
after two years.
9, 10, 11. Further proceedings in sucli case.
12. Administrator de bonis nou liable to uctions
for two years.
13. to giv(_' notice of appointment.
14. to be further liable in case new assets are
received.
15. Action against heirs, &c., not barred.
Section
10. No action agaiust executor, &c., within one
year, except, Ac.
17. Executors, &c., not liable for deficiency of
assets, in case, Ac.
18. on proving such payments, to be dis-
charged.
10. may represent estate insolvent.
20. If assets are exhausted in paying preferred
debts, action agaiust executor barred.
21. When executor, Ac, mny demand security
from legatee or next of kin to refuud.
22. Legatee may sue.
23. Annuity given by will, when payable.
24. Apportionment of annuity in cert;iin cases.
25. Executors, Ac., liable iu case of unneces-
sary delay, Ac.
26. Claims of executors, Ac, may be submitted
to arbitration.
27. decided by court or jury on ajiptal.
28. Estate of deceased joint debtor, liable.
Chap. 97.] payme.nt of debts, &c., op deceased persons. 491
Section 1. Every executor and administrator, within three montlis Public notice to
after giving bond for the discharge of his trust, sliall cause notice of liis takmyadnmus-
appointment to be posted in two or more public ])laces in the city or Jr-'''"''- .,
town in which the deceased last dwelt ; or he may be required by the ' '
probate court to give notice by jjublishing in some newspaper, or in
such other manner as the court, taking into consideration the business
of the deceased and the circumstances of liis estate, shall direct.
Sect. 2. An affidavit of the executor or administrator, or of the pcn^tuaiins
person employed by him to give such notice, being made before the K.'s^dn^Va!
judge or a justice of the peace, and filed and recorded with a copy of the i>>55, i.i-'.
notice in the probate office, within one year after giving liond as afore-
said, or at any time afterwards by permission of the coui-t u]ion petition
of tlie executor or administrator and satisfactory evidence furnished
that the notice was given as ordereil, shall be admitted as evidence of
the time, place, and manner, in whicli the notice was given.
Sect. 3. If, by accident or mistake, notice is not given, or the evi- when omitted
dence thereof foils to be perpetuated as provided in the preceding K.."u™|™';i.!i
sections, the probate court may, on the iietition of the executor or evi,i.-iuc is uot
administrator, order such notice to be given at any time aiterwards ; m u. s. on, § js.
which case, the periods of time which are licrein limited for the com-
mencement of actions against executors and administrators and for
other purposes, and which begin to run from the date of the adminis-
tration bond, shall begin to run respectively from the time of passing
such order.
Sect. 4. No order under the preceding section shall exempt the Liability for
executor or administrator, and his sureties, from any liability for (bun- k'.'s.' u;', § ^o.
ages incurred by reason of the omission to give notice within three
months.
Sect. 5. No executor or administrator, after having given notice Limitation of
of his appointment as provided in section one, shall l)e held to answer iu,,'".'"' ' ^''' "
to tlie suit of any creditor of the deceased, unless it is commenced {J^v,?'.™,' V\
within two years from the time of his giving bond as aforesaid, except i; Cusli. 2:13.'
in the cases hereinafter mentioned. : ^ ™J' f^^-
Sect. 6. When assets come to the hands of an executor or admin- ,via-ii assets
istrator after the expiration of two years, he shall account for and ajijdy "j^"'',"''Jy'J,„rs
the same in like manner as if they had been received within that time, u. .s. (.n, §4.
and shall be liable to an action at law, or to any suit or jiroccss in the 3*"]'>];.k'*3'(J.'"
probate court, on account of such new assets, by or for the benefit of
any creditor, in like manner as if the assets had been received within
the two years, if such action or proceeding is commenced within one
year after the creditor has notice of the recei|)t of such new assets, and
not more than two years after the same is actually received.
Sect. 7. If an action commenced against an executor or adminis- wiien action
trator before the expiration of the two years limited in this chajiter, ill\J'„.'„?,"new'^°
fails of a sufficient service or return by an unavoi<lable accident ; or if "ction may be
the writ in such action is abated or defeateil in consequence ot a detect iba.j, i5r, §i.
in the form of the writ, or of a mistake in the form of the proceeding ;
or if, after a verdict for the plaintiff, the judgment is arrested ; or, if a
judgment for the plaintiff is reversed on a writ of error, the plaintiff
may commence a new action for the same cause at any time within one
year after the abatement or other determination of the original suit, or
after the reversal of the judgment therein.
Sect. 8. A creditor of the deceased, whose right of action does not Proceo.ii:
accrue within two years after the giving of the administration bond, I
may present his claim to the probate court at any time before the after two s^ean
estate is fully administered ; and if, on examination thereof, it appears "' ' '
to the court that the same is justly due from the estate, he shall order
the executor or administrator to retain in his hands sufficient to satisfy
tlie same. But if a person interested in the estate offers to gi\'e bond
when riL'lit of
action accrnt-s
492
OF DECEASED PERSONS. [ChaP. 97.
Further pro-
ceetlinga in
such case.
K. S. 60, § l5.
Same subject.
R. S. (50, § 7.
Same subject.
K. S. 60, § S.
1852, 312.
Administrator
deboitif noil
liable to :u*tions
for two years.
E. S. B6, §§ -M,
21 22.
issviw, § 2.
to pfive notieo
of appoiutiueiit.
K. S. (ili, § 2:.).
to be further
liable, in case
new assets are
received.
E. S. m, § 24.
Action against
heirs, &c., not
barred,
E. s. m, § 9.
No action
ap^ainst execu-
tor, &c., within
one year, ex-
cept, &c.
E. S. 00, § 10.
] Met. 3:i:i.
4 Gray, 5 U.
Executors, &c.,
not liabh^ lor
deficiency of as-
sets, in case,
&c.
E. S. 66, §11.
1 Gray, 109.
on provinof
such payments,
to be discliarg-
cd.
E. S. 00, § 12.
I Met. .13:!.
9 Met. ISO.
II Met. 23S.
may repre-
to the .alleged creditor with sufficient surety or sureties for the pay-
ment of the deiiKuid in ease the same is proved to be due, tile court
may order such hond to be taken, instead of requiring assets to be re-
tained as .aforesaid.
Sect. 9. The decision of the probate court upon the claim of such
creditor shall not be conclusive against the executor or administrator,
or other person interested to oppose the allow.ance thereof ; and they
shall not be compelled to pay the same, unless it is proved to be due
in an action commenced by the claimant within one year after the
same becomes ))ayuble.
Sect. 10. The action shall be brought against the executor or
.administnator, if he has been required to retain assets therefor ; other-
wise, upon the bond given by the jiersons interested in the estate.
Sect. 11. If the action is brought on the bond, the plaintiff shall
set forth his original cause of action against the deceased, in like man-
ner as would be required in a declaratit>n for the same demand against
executors or administrators, and may allege the non-payment thereof
as a breach of the condition of the bond ; and the defendant m.ay
answer any matter of defence that would be available in law agi.inst
the demand if prosecuted in the usual manner against the executor or
administrator.
Sect. 12. When an executor or administrator dies, resigns, or is re-
moved, without having fully administered the estate of the deceased,
and a new administrator is appointed, such new administrator shall be
liable to the actions of creditors for two yeai's after he has given bond
for the discharge of his trust, unless the same were barred prior to the
termination of the previous administration.
Sect. 13. The new administi'ator sliall give notice of his a]ipoint-
ment in the manner jn-escribed in this chapter with respect to an origi-
nal administrator ; and if he fails so to do he shall have no benelit of
the limitations herein provided.
Sect. 14. When assets come to the hands of such new administra-
tor after the time above limited for the commencement of actions ugainst
him, he shall account for the same, and shall be liable to an action at
hnv, and to any suit or jirocess in the ]ii'obate court, on account of such
new assets, by or in behalf of any creditor, in like manner as is jnovided
in this chapter with respect to an oi'iginal executor or administrator.
Sect. 15. Nothing herein contained shall prevent or bar the action
of any creditor against the heirs, next of kin, devisees, or legatees, of
the deceased, as provi<led in chapter one lunnlied and one.
Sect. 16. No executor or administrator shall be held to answer to
the suit of a creditor of the deceased, if commenced within one year
after his giving bond for the discharge of his trust, unless it is for the
recovc^i-y of a demand that would not be aflected by the insolvency of
the estate, or unless it is biought after the estate has been represented
insolvent, for the purpose of ascertaining a contested claim.
Sect. 17. If an executor or administrator who has given notice of
his appointment as prescribed in this chapter, does not within one year
thereafter have notice of demands against the estate of the deceased
which will authorize him to represent it insolvent, he may after the ex-
piration of said year proceed to pay the debts due from the estate ; and
he shall not be personally liable to any creditor in consequence of any
such jiayments m.ade before notice of his demand.
Sect. 18. If an executor or administrator pays away in manner
aforesaid the whole of the estate and effects of the deceased, before
notice of the demand of any other creditor, he shall not be required in
consequence of such notice to lejiresent the estate insolvent, but in an
action against him he shall be discharged upon proving such payments.
Sect. 19. If an executor or adiniiiistrator pays away in manner
Chap. 97.] payment op debts, &c., op deceased persons. 493
aforesaid so much of tlie estate and cftects of the deceased that the re- sent estate in-
mainder is insufficient to satisfy a demand of which he afterwards has K.'s'.'tio, § 13.
notice, he shall be liable to pay on such last mentioned demand only so
much as may then remain. If there are two or more such demands
exhibited, which together exceed the amount of assets remaining in his
hands, he may represent the estate insolvent, and shall divide and pay
over what remains in his hands among such credito^-s as prove their
debts under the commission of insolvency, pursuant to such decree as
the ])robate court shall make in that behalf; but the creditors of the
deceased who have been previously paid shall not be Uable to refund
any jjart of the amount received by them.
Sect. 'M. If it appears upon the settlement of the administration ifassets are ex-
account in the probate court, that the whole estate and eflects which lll'/.'j'relc'rred^"
have come to the hands of the executor or administrator have been rf'M"! action
exhausted in paying the charges of administration, the allowance to the tlii- baWed.
widow or minor children of the deceased, and the charges of his last {^if'js'^'*'
sickness and funeral, or any other debts or claims entitled by law to a » Met. iso.
preference over the common creditors of the deceased, such settlement * gUI] m',
shall be a sufficient bar to any action brought against the executor or
administrator by a creditor who is not entitled to such preference, al-
though the estate has not been represented insolvent.
Sect. 21. When an executor or administrator, within two years after when cxecu-
having given bond for the discharge of iiis trust, is required by a leEfatee *,"''' *■!;' ""'^
or next ot km to make jjayment, in whole or in jwit of his legacy or lity from lega-
distributive share, the jjrobate court may require that the legatee or kin,"to"reiund.
next of kin shall first give bond to the executor or administrator, with u. s. 00, § 15. '
surety or sureties to be approved by the judge, conditioned to refund
the amount so to be paid, or aij much thereof as may be necessary to
satisfy any demands that may be afterwards recovered against the
estate of the deceased, and to indemnify the executor or administrator
against all loss and damage on account of such pavinent.
Sect. 22. Every legatee may recover his legacy in an action at com- Lof^atee may
mon law ; and nothing contained in this chapter shall bar an action 1"'^. 00, § is.
brought at any time against an executor, or an administrator with the 11 i"i<-k; 503.
will annexed, for the recovery of any legacy, anniat)-, or bequest. 5 Gray, 07.'
Sect. 23. When by a last will and testament, or an instrument in Annuity given
the nature thereof, an annuity, or the use, rent, income, or interest, of {!)[ "yj "''™
any property, real or personal, or the income of any fund is given to, or is4s, 310, § 1.
in trust for the benefit of, a person for life, or until the happening of a
contingent event, he sliall be entitled to demand, receive, have, and en-
joy, the same, from and after the decease of the testator, unless it is
otherwise pro\-ided in such will or instrument ; or unless the same is
required for the payment of debts and other allowances having legal
preference out of the estate.
Sect. 24. If a person entitled U' such annuity, rent, interest or Apportionment
income, dies, or if such contingent event happens at any intermediate "ertain'caseB
time before the termination of a year from the time when the whole of is-is, 310, §2.
the annual amount for the preceding year has become due, such annuity,
rent, interest, or income, for the then current year, shall be ajiportioned,
and he or his representatives shall be entitled to receive a proportional
part thereof, unless it is otherwise provided in such will or instrument;
but no suit shall be brought against an executor for the recovery of such
annuity or interest, until the expiration of one year after he has assumed
his trust by giving bonds.
Sect. 25. If an executor or administrator unreasonably delays to ExecutorB, &c.,
raise money by collecting the debts and eflects of the deceased, or sell- JiinH!,.',,'"^,""^ "^
ing the real estate if necessarj"-, and he can obtain a license therefor, or -leiay, .tc.
neglects to pay what he has in his hands; and in consequence of such ''■•■'• •'"•J i''-
delay or neglect the estate of the deceased is taken on execution by any
43
494
ACCOUNTS, &c,, OP EXECUTORS AND ADMINISTRATORS. [ChAP. 98.
Claims of exec-
utors, &c.»
may be sub-
mitted to arbi-
tration.
E. S. 60, § 18.
9 Met. 239.
decided by
court or jury,
on appeal.
K. S. 68. § 19.
Estate of de-
ceased joint
debtor, liable.
E. S. 60, § 27.
2 Mass. 572.
4 Met. 544.
11 Cush. 152.
of his creditors, it shall be deemed unfaithful .idministratioii, nnd he
shall be liable in an action on his administration bond tor all damages
occasioned thereby.
Sect. 26. If a debt claimed by an executor or administrator as due
to him from the deceased, is dis]juted by any person interested in the
estate, the claimant shall file in the probate [court] a statement of his
claim in writing^ setting forth distinctly and fully the nature and
grounds thereof; and the same may then be submitted under an order
of the court to one or more arbitrators, to be agreed on by the claimant
and the ]>arty objecting. The court shall have like power to discharge
the rule by which the claim is referred, and to reject and disallow the
award, or to recommit it to the arbitrators, as might lie exercised by the
courts of common law with regard to cases referred by a rule of those
courts. The award of such arbitrators if accepted by the probate court
shall be fin.al and conclusive.
Sect. 27. If parties do not agi-ee in the appointment of arbitrators,
or if the award is not confirmed by the probate court, the judge shall
decide on the claim, upon such evidence as shall be adduced before him.
On appeal to the supreme court of probate, either party or the court
may have the claim submitted to a jury, and thereupon an issue shall be
made up, under the direction of the court, and tried by a jury as other
issues in civil actions are tried ; and the verdict thereon, being duly
allowed and recorded, shall be conclusive.
Sect. 28. When two or more persons are indebted in a joint con-
tract, or upon a judgment founded on such contract, and either of them
dies, his estate shall be liable therefor as if the contract had been joint
and several, or as if the judgment had been against himself alone.
CHAPTER 98.
OF THE ACCOUNTS AND SETTLEMENTS OF EXECUTORS AND
ADMINISTRATORS.
Sectiox
1. Personal estate, how accounted for.
2. Executors, &c., to be char<jed for increase
and allowed for decrease.
3. Probate court may order sale.
4. may license sale of outstanding claims
which cannot be collected without delay.
5. Executors, &c., may transfer mortgages,
&c.
6. not chargeable with bad debts.
7. chargeable with certain effects'not inven-
toried.
Section
8. Executors chargeable with income of real
estate, if received.
9. to render account within one year, and
further accounts, &c.
10. allowances to, for services, &c.
11. how liable for not rendering accounts.
12. Accounts settled, in what cases to be
opened.
13. Costs recovered against executor, &c., how
paid and allowed.
Personal estate
liow accounted
for.
E. S. 67, § 1.
Executors, &c.,
to be charged
for increase,
and allowed for
decrease.
E. S. 67, § 2.
Probate court
may order sale.
E. S. 67, 5 3.
Section 1. Executors and administrators shall account for the per-
sonal estate at its appraisal, except as hereinafter provided.
Sect. 2. They shall make no profit by the increase, and sustain no
loss by the decrease or destruction without their fault, of any part of
the estate ; if they sell any of the personal estate for more than the
appraised value, they shall account for the excess ; and if they sell any
for less than the appraised value, they shall be allowed for the loss, if it
appears to the proljate court that the sale was expedient and for the
interest of all concerned in the estate.
Sect. 3. The probate court, on application made by the executor,
administrator, or any person interested in the estate, after the return of
the inventory, may order any part or all of the personal estate to be
Chap. 98.] accounts, &c., of executors and administrators. 495
sold by public auction or private sale, as shall be deemed most for the
interest of all concerned; and the executor or administrator shall account
therefor at the price for which it sells.
Sect. 4. Tlie probate court upon petition of the executor or admin- Probate court
istrator, and after such notice thereof to the parties interested as the ™i'^; oi'out-''
court may order, and a heai'ins thereon, may for the purpose of closinu: s'""'"!?, . ,
the settlement ot an estate, hcense the executor or administrator to sell ..annut i>o loi-
and assign any outstanding debts, claim.s, and assets, which cannot be J|"j'"' without
collected, received, or detennined, without inconvenient delay. The iSoi, isc, § i.
sale shall be conducted in such manner as the court, having regard as
far as it may be thought advisable or prudent to the law in relation to
sales of real estate by executors and administrators, shall order.
Sect. 5. Nothing in the preceding section shall deprive executors Executors, &c.,
and administrators of the right to transfer at pleasure deeds of mort- m"rt!'a'"esr&c.
gage, and the real estate conveyed, and the debts secured, thereby, "^jfj-'*''-
either before or after possession taken for foreclosure ; and all such i^plck. si. '
transfers heretofore made, and all titles to real estate held under such '•* ^''^*- 1-"-
transfers, are ratified and confirmed.
Sect. 6. No executor or administrator shall be accountable for not charge-
debts inventoried as due to the deceased, if it a]ipears to the probate "i(![,'i"'"' '*"'*
court that they remain uncollected without liis fault. K- «.(">?,§ 4.
Sect. 7. Every executor and administrator shall be chargeable in rhargo.abie
his account, with all goods, chattels, rights, and credits of the deceased, JJ.[',s uot* imen-
which come to his hands and which are by law to be administered, al- '?''?''•
though they are not included in the inventory ; also with all proceeds r^Ma'ss.'ss. '
of real estate sold for the jiayment of debts or legacies, and with all j'p''il'"i55*'''
interest, profit, and income, that come to his hands from the personal
estate of the deceased.
Sect. 8. If the real estate has been used or occupied by the execu- with meome
tor or administrator, he shall account for tlie income thereof, as ordered ^ccdved!'"''^ "^
by the probate court with the assent of the executor or administrator J'-''- ""j § •>..
and of such other parties interested as are present at the rendering ic, siiiss.afo.'
of the account. If the parties do not agree on the sum to be allowed, ' ,'!'"''■ l.^'j;
11111 -111 1-. 1 1 • 1*' *^^^yj **3.
It shall be determined by three disinterested persons to be appointed
by the probate court, whose award being accepted by the court shall
be final.
Sect. 9. Every executor and administrator shall, within one year co'mrwftwu""
after giving bond for the discharge of his trust, render ujion oath his ""f ya^i ^d
first account of .administration ; .and such further accounts from time to counts, &c.
time as may be necessary or convenient, or as the probate court may f pii;,['~J9|''*
require, until the estate is wholly settled; and he may be examined on ii Mot.'ssV
oath before the court upon any matters relating to his accounts. §§ ii,S'.'' '"''
Sect. 10. Executors and administrators shall be allowed their rea- allowances to
sonable expenses incurred in the execution of their respective trusts, i^"7-hTi'^'''
and shall have such compensation for their services as the court in which
their accounts are settled considers just and reasonable.
Sect. 11. When an executor or .idministrjitor, after being duly cited how liable
by the probate court, neglects to render an account of his administra- in^acco'unts!'
tion, his bond may be put in suit as provided in chapter one hundred J'y'^'f'J'-
and one; and if he persists in such neglect, judgment shall be rendered " ''^' '
against him, and he shall be liable in like manner and to the same
extent as an executor in his own wrong.
Sect. 12. When an account is settled in the absence of any person Accounts set-
adversely interested, and without notice to him, the account may be clisc's'toTe"'
opened, on his application at .anytime within six months thereafter; opened.
and upon the settlement of any account by an executor or administra- 3 r-oster, 225!
tor, all his former accounts may be so far opened as to correct any niis- L'V.''H' ';,«
, ' , . '' , 1 ■ 1 . 1 - 20 l»]ck. 510.
take or error therein ; except that any matter m dispute lietween two n jut. im.
parties, which had been jjreviously heard and determined by the court, '^''''-" '^^' '"'' ^ '"
496
INSOLVENT ESTATES OF DECEASED PERSONS. [ChaP. 99'.
Costs recovered
against execu-
tor, &c.y how
paid and allow-
ed.
E. S. W, § II.
16 Mass. 530.
sli.ill not be again brought in question by either of the same parties
without leave of the court.
Sect. 13. If judgment is recovered against an executor or adminis-
trator for costs in a suit commenced or prosecuted by him in that ca-
pacity, the estate in his hands sliall not be taken on e.xecution therefor,
but execution shall be awarded against him as for bis own debt ; and
the amount paid by him thereupon shall be allowed in his administra-
tion account, unless it appears to the probate court that the suit was
commenced or prosecuted unnecessarily or without reasonable cause.
CHAPTER 99.
OF INSOLVENT ESTATES.
Section
1. Debts entitled to preference.
2. Represi'iitatiou of insolvency, and appoints
nii'iit III' coiinnissionera.
3. CommissiiniiTs to give notice of mectin«^8.
4. to make report in six or eighteen mouths.
5. 6, 7. Provision for contingent debts.
8. Claims to be decided at common law, upon
appeal,
9. Notice to be given on appeal, and when.
10. Trial and judgment, but no execution
thereon.
11. Claim may be submitted to arbitration.
12. Costs upon appeal.
13. Remedy when appeal is omitted by acci-
dent, &c.
14. Allowance of appeal not to disturb prior
dividends.
15. Commissioners, &c., may examine claim-
ant on oath.
16. may administer oaths.
Section
17. Copartnership and individual claims to be
separate.
18. Distribution among creditors after com-
missioners' return.
19. Furtlier distribution.
20. Actions by creditors after representation of
insolvency.
21. Claims not proved to be barred, unless, .fee.
22. If assets sufficient, debts paid iu fuU- Sur-
plus.
23. Surplus, how divided.
24. Admluistrator liable only for assets in his
hands.
25. Creditor may sue after eighteen months, in
case, &c.
26. Penalty on executor, &c., neglecting to set^
tie accounts.
27. Dividends unclaimed for twenty years, to
be distributed among creditors, &c.
28. Administration on estates of creditors en-
titled to such dividend.
Debts entitled
to preference.
K. S. G8, § 1.
1852, 139.
16 Mass. 308.
4 Met. 317.
9 Met, 180, 507.
See § 18.
Ch. 127, § 4.
Representation
of insolvency,
and apjioiut-
nii-'Ut of com-
missioners.
R. S. 68, § 2.
16 Mass. 308.
6 Pick. 481.
CommisBloncrs
Section 1. When the estate of a person deceased is insolvent or
insufficient to pay all his debts, it shall, after discharging the necessary
expenses of liis funeral, last sickness, and administration, be applied to
the payment of his debts in the follomng order : —
First. Debts entitled to a preference under the laws of the United
States :
Second. Public rates, taxes, and excise duties :
Third. Debts due to all other persons.
If there is not enough to pay all the debts of any class, the creditors
of that class shall be paid ratably upon their respective debts; and no
payment shall be made to creditors of any class until all those of the
preceding class or classes, of whose claims the executor or administrator
has notice, are fully paid.
Sect. 2. When it appears to the probate couit from the representa-
tion of an executor or administrator, that the estate of the deceased
will probably be insufficient for the payment of his debts, the court
shall appoint two or more fit persons to be commissioners to receive and
examine all claims of creditors against the estate, and to return a list of
all claims laid before them, with the sum allowed on each claim. The
commissioners shall be sworn before entering on the duties of their
office.
Sect. 3. They shall appoint convenient times and places for their
/
Chap. 99.] insolvent estates of deceased persons. 497
meetings to receive and ex.imine claims of creditors, and sliall by mail to give notice
or otherwise give to all known creditors at least seven days' written R."\Tis,"f3;
notice of the time and place of each meeting, and also such other notice is«, 9^.'
thereof as the court shall order; and the executor or administrator shall,
fourteen days at least before the first meeting, furnish to the commis-
sioners the names and residences of all known creditors.
Sect. 4. Six months after the appointment of the commissioners Commissioners
shall be allowed for the creditors to present and prove their claims ; k. s."!jj, j'"]!"'^'
and the court may allow such further time for this jiurpose, not exceed- o iick. iss.
ing eighteen months ii'om the date of the commission, as shall be deemed '^"' ^ '*'
necessary ; and at the ex])iration of the time for the proof of debts, the
commissioners shall make their return to the jirobate court.
Sect. 5. If at the return of the commission any ])erson is liable as a Provision for
surety for the deceased, or has any other contingent claim against liis Jiobt"!^™'
estate which could not be proved as a debt under the commission, the k. s.'ss, §5.
court u]X)n proof thereof shall, in ordering a dividend, leave in the hands ' '^^' ^~'
of the executor or administrator a sum sufficient to jjay to such contin-
gent creditor a proportion equal to what shall then be paid to the other
creditors.
Sect. 6. If such contingent debt becomes absolute within four years Same subject.
after the date of the administration bond, it maybe allowed by the i'*'-'^'§«-
probate court if not disputed by the executor or administrator; and if
disinited, it may be proved before the commissioners already ajipointed
or others to be appointed by the judge, iu like manner as if presented
before the first return of the commissioners.
Sect. 7. Upon the allowance of such claim, the creditor shall lie same subjecf.
entitled to a dividend thereon equal to what has been ]iaid to the other I'-S-cs, §7.
creditors, so far as the same can be jiaid without disturbing the former
dividend; and if his claim is not finally established, or if the dividend
due to him does not exhaust the assets in the hands of the executor .
or administrator, the residue of the assets shall be divided among all
creditors who have jn-oved their debts.
Sect. 8. Any jjerson whose claim is disallowed in whole or in part, claims to be
and any executor or administrator who is dissatisfied with the allowance num'Jawfupon
of a claim, m.ay appeal from the decision of the commissioners, and the "I'l'eai.
claim shall thereupon be deteiinined at common law in the county in i.saVans.
which the probate or administration is granted. If the demand exceeds J,"^'}','./"!?;,
the sum of three thousand dollars in the county of Suffolk, or one s kct! 132'.
thousand dollars in any other county, the appeal shall be directly to the
sujireme judicial court ; otherwise to the sujierior court ; and in either
case it shall be tried and <letennined in like manner as if an action had
been brought therefor by the supposed creditor against the executor or
administrator.
Sect. 9. Such appeal shall be claimed and notice thereof given at Notice to be
the probate office within thirty days after the return of the conimission- Swi'i'™*''^'
ers. If the appeal is by an executor or administrator, he shall give u. s. os, §9.
notice thereof to the creditor within said thirty days. The appeal shall
be entered at the court appealed to, held next after the expiration of
said thirty days.
Sect. 10. At the term of the court at which the ajijieal is entered, Trial and jndg-
the supposed creditor shall file a statement in writing of his claim, set- ^Ifcution '^°'
ting forth briefly and distinctly all the material facts which would be tbereon.
necessary in a declaration for the same cause of action ; and like pro- ' '
ceedings shall be thereupon had in the pleadings, trial, and detennina-
tion, of the cause, as in an action at law prosecuted in the usual manner;
except that no execution shall be awarded against the executor or
administrator for a delit found due to the claimant. The final judgment
shall be conclusive, and the list of debts allowed by the commissioners
shall be altered, If necessary to conform thereto.
42* G3
498
INSOLVENT ESTATES OP DECEASED PERSONS. [ChaP. 99.
Claim may be
submitted to ar-
bitration.
K. S. Ii8, § 11.
la CusU. 220.
Costs upon ap-
peal.
E. S. 68, § 12.
Remedy when
jippeal is omit-
ted by acci-
dent, &c.
R. .S. IK, § 13.
7 Met. :ill.
Allowance of
appeal not to
disturb prior
dividends.
R. S. OS, § 14.
Commission-
ers, &e., may
examine claim-
ant on oath.
R. S. (is, § 15.
may adminis-
ter oaths.
R. S. 68, § 16.
Distribution
amou<^ cn^dit-
ors, after com-
miasiouera' re-
turn.
R. S. fiS, § 17.
1 Greeul. 251.
4 Met. 317.
Copartnership
and individual
claims to be
separate.
10 Met. :)05.
See Ch. 118,
§109.
Further distri-
bution.
R. S. «S, § 10.
3 Pick. 305.
Actions by
creditors after
representation
of insolvency.
R. S. lis, § 19.
1 Mass. 503.
4 Mass. IU4.
Sect. 11. After the claiming of such appeal, the parties may waive
atrial at law and submit the claim to the determination of arbitrators to
be agreed on between tliem, and a]ipointed accordingly by a rule of the
probate court ; in which case the ajjpeal shall not be entered at tlie court
appealed to ; and the award of such arbitrators, if accepted by the court,
shall be conclusive in like manner as is provided in the preceding section
with regard to a judgment in a court of common law.
Sect. 12. The party prevailing upon such appeal shall be entitled to
costs, which if recovered against the executor or administrator may be
allowed to him in his administration account.
Sect. 13. Any person whose claim is disallowed by the commis-
sioners, and who, for other cause than liis own neglect, omits to claim or
prosecute his appeal as before provided, may, upon his petition therefor
to the supreme judicial court holden in any county, be allowed to claim
and prosecute an appeal in manner aforesaid, u}Km such terras as the
court imposes, if it appears that justice requires a further examination
of his claim ; but no such petition shall be sustained unless presented
within two years after the return of the commissioners, and within four
years after the date of the administration bond.
Sect. 14. The allowance of such appeal and the judgment thereon
shall not disturb any distribution ordered before notice of the petition,
or notice of the intention to present the same has been given in writing
at the prol>;ite office or to the executor or administrator; but the debts
thus proved an<l allowed shall be paid only out of such assets as remain
ill or come to the hands of the executor or administrator after payment
of the sums due on such prior decree of distribution.
Sect. 15. The commissioners may require the claimant to make true
answers under oath to all questions relating to his claim ; and if he re-
fuses to take such oath or to answer fully all questions, they may dis-
allow his claim. On appeal from their award, the court shall have like
power to examine the claimant and disallow his claim.
Sect. 16. Either of the commissioners may administer oaths to
claimants and to witnesses.
Sect. 17. After the expiration of thirty days from the return of the
commissioners, the probate court shall make such decree for the dis-
tribution of the effects among the creditors, as the case according to the
jirovisions of this chajiter requires. If before making the decree the
court has notice of an a])peal from the commissioners, then claimed or
pending, the decree may be suspended until tlie determination of the
appeal, or a distribution may be ordered among the creditors whose
debts are allowed, leaving in the hands of the executor or administrator
a sum sufficient to pay the claimant whose demand is disputed a pro-
portion equal to that of the other creditors.
Sect. 18. If the deceased had been a member of a copartnership,
and copartnership and indi^ndual claims are proved against his estate,
the commissioners shall make separate lists of said claims. In making
a dividend the court .shall order the joint and separate estate to be dis-
tributed in the same manner, an<l among the same classes of creditors,
as provided in tlic case of insolvent debtors under chapter one hundred
and eighteen.
Sect. 19. If the whole assets are not distributed upon the first de-
cree, or if further assets come to the hands of the executor or adminis-
trator, the probate court shall make such further decrees for distribution
as the case requires.
Sect. 20. No action shall be maintained against an executor or ad-
ministrator after an estate Is represented insolvent, unless for a demand
entitled to a preference and which would not be affected by the insol-
vency of the estate, or unless the assets prove more than sufficient to
pay all the debts allowed by the commissioners. If the estate is repre-
Chap. 99.] insolvent estates op deceased persons. 499
sented insolvent while an action is pending for any demand that is not fiPick.aio.
entitleil to sucli preference, the action may be discontinued without
payment of costs ; or, if the demand is disputed, the action may be tried
and determined and judgment rendered thereon in the same manner
and witli the same effect as is provided in the case of an appeal from
tlie award of commissioners ; or the action may be continued without
costs until it ayipears whether the estate is insolvent, and if not insol-
vent the plaintitf may prosecute the action as if no such representation
had been made.
Sect. 21. Every creditor of an insolvent estate who does not pre- claims not
sent his claim for allowance in the manner herein prescribed, shall be [Jj1"J',Jj ^''nS'Jsg
barred from recoverinsi the same unless further assets of the deceased &c.
come to the hands of the executor or administrator after the decree of is' jiaBs'. i4o,'
distribution; in which case his claim may be proved, allowed, and jiaid, JY'~?*'4-i
in the manner and with the limitations provided in this chapter for 3 Cush! 4C5!
contingent debts.
Sect. 22. If after the report of the commissioners, the assets prove if assets suffi-
sufEcient to pay all del)ts allowed, the executor or administrator shall piJid*'in fuu.
pay them in full; anrl if any other debt is aften^'ards recovered ajjainst Surplus.
him, he shall be liable therefor only to the extent of the assets then ' '
remaining.
Sect. 23. If there are two or more such creditors, the assets, if in- Surplus, how
sufficient to pay their demands in full, shall be divided among them in i"s''os §22.
proportion to their debts.
Sect. 24. The executor or administrator, in an action brought against Administrator
him on such demand, may prove the amount of assets in his hands, a9scts°in'L8"
and thereupon iudo;ment shall be rendered in the usual form ; but exe- immis.
cution shall not issue for more than the amount of such assets ; and if ' ' '
there are two or more judgments, the court shall apportion the amount
between them.
Sect. 25. If it is not ascertained, at the end of eighteen months Creditor may
after the granting of letters testamentary or of administration, whether eivhu'cn
an estate represented insolvent is or is not so in fact, any creditor whose months, in case,
claim has not been presented before the commissioners may conimeiice 'n.'s. ns, fw-
an action therefor against the executor or administrator, which may be iti-', 2',«, § 1.
continued without costs for the defendant until it appears A\liether the
estate is insolvent. If it appears solvent, the plaintiff may prosecute
the action as if no such representation had lieen made.
Sect. 26. If an executor or administrator neglects to render and Penalty on cx-
settle his accounts in the probate court within six months after the re- loi'ting Vo s'ttfe
turn made by the commissioners or the final liquidation of the demands 5?™""'"-,,,.
of the creditors, or within such further time as the court shall allow, c GreenL^al s.
and thereby delays a decree of distribution, such neglect shall be ^ *'■-'*• "^•
deemed unfaitliful administration ; and he may be forthwith removed,
and shall be liable in a suit on his bond for all damages occasioned by
his default.
Sect. 27. After twenty years from the decree of distribution of an Dividends un-
insolvent estate, the ]irobate court, upon a]i]ilieation by any creditor uy™tyyeli->i,
whose claim was proved and allowed, and after notice of such applica- to be distribut
,. ii'iTc 1 , 11 .li ed amoncf cred-
tion publisned tor not less than two years on sucli days as tlie court itors.Ac.
shall direct, in one or more newspapers of the county, ma}' order any '*^' "5' 5 1-
unclaimed dividends, with the interest received thereon, after deducting
all expenses and charges of administration since the decree of distribu-
tion, to be distributed anew among the creditors who have received
their dividends. If there is a surplus after satisfying the claims of such
creditors with interest, it shall be distributed to the heirs of the de-
ceased.
Sect. 28. If a creditor who has failed to receive his dividend as Administration
aforesaid has deceased, the probate court for the county in which ad- ??editorrenti
500
TRUSTS.
[Chap. 100.
tied to such
dividends.
1*H, 115, §2.
ministration on his estate might have been granted, sliall, at any time
before passing a decree to distribute tlie unclaimed dividends, grant
administration upon his estate, altliougli more tlian twenty years may
have elapsed since his death, and the administrator may receive and
administer such dividend.
CHAPTER 100.
OF TRUSTS.
Section
1. Testamentary trustecB to give bond.
2. except in certain cases.
3. further exception.
4. neglecting.
6. may resign.
0. executor of, not bound to accept.
7. Probate courts may appoint trustee when
necessary.
8. Trustee may be removed and new appointed
in certain cases.
9. appointment of new, when trustee re-
signs, &c.
10. Courts may order conveyances to new
trustee.
11. Trustee appointed by court to give bond.
12. proceedings in suits on bonds of.
1.3. Appr.aisers, when appoiuted.
Section
H. Probate courts, &c., may authorize sales
and investments.
15. Projierty held in trust by minors, &c., may
be sold and conveyed in certain cases.
16. Power, &c., of S. J. C. as to sale, &c., of
trust estates.
17. Probate courts may terminate trusts cre-
ated by persons deceased for benefit of cred-
itors.
18. Preceding section not to apply in certain
cases.
19. Certain trusts to be declared in writing.
20. not to affect purchasers, without notice.
21. Recording declaratiou of trust, equivalent
to notice.
22. Trusts under wills. Equity powers, &c.
Testamentary Sectiox 1. Every trustee under a will, except such as are exempted
trustees to give as hereinafter provided, shall before entering on the duties of his trust
K. 8.69, §1. give bond with sufficient surety or sureties to the judge of the probate
■'2'i'ick''''i5 court for the county in which the will is proved, and in such sum as
Biiet. 535. ' the judge orders, with condition substantially as follows, (except as
provided in ch.apter one hundred and one : ) —
First. To make a true inventory of all the real estate, floods, chattels, rights, and
credits, belonging to him as trustee, and which shall come to his possession or knowl-
edge, and to return the same into the probate court at such time as the court directs :
Second. To dispose of and manage all such estate and effects, and faithfully dis-
charge his trust in relation thereto, according to law and the will of the testator :
Third. To render an account on oath of the property in his hands and of the man-
agement and disposition thereof, within one year and at any other times when required
by the probate court ; and
Fourth. At the expiration of his trust, to settle his accounts with the probate court,
and pay over and deliver all the estate and effects remaining in his hands or due from
him on such settlement, to the person or persons entitled thereto according to law and
the will of the testator.
except in cer-
tain cases.
K. S. B9, § 2.
further ex-
ception,
R. .S. 09, § 3.
Sect. 2. He shall be exempt from giving bond when the testator in
the will appointing him has so ordered or requested, unless from a
change in his situation or circumstances, or other sufficient cause, the
court deems it proper to require a bond; and he shall also be exempted
when all persons interested in the trust fund, being of full age and legal
cajiacity, certify to the court their consent that such bond shall not be
required.
Sect. 3. No trustee who has heretofore undertaken a trust, shall be
required to give bond in any case in which it was not required by laws
in force at the time of his undertaking the trust, unless, from a change
in his situation or circumstances, or other sufficient cause, the probate
court deems it proper to require a bond.
Chap. 100.] trusts. 501
Sect. 4. Every trustee under a will who neglects to give bond as Trustee ncg-
aforesaid within such time as tlie probate court allows, shall bo consid- r^s'.'S'j, H-
ered as having declined the trust.
Sect. 5. Every such trustee may, nyion his own request, be allowed may reBign.
to resign his trust, when it appears to the probate court proper to allow !*• S- li'Ji § 5.
the same.
Sect. 6. No person succeeding to such trust as executor or adminis- executor of,
trator of a former trustee, shall be requii'ed to accept the same against "eiV""' " ""^
his will. K.S'.69,§0.
Sect. 7. If in a will the testator has omitted to appoint a trustee Probnto courts
in this commonwealth, and if such ajipointment is necessary to carry "|I",^,e),''Jvi',".n
into eftcct the jirovisions of the will, the )>robate court mny, after notice necessary.
to all persons interested, a]i])()int a trustee who shall have the same i^s^soMi.
powers, rights, and duties, an<l in whom the estate shall vest in like
manner as if he had been originally a])pointed by the testator.
Sect. 8. The jiroliate courts in the several counties, as well as the Trustee may be
supreme judicial court, u])on application of the parties, (other than the J^™nim'oh"ted
trustee,) beneficially interested in a trust estate created by will, deed, i" eertuin tvises.
indenture, or other instrument, may, if it appears essential to the inter- iMit'iTi!
ests of the apiilicants, remove the trustee after he has had notice of the }'*i:V'l'~;„,
,..'', ' . ,1,1, 1,11 'let. I(M.
application, antl an opjiortunity to be lieard and sliow cause why the i Gray, a:;!),
removal should not be made. Tlie probate court, after notice to the
trustee and all other jiersons interested, may also remove any such
trustee who becomes ins;uie, or otiierwise incapable of discharging his
trust, or evidently unsuitable therefor.
Sect. 9. When a trustee under a written instrument, declines, re- appointment
signs, dies, or is removed, before the objects thereof are acconqilished, "^"tce reBi™u8
G9,§§:
I'.i.
if no adecjuate provision is made therein for su)i]ilying the vacancy, the &»-,
probate court or supreme judicial court shall, alter notice to all ]>ersons im:'(,'
interested, a])])oint a new trustee, to act alone or jointly with the others J!f pj ~|l'~\,g
as the case may be. Such new trustee, u])on giving the bonds and 4~Met. iso. '
security required, shall have and exercise the same ]iowers, rights, .and j~Grav''\;to.
duties, whether as a sole or joint trustee, as if he had been originally 5 Gray, 330.
ap]iointed, and the trust estate shall vest in him in like manner as it had
or would have vested in the trustee in whose ])lace he is substituted.
Sect. 10. Upon the ajijionitment of a trustee under the jireceding Court mayor-
section, the court may order such conveyances to be made by the former ccs to"ue\7tru9-
trustee or his representatives, or by the other remaining trustees, as may t|<'-
be pro]>er or convenient to vest in such trustee, either alone or jointly isia, lu.
with the others, the estate and effects to be held in trust.
Sect. 11. Every trustee appointed by the probate court under a Trustee ap-
will, shall, before entering on the duties of his trust, give bond as pre- coirt^to Wve
scribed in section one; excei)t that the court may disiiense with the ','<'"'••, ,„
makmg and returning of an inventory by a new trustee when it appears
unnecessary ; in which case the condition of the bond shall be altered
accordingly.
Sect. 12. Bonds given by trustees under this chapter may be put in proceedings
suit by order of the probate court for the use and benefit of any jierson b'JiiKis'of?"
interested in the trust estate ; and the jiroceedings in such suit shall be i'- s. 09, § 1.3.
conducted as jirovided in chapter one hundred and one with respect to
bop.ds given by executors or administrators.
Sect. 13. When an inventory is required to be returned by a trustee, Appraisers,
the estate and effects shall be appraised by three suitable persons, to be ea."^" "''''"'"
apjiointed and sworn as prescribed by law with respect to the estate of k- s. eg, § 10.
a deceased person.
Sect. 14. The probate courts, in the several counties, and the sn- Probate courts.
preme judicial court, may, on a)3j)lication of the trustee under a will or lh'i;i-i"tS'L"es
of any person interested in the trust estate, after notice to all other nnd invest-
persons interested therein, authorize or require such trustee to sell any k. s.(i9, §11.
502
TRUSTS.
[Chap. 100.
Property held
in trust by mi-
uors, &c., m.iy
be soli aud eou-
veyed in certain
cases.
1845. (1-t.
1S53, .371, § 1.
lS)j, Ifti, I ■-'.
1S5I), 38, § 2.
Power, &c., of
S. J. C. as to
sale, &c., of
trust estates.
184U, !>«.
1853, 371, § 1.
1S55, 194, § 2.
1850, 38, § i.
Probate courts
uiay terminate
trusts created
by persons de-
ceased for bene-
fit of creditors.
18S0, 241, § 1.
Preceding sec-
liun not to ap-
ply in certain
cases.
1850, 241, § 3.
Certain trusts
to be in writing.
K. S. 59, § 30.
4 Met. 537.
10 Cush. 471.
7 Gray, 369.
not to affect
purchasers
without notice.
K. S. 59, § 31.
Recording dec-
laration of trust
equivalent to
notice.
personal estate or effects held by him in trust, and invest the ]iroeeeds
and any other trust money in his hands, in real estate or in any otiicr man-
ner most for the interest of all concerned therein ; and said courts may
from time to time give such further directions as the case may ivijuire
for managing, investing, and disposing of, the trust fund, subject to the
provisions of the will.
Sect. 15. When a person seised or possessed of an estate, real or
personal, or any interest therein, upon a trust, express or implied, is
under the age of twenty-one years, insane, feme covert, or out of the
commonwealth, or not amenable to the process of any court therein
having equity powers, and in the opinion of the supreme judicial court
it is fit that a sale be made of such estate, or of any interest therein, or
that a conveyance be made thereof, in order to carry into eft'ect the
objects of the trusts ; the court may by decree direct such sale or con-
veyance, and appoint some suitable person in the place of the trustee to
sell ov convoy the same in such manner as it may require. If a person
so seised or jjossessed of an estate, or entitled thereto u])on a trust, is
within the jurisdiction of the court, he or his guardian may be ordered
to make such conveyances as the court may deem proper.
Sect. IC. The supreme judicial court, when a sale and conveyance of
any trust estate have become necessary or expedient, upon a suit in
eciuity brought by a party interested therein, may decree such sale and
conveyance, and the investment, reinvestment, and a])]ilication, of the
proceeds thereof, upon such security aud in such manner as shall best
effect the objects of the trust, and be most safe and beneficial for all in-
terested tlierein.
Sect. 17. When it appears upon petition or otherwise to the pro-
bate court of the county where letters testamentary or of administration
have been granted on the estate of a person deceased, that such jjcrsoii in
his lifetime made a conveyance of real estate in this state in trust for
the benefit of his creditors, and the trustee certifies that all the debts
secured therel)y (due to other i)ersons than himself) have been paid, or
otherwise adjusted to the satisfaction of the creditors so far as known,
ami that he is desirous to settle his trust account and terminate the
trust, the court shall appoint a time and ])l:ice for hearing all ])ersons
interested therein; notice of which shall be given by advertisement in
some newspaper jjrinted in the county or otherwise as the court may
order. Upon such hearing the court may terminate the trust so far as
the creditors and persons claiming under them are concerned, and dis-
charge such real estate therefrom ; and may settle the trust account,
and make any further order as to the disposition, distribution, or parti-
tion, of the remaining trust estate, not inconsistent with the provisions of
the original instrument creating the trust.
Sect. 18. The preceding section shall not apply to any case
where the instrument creating the trust does not bear date more than
six years previous to the time ap]>oiiited for tlie hearing. Nor .shall it
aflect the operation of the insolvent laws of this state.
Sect. 19. No trust concerning lands, except such as may arise or
result by im])lication of law, shall be created or declared, unless by an
instrument in writing signed by the party creating or declaring the same,
or liis attorney.
Sect. 20. No such trust, whether implied by law or created or de-
clared by the ])arties, shall defeat the title of a purchaser for a valuable
consideration and without notice of the trust, nor prevent a ereilitor
who has no notice of the trust from attaching the premises or taking
them on execution, in like manner as if no such trust had existed.
Sect. 21. When a trust is created or declared by any such instru-
ment in writing, the recording thereof in the registry of deeds for the
county or district where the lands lie, shall be deemed equivalent to
Chap. 101.] death, removal, &c., of executors, &c.
503
actual notice to every person claiming under a conveyance, attach- R. s. 59, §33.
meat, oV execution, made or levied after such record.
Sect. 2'i. The jirobate courts in the several counties, concurrently Trusts under
with tlie supreme judicial court, may hear and determine in equity all K<n\i'ty powers,
matters in relation to trusts created by will, not particularly mentioned S*=-
• 4.1 ■ I * ^ > r J R. S. 69, § 12.
m this chajiter.
CHAPTER 101
SPECIAL PROVISIONS RELATING TO ESTATES, TRUSTS, AND
GUARDIANSHIPS.
death, removal, &c., op executor, &c.
Section
1. When executor, &c., dies, administration
de bonis non granted.
2. Executor, &c., removable for cauRe, &c.
3. acts of, before removal, valid.
4. JIairiajje of executrix, &c., extinguishes
authority.
5. Executor, &c., may resign, &c.
ACCOUNTS, DISCHARGES, COMPROMISES,
RELEASES.
6. Accounts of joint executors, &c.
7. I^ual discharge of executor, &c., and evi-
dence tliereof perpetuated.
8. Mouey due, if not cliumed, to be deposited,
&c,
9. How paid afterwards.
10. Executors, &c., may be authorized to com-
promise claims, &c.
11. to release certain interests in real or per-
sonal estates, &c.
BONDS.
12. Sureties in bonds to be inhabitants of state,
&c. Bonds to be approved.
13. Executors, &c., when exempt from giving
bond, &c.
14. bonds of, may be joint or several.
15. When sureties or penalty insufficient, new
bond required.
10. Surety may be discharged upon petition,
&c.
17. Principal to give new bond, &c.
18. Trior sureties liable until, &c.
Section
19. When bond may be put in suit by creditor.
20. when estate is insolvent.
21. when lor benefit of next of kin.
22. or of any other person interested.
23. How bond sued when judge is obligor.
24. Register may authorize suit.
25. Writ Iiow indorsed and who liable for costs
of suit.
2Ci. Process to bring in principal obligor.
27. Same subject.
28. Proceedings in suit on bond. Judgment and
execution,
29. Moneys received thereon, how disposed of.
30. Scire facias to recover further damages.
«
liability of heirs, &c., for debts of
deceased.
31. Estate of deceased in bands of heirs, &c.,
liable for certain debts.
32. Jlode of proceeding in sucli case.
Xi. Estate of heir, &:c., liable after death.
34. When two or more liable, creditor may pro-
ceed in equity.
35. Case of insolvency, &c., of heir or devisee.
36. New defendants may be summoned in, and
anunulments allowed.
37. Heirs, &c., liable to contribute between
themselves.
estates of persons not inhabitants OF
THLS state.
38. Administration of estate of foreigner, &c.
39. Settlement of such estate.
40. 41, 42. if estate is insolveut.
DEATH, REMOVAL, &C., OP EXECUTOR, &C.
Section 1. When a sole or survmng executor or administrator dies
without ha\ing fully administered an estate, if there is personal estate
of the deceased not administered to the amount of twenty dollars, or
debts to that amount remaining due from the estate, or any thing
remaining to be pei*fbrme<l in execution of the will, the probate court
shall grant letters of administration, with the will annexed or otherwise
as the case may require, to some suitable jjerson to administer the goods
and estate of the deceased not already administered.
Sect. 2. When an executor or administrator residing out of this
state, having been duly cited by the probate court, neglects to render
his accounts and settle the estate; or when an executor or administra-
tor becomes insane or otherwise incapable of discharging the trust,
or evidently unsuitable therefor; the probate coui-t may remove him ;
and thereupon the other executor or administrator, if there is any, may
When executor,
A'c, dies, ad-
ministration de
bi)>iis non
•rriiuterl.
\l. S. (-.3, §10.
II. S. W, § 14.
2 rick. 3(11.
3 Met. 1N7.
See Ch. %, § 10.
Executor, &c.,
removable for
cause, Arc.
K. S. 03, §7.
K. S. (H, §15.
11 Met. 104.
504
PROBATE ACCOUNTS, DISCHARGES, COMPROMISES, &c. [ChAP. 101.
Executor's acts
hclbre rtjmoval,
valid.
K. S. 70, § 20.
Marriage of ex-
ecutrix, &c.
Jt. S. (», § 9.
K. S. (H, § 17.
H Mass. 2115.
17 Mass. 341.
0 Met. 194.
Executor, i-c,
may resifju, &c.
1»«, 97.
3 Met. 187.
H Met. 104.
Accounts of
joint execu-
tors, »&c.
K. S. 70, § 31.
K. S. 79, § 33.
Final discharge?
of e.vecutor,
Jvr. ; and cvi-
driu'r tlirn-nf
IK-riM-tuatcd.
K. S. 70, § 3J.
See Ch. 98.
MouoT due, if
not claimi-d, to
Li- 4k'l)osilL'd,
&C.
B. S. 70, §33.
How paid after-
wards.
R. S. 70, § .34.
Executors, &c.,
may compro-
mise claims,&c.
KSoo,432.
to release cer-
jirocced in discharging the trust as if the one removed were dead. If
thiTO is no otiier executor or ailministrator, tlie court may commit ad-
ministration of tlie estate not already a<lniiiustered, to sucli jjerson as
shall be deemed tit, in like manner as if the executor or administrator
removed were dead.
Sect. 3. When an executor or administrator is removed, or letters of
administration are revoked, all jirevious sales, whether of real or ])er-
sonal estate, made lawfully by the executor or administrator, and with
good faith on the part of the purchaser, and all other lawful acts done
by such executor or administrator, shall remain valid and eifectual.
Sect. 4. When an unmarried woman who is executrix or adminis-
tratrix, either alone or with another person, marries, her husband shall
not be executor or administrator in lier right, but the marriage shall
operate as an extinguishment of her authority ; and the other executor
or administrator, if there is any, may proceed in discharging the trust
as if she were dead. If there is no other executor or administrator,
administration may be granted of the estate not already administered.
Sect. 5. An execut(jr or aduiinistrator may upon his request be al-
lowed to resign his trust, when it ajipears to the probate court to be
proper; and upon such resignation the court shall grant letters of ad-
ministration, with the will annexed or otherwise as the case may
require, to some suitable person, to administer the goods and estate not
already administered.
ACCOUNTS, DISCHARGES, COMPROMISES, RELEASES.
Sect. 6. Probate courts may allow the account of two or more
joint executors, administrators, guardians, or trustees, upon the oath of
one of them.
Sect. 7. When an executor, administrator, guardian, or trustee, has
paid or delivered over to the persons entitled thereto, the money or
otlior property in his hands, as required by a decree of a jn-obate court,
he may perpetuate the evidence thereof by presenting to said court,
within one year after the decree is made, an account of such payments
or of tlie delivery over of such property; which being ])i-oved to the
satisf iction of the court, and verified by the oath of the party, shall be
allowed as his linal discharge and ordered- to be recorded. Such dis-
charge shall forever exonerate the party and his sureties from all lia-
bility under such decree, unless his account is impeached lor fraud or
m.aiiife.st error.
Sect. 8. If any sum of money directed by a decree of the probate
court to be paid over, remains for six months unclaimed, the executor,
administrator, guardian, or trustee, M'ho was ordered to jiay over tlie
same, may deposit it in some savings bank or other like institution, or
in\-cst it in bank stock or other stocks, as the ]:irobate court directs, to
accumulate for the benefit of the person entitled thereto. Such dejiosit
'or investment shall be made in the name of the judge of the probate
court for the time being, and shall be subject to the order of the
judge and his successors in office as hereinafter jirovided. The jierson
making such deposit or investment shall file in the probate court a
memoranduin thereof, with the original certificates or other evidence
of title thereto, which shall be allowed as a sufficient voucher for such
payment.
Sect. 9. When the ])ersoii entitled to the money deposited satisfies
the judge of his right to receive the same, the judge shall cause it to be
paid over and transferred to him.
Sect. 10. Probate courts may authorize executors, administrators,
guardians, and trustees, to adjust by arbitration or compromise, any de-
maiuls in favor of or against the estates l)y them rejiresenled.
Sect. 11. They may authorize executors, administrators, guardians.
Chap. 101.] probate bonds. 505
and trustees to release and discharge, upon such terms and conditions tain interests in
as api)oar jiroper, any vested, contingent, or possible right or intei-est est!it"s,'\IJ!™
belonging to the persons or estates by them rejirosented, in or to any ib55, so;, § -j.
real or personal estate, whenever it appears to be for the benefit of the
persons or estates in trust.
BONDS.
Sect. 12. The sureties in every bond given to the judge of a pro- Sureties iu
bate court shall be inhabitants of this state, and such as the judge habitauts''o'f'°"
approves; and no bond required to be given to the judge of the pro- state, &c.
bate court, or filed in the jirobate ofiice, shall be sufficient, unless proved." " ^^
examined and approved by the judge, and his approval thereof under JJ- 1- ^' |2-
his official signature is written thereon.
Sect. 13. Executors, administrators, guardians, trustees, and other Executors, ie.,
persons, may be exempted by the probate court from giving bond for fr,',',','" ,!:/!; iu'iJ''
the proceeds of sales of real estate, except when authorized to make boud.&c.
such sales.
Sect. 14. When two or more persons are appointed executors, ijoudsof,may
administrators, or testamentary trustees, the probate court may take a J«;J""'t or sev-
separate bond witli sureties from each, or a joint bond with sureties k. s. 70, §2.
from all.
Sect. 15. When the sureties or the penal sum in any bond given when sureties
to the judge of a probate court are insufficient, the su]ireme judicial "ufflcfenPnew
court or the probate court, on the jietition of any person interested bond required,
and after notice to the principal in the bond, may require a new bond, i8ii,'3i. ''^'
with such surety or sureties, and in such penal sum, as the court shall 3 Cusii. 405.
direct.
Sect. 16. Any surety in a bond given to the judge of a probate Surety may be
court may, upon his petition to the sujireme judicial court or the ](ro- ou peiJn'mi,'&c.
bate court, 1)0 discharged from all further res]ionsibility, if the court, K.s.ro, §28.
after due notice to all persons interested, deems it reasonable and '•*>>•
proper ; and the principal shall thereu])i)n give a new bond, with such
sm-ety or sureties as the court shall order.
Sect. 17. If, in the cases specified in the two preceding sections. Principal to
the principal does not give such new bond within such time as is k.^s.'to"/?."
ordered by the court, he shall be removed from his trust, and some iws, so, §2
other j)erson a])]>ointed in his stead.
Sect. 18. When a new bond is required as above provided, the Prior sureties
sureties in the prior bond shall be liable for all breaches of the con- K^s'froJ'VJiof '^'
dition committed before the new bond is approved by the judge. isw, so, § 3.
Sect. 19. The bond given by executors or administrators for the wiien bond
discharge of their trust may be put in suit by any creditor of the "iltbyc'reditor.
deceased for his own benefit, when he has recovered judgment for his it. s. 70, §3.
• . J ~ Of) Pick 5-i
debt against the executors or administratore, and they have neglected 5, 1'lcic'ss.'
upon demand made by the creditor to pay the same, or show sufficient ', Jjj^ij's^'
goods or estate of the deceased to be taken on execution for that i Gray, 305.
jjuqjose.
Sect. 20. If tiie estate is insolvent, a suit on the bond may be . wUen estate is
brought by a creditor, when the amount due to him has been ascer- it.'s. 70, §4.
tained by the decree of distribution, if the executor or administrator
neglects to ])ay the same when demanded.
Sect. 21. A suit may be so brought by a person who is next of when for ben-
kin, to recover his share of the personal estate, after a decree of the kf,'."' "'^■''' °^
probate court ascertaining the amount due to him, if the executor or k. s. ro, §5.
administrator neglects to ])ay the same when demanded.
Sect. 22. When it apjiears to the proliate court, on the representa- orofanyoth-
tion of any person interested in an estate, that the executor or ailmin- "ted.^"" "^^"'
istrator has failed to jierfomi his duty in any particular not before k- s. ro, §6.
specified, the court may authorize any creditor, next of kin, legatee, or 95101^625. '
43 64
506
PROBATE BONDS.
[Chap. 101.
7 Cush. 4rO.
2 Gray,15i, 176.
How bond sued,
when judg^e is
obligfor.
18:38, 184, § 1.
Reo^ster m.iv
autnorize suit.
1838, 184, § 2.
Writ, how in-
dorsed, and who
liable for costs
of suit.
R. S. 70, § 7.
Process to
brinj; in priuci-
pal oblig:or.
R. S. 70, § 8.
Same subioct.
K. S. 70, « 0.
Proceedin;^s in
suit on bond.
Judfj^inont and
execution.
E. S. 7U, § 10.
8 Cush. aui.
for the benefit
of creditor.
of next of
kin.
for breach in
not accountiu'T.
for other
breacli.
for use of two
or more per-
sons.
for costs as
well as dam-
ages;
other person, aggrieved by such maladministration, to bring an action
on the bond.
Sect. 23. When the judge of a probate court is obHgor as principal
or surety in a bond given to a former judge of the court, any suit
autliorized by this chapter may be brought upon such bond in the
name of the judge mentioned therein, his executors or administrators.
Sect. 24. The register of tlie ])robate court for the county in which
sucli bond was given may authorize a suit thereon in like manner and
upon the same conditions as the court may in other cases.
Sect. 25. In all the preceding cases the writ shall be indorsed by
the persons for whose benefit or at who.se request the action is brought,
or by their attorney, and the indorsers shall be liable for the costs of
suit, and execution therefor shall be issued ag.-iinst them, and not
against the judge. When the action is brought for the benefit of any
persons as creditors or next of kin as before provided, there shall be a
further indorsement on the writ, specifying that it is brought for the
use or benefit of such creditors or next of kin.
Sect. 26. If the principal in such bond is resident within this state
at the commencement of the action, and is not made a defendant
therein, or is not served with process, the court may, at the request of
any of the sureties, continue or postpone the action so long .as may be
necessary to summon or bring in the principal as jJrovided in the follow-
ing section.
Sect. 27. The sureties may thereupon take out a writ, in sach form
as the court prescribes, to arrest the principal or to attach his goods or
estate, and summon him to appear and answer as defendant in the
original action. If, after being served with such process fourteen days
at loa.st before the time appointed for him to apjjear and answer to the
suit, he neglects so to do, and judgment is for tlie plaintiff, it sliall be
rendered against the principal obligor with the other defendants, in the
same manner as if he had been originally a party to the suit. Any
attachment or b.ail on sucli process shall be liable to respond to the judg-
ment in like manner as if made or taken in the original suit.
Sect. 28. Every suit on an administration bond shall be brought in
the supreme judicial couit held for the county in which tlie bond is
taken ; and when it appears that the condition of the boml has been
broken, the court u]ion a hearing in equity shall award execution in the
name of the jilaintiff as follows : —
First. If the action is brought for the benefit of a creditor, execution
shall be awarded for the use of the creditor, for the amount due to him
ujion tlie judgment that he has recovered, or upon the order of distribu-
tion in his favor:
Second. If for the benefit of a person who is next of kin, it shall be
awarded for the use of such ])erson, for the amount due to him according
to the decree of the prob.ate court:
Third. If for a breach of the condition in not accounting for the
estate as required in chajitcr ninety-eight, it shall be awarded without
expressing that it is for the use of any person :
Fourth. If for any other breach of the condition of the bond, it shall
be awarded without expressing that it is for the use of any p.articular
person, for the full value of all the estate of the deceased that has come
to the hands of the executor or administrator, and for which he shall
not satisfactorily account, and for all dam.ages occasioned by his neglect
or mnliulministratiou :
Fifth. If there are two or more persons for whose use execution is
to be .1 warded as provided in this section, a separate execution shall be
Lssued ibr the sum due to each of them:
Sixtli. The execution shall include the costs of suit, as well as debt
or damages ; an<l if there is more than one execution, the costs shall be
equally divided between them :
Chap. 101.] liability of heirs, &c., for debts op deceased. 507
Seveutli. The person for whose use the execution is expressed to be Execution, how
a\\'ariled, sliall be considered as tlie judgment creditor, and may cause '"^■'*''-'''-
it to be levied in his name and for liis benefit, as if the action had been
brought and the judgment recovered in his name.
Sect. 29. All money received on such execution (unless it is awarded jroncvs roociv-
for the use of a creditor or person next of kin as ])ro\ided in the fii-st and rtispo"(Mri')i''''"
second subdivisions of the preceding section) shall be paid to the co- u. s. ro, § n.
executor or co-administrator, if there is any, or to whomsoever is then
the rightful executor or administrator, and shall be assets in his hands,
to be administered according to law.
Sect. 30. If the executor or administrator commits a new breach of Scire facias to
the condition of the bond, or if a creditor, next of kin, legatee, or other datmSs."' '"
person interested in the estate, has a claim for further damages on K- s. ru, § 12.
account of any neglect or maladministration of the executor or admin-
istrator, a writ oi scire facias on the original judgment maybe sued out
in like manner as is provided for the commencement of the original
suit ; and the court shall thereupon i)roceed to award a new execution
iu like manner as might have been done in the original suit.
LIABILITY OF HEIRS, &C., FOR DEBTS OF DECEASED.
Sect. 31. After the settlement of an estate by an executor or admin- Estate of de-
istrator, and after the cx]>iration of the time limited for the commence- of 'hcfrs?&™'if-
mcnt of actions against him by the creditors of the deceased, tlie heirs, able for certain
next of kin, devisees, and legatees, of the deceased, shall be liable, in the k\s!70, §13.
manner provided in the following sections, for all debts which could not ^■^ ^i"^'*- ^^•
have been sued for against the executor or administrator, and for which
provision is not made in chapter ninety-seven.
Sect. 32. A creditor whose right of action accrues after the exjjira- Mode of pro-
tion of said time of Umitation, and whose claim has not been presented caBc!""'" ^"''^
to the probate court, or if presented has not been allowed as provided K.s. ro, §14.
in ehajiter ninety-seven, may l)y action commenced within one year next
after the time when such right of action accrues, recover the same
against the heirs and next of kin of the deceased, and the devisees and
legatees under his will; each one of whom shall be lial)le to the creditor
to an amount not exceeding the value of real or jiersonal estate that he
has received from the deceased. But if by the will of the deceased, any
part of his estate, or any one or more of the devisees or legatees, is made
exclusively liable for the debt in exoneration of the residue of the estate,
or the other devisees or legatees, such provisions of the will shall be
complied with ; and the persons and estate so exempted shall be liable
for only so much of the debt as cannot be recovered ti-om those who are
first chargeal)le therewith.
Sect. .33. If any heir, next of kin, devisee, or legatee, dies without Estcito of heir,
having paid his just proportion of such debt, his executors and admin- *p,;tii'." "^ " "^^
istrators shall he liable therefor as for his proper debt, to the extent to H- S- ro, § 15.
which he would have been liable if living.
Sect. 34. If in the case specified in the two preceding sections more wheutwoor
than one person is liable for the debt, the creditor may recover the same ™ertit(ir may
by a suit in equity in the supreme judicial court against all persons proceed iu equi-
so liable, or as many of them as are within reach of process. The court li.s. 70, §16.
shall determine, by" the verdict of a jury if either party requires it, what J^sr,; 3.S!^§ Vf'
sura is due to the ])laintift", and shall decide according to the course of m Mass. 430.
proceedings in equity, how much each one of the defendants is liable to i"Met.3S7."
pay towards the debt, and may award execution and other proper pro- i'-^ Met- ■«>5.
cess therefor.
Sect. 35, If any heir, devisee, or other person, who was originally case of insoi-
liable for the debt, "is insolvent, or unable to i)ay his jiroportion thereo"t; ;,™br devi"4.
or beyond reach of process, the others shall be liable to the creditor k. s. 70, § ir.
508
ESTATES OF INHABITANTS OF OTHER STATES. [ChAP. 101.
New defendants
may be sum-
moned in, and
amendments al-
lowed.
U. S. 70, § 18.
Heirs, &c., lia-
ble to contrib-
ute between
themselves.
K. S. 70, § 19.
for the whole amount of his tlclit : but no one shall be comjicllod to pay
more than the amount received by him from the estate of tlie deceased.
Sect. 36. Such suit .shall not be dismissed or barred for want of
including as defendants .all the jiersons who might have been so includ-
ed ; but in any stage of the cause the court may, upon such terms as
shall be deemed reasonable, award proper process to bring in other
parties, .and allow such amendments as may be necessary to charge them
as defendants.
Sect. 37. If in consequence of insolvency, absence, or any other
cause, anj' person liable for such debt foils to pay his just ])roportioii
thereof to the creditor, he shall be liable to indemnify all who by reason
of such faihive on his part ]iay more than their just pvo]iortion of the
debt. Such indemnity may be recovered at their election, by all of them
jointly or in separate actions by anyone or more of them for his or their
parts respectively.
Administration
of estate of for-
eigner, .S:c.
R. S. 70, §21.
1S!8, -Z.
1S4;!, 02.
9 Mass. 35,5.
11 Mass. L'lii
3 Met. lOil.
Settlement of
such estate.
K. S. 70, § 22.
if estate is in-
solvent.
K. S. 70, § 23.
3 Pick. 12S.
6 Pick. 481.
8 Pick. 475.
Same subject.
K. S. 70, §§-24,
25.
Same subject.
E. S. 70, 1 20.
ESTATES OF PERSONS NOT INHABITANTS OF THIS STATE.
Sect. 38. When administration is taken in this state on the estate
of any person who was an inhabitant of any other state or country, his
estate found here, after ]iayment of his debts, shall be disj>osed of ac-
cording to his last will, if he left any duly executed according to law;
otherwise his real estate shall descend according to the laws of this
state, and his personal estate shall be distributed and disposed of accord-
ing to the laws of the state or country of which he was an inhabitant.
Sect. 39. Ujion the settlement of such estate, and after the payment
of all debts for which the same is liable in this state, the residue of the
personal estate may be distril>uted and disposed of in manner aforesaid
by the probate court ; or in the discretion of the court it may be trans-
mitted to the executor or administrator, if there is any, in the st;ite or
country where the deceased had his domicil, to be disposed of according
to the laws thereof.
Sect. 40. If such person died insolvent, his estate found in this state
shall as far as practicable be so disposed of that all his creditors here
and elsewhere may receive each an equal share in proportion to their
res])ective debts.
Sect. 41. To this end, his estate shall not be transmitted to the for-
eign executor or administrator until all his creditors who are citizens of
this state have received the just ])roportion that would be due to them
if the whole estate of the deceased wherever found, that is a]i))licable
to the payment of common creditor.s, were divided among all the cred-
itors in jiroportion to their respective debts, without ]irefernng .any one
B]iecies of debt to another; in wdiich case no creditor who is not a citi-
zen of this state shall be paid out of the assets found here, until all
those who are citizens have received their just proportion as ))rovided
in the preceding section.
Sect. 42. If there is any residue after such payment to the citizens
of this state, it maybe paid to any other creditors who have duly proved
their debts here, in proi)ortion to the amount due to each of them, but
no one shall receive more than would be due to him if the whole estate
wei-e divided ratably among all the creditors as before provided. The
balance maybe transmitted to the foreign executor or administrator;
or if there is none, it shall, after the expiration of four years from the
appointment of the administrator, be distributed ratably among all creil-
itors, both citizens and others, who have proved their debts in this
state.
Chap. 102.] sales of lands by executors and administrators.
509
TITLE Y.
OF TITLE TO HEAL PROPERTY BY SPECIAL PROVISIONS OF
LAW.
Chapter 102. — Of the Sale of Lands by Executors, Administrators, and Guar-
dians.
Chapter 103. — Of taking Land to satisfy Executions for Debt.
Chapter 104. — Of Homesteads.
CHAPTER 102.
OF SALES OF LANDS BY EXECUTORS, ADMINISTRATORS, AND
GUARDIANS.
sales by executors and administrators.
Section
1. Real estate may be sold to pay debts, &c.
2. What courts may liceuee sale.
3. Petition for license, <Src.
4. Whole sold when partijil sale would injure
residue.
5. Probate court to certify facts.
6. Bond to be given in such case.
7. Case of devise for payment of debts, &c.
8. Notice of petition to be given to all inter-
ested.
9. Persons interested may give bond and pre-
vent sale.
10. Upon obtaining- license, executor or admin-
istrator may convey.
11. What lands may be sold.
12. Lands fraudulently conveyed, may be first
recovered by executor, &c.
13. Action therefor, how brought.
H. Oath to be taken by executor, &c., before
sale.
15. Notice of sale, how given.
16. Evidence thereof, how perpetuated.
17. Sale by public auction, &c.
18. Notice of adjournment, how given.
19. Real estate, when to be sold for payment of
legacies.
BY FOREIGN EXECUTORS, &C.
20. Foreign executor, &c., may be licensed to
sell real estjite.
21. to give bond, unless already bound.
22. to give further bond to account for sur-
plus, &c.
23. Oath, notice of sale, and perpetuating evi-
dence of notice.
BY GUARDIANS FOR PAYMENT OF DEBTS.
24. Real estate of ward may be sold by g\iar-
dian for payment of debts.
25. Whole sold when partial sale would injure
residue.
FOR MAINTENANCE AND INVESTMENT.
26. Real estate of wards may be sold for main-
tenance, &c.
27. License to be granted on petition of guar-
dian, and to specify purpose of sale.
43*
Section
2S. Guardian to give bond.
29. When sold for maintenance, proceeds, how
disposed of.
30. How when sold for investment.
31. Minor's real estate may be sold for invest-
ment on petition of, or by, any friend, ia
certain cases.
32. How proceeds of sale disposed of.
BY FOREIGN GUARDIANS.
33. Foreign guardian may be lieeused to pell
estate of ward.
34. LTpon license to sell for payment of debts,
guardiiiu to give bond, unless idrcady
bound.
35. To give further bond when he sells more
than necessary.
36. Upon license to sell for maintenance, &c.,
guardian to give additional lx>ud.
PROVISIONS COM5ION TO SALES BY GUAR-
DIANS.
37. What courts may license sales by g:uar-
dians.
38. When overseers of poor to assent.
30. Js'otice to be given to persons interested.
40. Who entitled to notice.
41. Oath by guardian, notice of sale, and per-
petuating evidence.
PROVISIONS COMJION TO SALES BY EXECU-
TORS, ADMINISTRATORS, AND GU.\RDIANS.
42. Proceedings by foreign executors, &c.,
where had.
43. License, how long in force.
44. Surplus of sales considered real estate.
45. When costs may be awarded.
46. Actions for lands sold by executor, admin-
istrator, or guardian, limited to five years,
unless, &c.
47. Requisites of valid sale, as against heir or
ward.
48. as against claimants adverse to heir or
ward.
49. Persons making sales may be examined
upon oath as to such sales. Liability for
misconduct, &c.
510
SALES OP LAND BY EXECUTORS AND ADMINISTRATORS. [ChAP. 102.
Real estate may
be soil! to pay
debts, kc.
R. s. n, § 1.
2 Pick. 5iir.
15 Pick. 4a:!.
2 Cush. IS4.
What courts
may license.
K. S. 71, § 2.
1K.1!), 190.
5 Pick. 140.
Petition for li-
cense, &c.
11. S. 71, § 3.
(i Mass. 149. ■
IS Pick. -i-i.
7 Met. 454.
8 Met. 5S.
5 Cush. 624.
Whole solrl,
wlien pai'tiui
sale would in-
jure residue.
K. .S. 71, §4.
13 Mass. 102.
15 5Ia88. 58.
H Gray, 535.
Probate court
to certify facts.
R. S. 7i;§5.
1S59, 190.
Bond to bo
2-iven.
R. S. 71, §6.
3 Oreenl. 282
:i'< Maine, 4s.
8 Pick. 520.
11 Met. 529.
11 Cush. IS.
Case of devise
for payment of
debts, &c.
K. S. 71, § 7.
6 Mass. 149.
Notice of peti-
tion to be given
■ to all interest-
ed.
R. S. 71, § S.
8 Met. 51, .355.
S Cush. 524.
Persons inter-
ested may give
bond an(l jire-
vent sale.
R. S. 71, § 9.
2 Gray, 100.
SALES BY EXECUTORS AND ADMINISTRATORS.
Section 1. When the personal estate of a deceased person is insuffi-
cient to pay his debts with the charges of administration, liis e.xeeutor
or administrator may sell his real estate for that jjurpose, upon obtain-
ing a license therefor and proceeding as herein provided.
Sect. 2. The license may be granted by the supreme judicial court
or superior court in any county, or by the probate court in which the
letters testamentary or of administration issued.
Sect. 3. To obtain such license, the e.xecutor or administrator shall
present to the court a petition, setting forth the amount of delits due
from the deceased as nearly as they can be ascertained, the nmount of
charges of administration, and the value of the personal estate in his
hands. If it is necessary to sell only part of the real estate, he may
also set forth the vahle, description, and condition, of the estate, or of
such part thereof as he ]iroposes to sell ; and the court may tlirect what
specific part shall be sold.
Sect. 4. If it is represented in the petition and appears to the court,
that it is necessary to sell some part of the real estate, and that by such
partial sale the residue of the estate or of some sjjecific part or piece
thereof would be greatly injured, the court may license a sale of the
whole of the estate, or of such part thereof as it deems necessary and
most for the interest of all concerned.
Sect. 5. The petition, when made to the supreme judicial court or
superior court in any county, shall be accompanied by a certificate from
the probate court of the county where the executor or administrator
was appointed, setting forth the amount of debts due from the de-
ceased so far as they are ascertained, and the value of his real and per-
sonal estate ; and when the petitioner prays for the sale of more than
is necessary for the payment of debts, the probate court shall further
certify whether it is necessary that the whole or a part of the estate
should be sold, and if part only, what j^art.
Sect. 6. When the executor or administrator is licensed to sell more
than is necessary for the payment of debts, he shall before the sale give
bond with sufficient surety or sureties to the judge of the probate
court for the county in which he was appointed, conditioned to account
for and dispose of according to law all proceeds of the sale remaining
after payment of the debts and charges.
Sect. 7. If there is in the last will of the deceased any disposition
of his estate for the payment of debts, or anj- provision which m.ay
require or induce the court to mar.shal the assets in any manner differ-
ent from that wliich the law would otherwise jireseribc, such devises
or parts of the will shall be set forth in the petition, and a copy of the
will shall be exhibited to the court.; and the assets shall be marshalled
accordingly, so far as can be done consistently with the rights of the
creditors.
Sect. 8. License shall not be granted until notice of the petition
and of the time and ]ilace appointed for hearing the same has been
served personally on all persons interested in the estate, at least four-
teen days before the time a])pointed for the hearing, or by jinblication
three weeks successively in such newspaper as the court shall order,
that they may ap])ear and show cause why the same should not be
granted ; but if all persons interested signify in writing their assent to
the sale, notice may be dispensed with.
Sect. 9. License shall not be granted if any of the persons inter-
ested in the estate give bond to the executor or administrator, in a sum
and with sureties approved by the court, with condition to pay all debts
mentioned in the petition that shall eventually be found due from the
estate, with the charges of administering the same, so far as the goods,
Chap. 102.] sales of land by executors and administrators. 511
chattels, rights, and credits, of the deceased shall be insuffioicnt
therefoi'.
Sect. 10. If the tacts set forth in the petition are proved, and no rpon obfainins
sufficient cause is shown to the contrary, the court shall grant the tur or mimiuis-
license; and the executor or administrator shall be thereupon author- ir^rTTm'^''
ized to execute conveyances which shall be effectual to pass to the jiur- s Grecni.'aao.
chaser all the estate, right, title, and interest, in the granted ]iremises,
which the deceased had therein at the time of his death, or which was
then chargeable with the payment of his debts.
Sect. 11. The real estate so liable to be sold shall include all wimt real cs-
lands of the deceased, and all rights of entry and of action, and all suM."'"^
other rights and interests in lands, which by law would descend to his jj,;jf- ,"(,'-' y/-
heirs, or which would have been liable to attachment or execution by i.v55'45:)I § i!
a creditor of the deceased in his lifetime. No claim to such lands by j] IHH] 'f^f
entry or action shall be made more than five years after the decease of s CukIi. s>4.
,, •' ^ See Cli. lo;), § 1.
the grantor.
Sect. 12. An executor or administrator, licensed to sell lands fraud- Lands fraurtu-
idently conveyed by the deceased, or fraiuhdcntly held by another per- m"y'bc"^rst^i^c^
son for him, or to which he had a right of entry or of action, or a right |;|;'_{'''|;''' ''>' '=■''"
to a conveyance, may first obtain possession thereof by entry or by h. s. 71' §'ia.
action, and may sell the same at anytime within one year after so !J;i,r,' j"M j"
obtaining possession. t- Jnt. .-,1.
Sect. 13. He may make a formal entry upon the premises and bring Aetion thcre-
the action on his own seisin acquired by such entry, demanding the land !,"',';u'",'J',
as executor or administrator. n- s. 71, § i.i.
Sect. 14. An executor or administrator licensed to sell real estate Oath to bo tak-
shall, before fixing on the time and jilace of sale, take and subscribe an ItJ-.f^n' s!ue!
oath in substance as follows : that in disposing of the estate which he it. s. 71, § 14.
is licensed to sell he will use his best judgment in fixing on the time and
place of sale, and will exert his utmost endeavors to dispose of the same
in such manner as will be most for the advantage of all persons inter-
ested tiierein.
Sect. 15. He shall give public notice of the time and place of such Notice of sale,
sale, by causing notifications thereof to be ]iosted, thirty days at least ij"s.°ri™i5-
before the sale, in some public place in tlie city or town where the de-
ceaseil last dwelt, and in two adjoining cities or towns, if there are so
many in the county, and also in the city or town where the lands lie ;
or by ])ul)lislung the same three weeks successively in a newspaper; as
the court granting the license may order.
Sect. 16. An affidavit of the executor or administrator, or person Evitienee tbere-
employcd by him to give such notice, being made and filed and re- u!;,',',™' '"'i"^'"
cordeii with a copy of the notice in the probate office within one year n.s. 71, §10.
after the sale, or at any time afterwards by pemiission of the court upon "^ ' '
petition of the executor or administrator and satisfactory evidence fur-
nished that the notice was given as ordered, shall be admitted as evi-
dence of the time, place, and manner, of giving the notice. And it shall
be the duty of the several registers to record such affidavits, filed as
provided in this section.
Sect. 17. The sale shall be made by public auction; and if at the Saie by public
time ap]winted therefor the executor or administrator deems it for the Jl'/'g'™'^*';'-
interest of all persons concerned therein that the sale be postponed, he 5 Creeni. 240.
may adjourn it for any time not exceeding fourteen days.
Sect. 18. Notice of such adjournment shall be given by a pidjlic Notice of ad-
declaration at the time and place first ap])ointed for the sale ; and if the J°"™""'"'' ''"'''
adjournment is for more than one day, further notice thereof shall be if. s. 71, § is.
given by posting or publishing, as time and circumstances may admit.
Sect. 19. When a testator has given a legacy, which with his debts Real estate,
and the charges of administration, his goods, chattels, rights, and cred- for™„'.n,enf of'
its, are insufficient to pay, the executor, or administrator with the will legaeiee.
512 SALES OF LAND BY FOREIGN EXECUTORS AND GUARDIANS. [ChaP. 102.
R. s. 71, §20. annexed, may be licensed to sell real estate for that purpose, in tlie same
7*0X1*101'.' manner and upon the same terms and conditions as are prescribed in the
case of a sale for the payment of debts.
BY FOREIGN EXECUTORS, &C.
Foreign exccii- Sect. 20. An executor or administrator appointed in another state
ifcentoii'to^seii'' Or in a foreign country on the estate of a person dying out of this state,
real estiito. upon wliose estate there is no e.xecutor or administrator appointed in
1859,' Hiii. this state, may file an authenticated copy of his appointment in the
3 Mass. 3H. pi'obate court for any county in which there is real estate of the de-
ceased ; after which he may be licensed by the same probate court, or
the su])reme judicial court or superior court in any county, to sell real
estate for tlie jjaynient of debts, legacies, and charges of administration,
in the same manner and upon the same terms and conditions as are pre-
scribed in the case of an executor or administrator appointed in this
state, except as hereinafter provided,
togivpbond, Sect. '21. When it appears to the court granting the license, that
bound." "^^''^ such foreign executor or administrator is bound with sufficient surety or
E. s. 71, §22. sureties, in the state or country in which he was a]i]Kiiiited, to account
for the jiroceeds of such sale, and a copy of such l)ond duly authenti-
cated is filed in the [irobate court where the copy of his ajijioinlment is
filed, no further bond for that purjiose shall be required of him here ;
otherwise, before making such sale he shall give bond, with sufficient
surety or sureties to the judge of the probate court for the same county,
with condition to account for and dispose of said proceeds in the pny-
mcnt of debts, legacies, and cliarges of administration, according to the
law of the state or country in which he was ap]iointed.
to "ivc fur- Sect. 22. When such foreign executor or administrator is licensed
couut"fi.'r's*?r-'^ to sell more than is necessary for the payment of debts, legacies, and
plus, &c. charges of administration, he shall before making the sale give bond
with sufficient surety or sureties to the judge of the jirobate court con-
ditioned to account before the same court tor all proceeds of the sale
remaining after payment of said debts, legacies, and charges, and to dis-
pose of the same according to law.
Oath, notice of Sect. 23. Every foreign executor or administrator licensed to sell
.l".!^,'.,*!!!',??.^" real estate shall, before fixinf; on the time and iihice of sale, be sworn
deuce of notice, and "Ive notice of the time and iilace of sale, and otherwise proceed as
is prescribed for an administrator appointed here wlien making such
sale ; and the evidence of such notice may be perpetuated in the same
manner.
K. S. 71, § 24.
BY GUAEDIAXS FOR THE PAYMENT OF DEBTS.
Real estate of Sect. 24. When the goods, chattels, rights, and credits, in the hands
6oid'by"niardi- ^f a guardian are insufficient to pay all the debts of the ward, with the
an, for jwyraeut charges of managing the estate, the guardian may be licensed to sell his
R. s°. 71,' § 20. re:il estate for that purpose, in like manner and upon like terms and
5 Pick. 4S3. conditions as are prescribed in this chapter in the case of a sale by ex-
ecutors or administrators, except as hereinafter jirovided.
wiioie sold, Sect. 25. If it is represented in the petition and appears necessary
eSe wmi'id'in- ^^ ^^'^ some part of the real estate of the ward, and that by such partial
jure residue^ sale the residue of the estate, or of some specific ]iicce or part thereof,
• ■ '''J-'- would be greatly injured, the court may license a sale of the whole of
the estate, or of such part thereof as it deems necessary and most for
the interest of all concerned ; the guardian giving bond to account for
the surplus of the proceeds of the sale in like manner as is prescribed in
this chapter in case of a like sale by an executor or administrator.
Chap. 102.] sales op land by guardians. 513
FOR MAINTEKASfCE AND INVESTMENT.
Sect. 26. When tlie income of the estate of a ward is insufficient to Real estate of
maintain him and his family, or when it appears that it wouhl be for the ^^{,1 for'nuun-
benefit of award that his real estate or any part thereof be sold and the t™aiice, &e.
proceeds put out on interest or invested in some productive stock, his ' ' "" '
guardian may sell the same accordingly, upon obtaining a license there-
for and proceeding therein as hereinalter provided.
Sect. "27. To obtain such license, the guardian shall present to the License to be
court a petition setting forth the condition of the estate and the facts fi^lJ'o'flS^^*'"
and circumstances on which the petition is founded. If afler a full ex- an.andtospeci-
amination, ou the oath of the petitioner or otherwise, it a])pears either sale."''"*'' "^
that it is necessary or that it would be for the benefit of the ward that K- s. 72, § 7.
the real estate or any part of it should be sold, the court may grant a
license therefor, specifying therein whether the sale is to be made for
the maintenance of the ward and his family, or that the proceeds may
be put out or invested as aforesaid.
Sect. 28. Guardians licensed to sell real estate for maintenance of a Guardian to
ward or investment, shall before the sale gi\e bond, with sufficient surety j^' J! "t^^s'io
or sureties to the judge of the probate court for the county in which ii Met. 529.
they are appointed, with condition to sell the same in the manner pre- *' Cusu. is.
scribed for sales of real estate by executoi-s and administrators, and to
account for and dispose of the proceeds in the manner jirovided by law.
Sect. 29. If the estate is sold for the maintenance of the ward and wiien sold for
his family, the guardian shall apply the ]iroeeeds so far as necessary to Iff""eedB"ho'w
that purpose, and shall put out the residue on interest, or invest it in iiisimscd of.
the best manner in his ])ower, until the cajiital is wanteil for such main- ' •'-■'■■
tenanee ; in which case the capital may be used for that purpose in like
manner as if it had been j^ersoual estate.
Sect. .30. If the estate is sold in order to put out and invest the pro- How, when sold
ceeds, the guardian shall make the investment according to his best {;"' ""j^s™™*"
judgment, or in pursuance of any order that may be made relating See cl. 109, §22.
thereto by the probate or supreme judicial couit, as provided in chapter
one hundred and nine.
Sect. 31. The estate of a minor may be sold for the puqiose of in- Minor's real es.
vesting the proceeds as provided in this chajjter, upon the petition and ivlr iiuSt'ment;''
representation of any friend of the minor; and in such case the court "" iHtiiion of,
may authorize the guardian or any other suitable person to convey the frklid' lacertain
estate. When a sale for such purpose is ordered on the iietition of the 'i'JJ*- ,„ , ,
T/.. 1 '■ ^ ,. .,1 1 1SJ8, lUO, § 1,
guardian of a minor, the court may authorize any suitable person other
than the guardian to sell and convey the estate. The ]>rovisions of this
chapter in relation to licenses and sales on the petitions of guardians,
except as provided in the following section, shall apply to licenses and
sales under this section.
Sect. 32. Upon a sale by a person other than the guardian, the pro- How proceeds
ceeds shall be forthwith paid to the guardian upon his giving bond, Jjf sale disposed
with sufficient sureties, to the judge of the probate court for the county !><:}«, loo, §2.
where the real estate is situate, conditioned to account therefor. If ^''' ^'
there is no guardian, the proceeds shall be j)ut out and invested by the
person authorized to sell the estate, iu like manner as is requii-ed of a
guardian.
BY FOREIGN GUARDIANS.
Sect. 33. \V hen a minor, insane person, or spendthrift, residing out Foreign gnar-
of this state, is under guardianship in the state or country in which he j!en"cd"to seif^
resides, and has no guardian appointed in this state, the foreign guar- ??•'!,•<' "•'y'ard.
dian may file an authenticated copy of his appointment in the probate k! s. 72rs.i4L
court for any county in which there is real estate of the ward ; after
which he may be licensed to sell the real estate of the ward in any
65
514
PROVISIONS COMMON TO SALES BY GUARDIANS. [ChAP. 102.
Guardian to
^ive bond, un-
less already
bound, upon li-
cense to sell for
payment of
debts.
E. S. -1, § 32.
to i^ve fur-
ther "bond when
he sells more
than necessary.
R.S. 71, §33.
to Jjive iiddi-
tioual bond
upon license to
sell for main-
tenance, &e.
K. S. 7-i, § ir.
11 Met. i-ii).
11 Cush. li.
county, in the same manner anrl n]ion the same terms and conditions as
are prescribed in this chapter in the case of a guardian appointed in
this state, except as hereinafter provided.
Sect. 34. When it appears to the probate court that a foreign guar-
dian, licensed to sell real estate for the payment of the debts of his
ward, is bound with sufficient surety or sureties, in the state or country
where he was appointed, to account for the proceeds of such sale, and
an authenticated copy of such bond is filed in said court, no further
bond shall be required ; otherwise he shall give bond in Uke manner as
is prescribed in this chapter in case of sales by foreign executors or
administrators.
Sect. 35. When such foreign guardian is licensed to sell more than
is necessary to pay debts and charges, he shall, before making the sale,
give bond with sufficient surety or sureties to the judge of the probate
court, conditioned to account before the same court for all proceeds of
the sale remaining after payment of said debts and charges, and to dis-
pose of the same according to law.
Sect. 36. Every foreign guardian licensed to sell real estate for the
maintenance of his ward or investment, shall before making the sale
give bond with sufficient surety or sureties to the judge of the probate
court, conditioned, in addition to the condition required in the bond of
other guardians in such case, that he will account for and dispose of the
proceeds or so much thereof as may remain upon the final settlement of
his accounts, to such persons, and in such proportions, as the real estate
would have descended or been disposed of according to the laws of this
state if it had not been sold.
What courts
may license
sales by ^'uar-
dians.
E. S. 71, §.■50.
E. S. 72, § (i.
When over-
seers of poor to
assent.
K. S. 71, §28.
K. S. 72, § y.
Notice to per-
sons interested.
E. S. 71,§§8,29.
R. S. 72. §8.
7 Met. 4.57,
SMct. 51, 355.
2 Gray, 100.
Who entitled to
notice.
E. S. 71, § 20.
Oath by sjuar-
dian, notice of
sale, and per-
petuatinij: evi-
dence.
E. S. 71,§35.
E. S. 72, §§ 11,
12, 15.
PROVISIONS C0M3I0N TO SALES BY GUARDIANS.
Sect. 37. The license to a guardian may be granted bj' the supreme
judicial court, or the superior court in any county, or by the probate
court for the county in which he is appointed. The application when
not made to the probate court shall be accompanied by a certificate of
that court as to the necessity or expediency of making the sale.
Sect. 38. No license shall be granted to a guardian except in case
of minors, unless the overseers of the poor of the place where the ward
is an inhaljitant or resides certify in writing their approbation thereof.
Sect. 39. No license shall be granted to a (ruardian until after no-
tice, b)' public advertisement or otherwise as the court shall order, to
the next of kin of the ward and all persons interested in the estate, to
appear and show cause why the same should not be granted ; but such
notice may be dispensed with if all persons interested signify in writing
their assent to the sale.
Sect. 40. All who are next of kin, and heirs apparent or presump-
tive, of the ward, shall be considered as interested in the estate, and
may appear as such, and answer to the petition of the guardian.
Sect. 41. Guardians appointed in this state or elsewhere, when
licensed to sell real estate, shall, before fixing on the time and place of
sale, take and subscribe the oath, give notice of the time and place of
sale, and otherwise proceed therein, as prescribed in like cases for exec-
utors and administrators; and the evidence of giving notice may be
perpetuated in the same manner.
PROVISIONS common TO SALES BY EXECUTORS, ADMINISTRATOES, AND
GUARDIANS.
Sect. 42. All proceedings in prob.ate courts respecting sales by a
iTad '"*''" "''"''"'^ foreign executor, administrator, or guardian, shall be had in the court
E. s. 71, f 25. for the county in which an authenticated copy of his appointment is first
Proceeding's by
foreign execu-
R .S. 72, § 1«.
filed.
Chap. 102.] provisions common to sales by executors, &c. 515
Sect. 4.3. No license sliall be in force for more th.an one year after i.iiimso, how
the granting thereof, except when a sale is made of land recovered by '/{."i.'n'Yig;
an executor or administrator as provided in sections twelve and thir- •*• s. r-i, § is.
teen. _ _ ■^Cush.i84.
Sect. 44. In all sales by executors, administrators, or guardians. Surplus of sales
appointed in this state or elsewhere, of part or the whole of the real estate!'^^'^""' ^'"^
estate of a deceased person or ward, the surplus of the proceeds remain- it- s. ri, §m.
ing on the final settlement of the accounts shall be considered as real .i Ma'ssrsis?' '
estate, and be disposed of to the s.ame persons and in the same propor- ^i^ick. 130.
tions as the real estate would descend or be disposed of by the laws of
this state if not sold.
Sect. 45. If a person appears and objects to the granting of a license when costs
to sell real estate, and it apjiears to the court that either the ]ietition or J^'j^'S' f'*' ""■'"'<'-
the objection thereto is unreasonable, they may award costs to the lu-e- f's. 71, §3n.
< -r ^ ' ./ J 1 li. S. -2, §18.
vaihng party.
Sect. 46. No action for the recovery of any estate sold by an exec- Actions for
utor or administrator under this chapter shall be maintained by any heir J.x'Jrat™''' d''
or other person claiming under the deceased, unless it is commenced niinistrat'or, or
within five years next alter the sale ; and no action for any estate so ftlld^'dflVi^'"'
sold by a guardian shall be maintained by the ward or by any person y^ars. unless,
claiming under him, unless commenced within five yeare next after the kVs. 71, 537.
termination of the guardianshi]> ; except that persons out of the state, "cush'^'ay''
and minors and others under legal dis.ability to sue at the time when
the right of action first accrues, may commence such action at any time
within five years after the remov.al of the disability or their return to
the state. No entry, unless by judgment of law, sliall be made ujjon
lands so sold, with a view to avoid the sale, unless within the times of
limitation before prescribed for the commencement of an action.
Sect. 47. No action relating to an estate sold under this chapter, in Requisites of
which an heir or other person claiming under the deceased, or in which I"',';'!?*'^,';™
- , ■,.. 11" 1 Hj^.iiiisi coil or
the ward or a person claiming under him, contests the validity of the «"'■<•.
sale, shall be avoided on account of the deed not having been executed u.' s.';a,'|L'o.'
and delivered within one year after the srrantiiifr of the license, nor on "*<»-""•
« • 1 •» ■ • ii "i- ' • 1 1 •. ~ Cooley, 506.
account ot any irregularity in the jiroeeet lings, ]irovided it ajijiears: — iiHck. ass.
First. That the executor, administrator, guanlian, or other person, -"^"sh. is4.
was licensed to make the sale by a court of competent jurisdiction :
Second. That he gave a bond which was aii])roved by the judge of
the ])robate court, in case a bond was required upon granting the
license :
Third. That he took the oath prescribed in this chapter :
Fourth. That he gave notice of the time and place of sale as pre-
scribed herein : and,
Fifth. That the premises were sold accordingly by public auction,
and are held by one who purchased them in good faith.
Sect. 48. If the validity of a sale is drawn in question by a person as against
claiming adversely to the title of the deceased or the ward, or claiming vc^'to^liefr or
under a title that is not derived from or through the deceased or ward, ward._
the sale shall not be void on account of any irregularity in the proceed- KisifaifM!
ings, if it appears that the executor, administrator, or guardian, was
licensed to make the sale by a court of competent jurisdirtion, and that
he accordingly executed and acknowledged in legal form a deed for the
conveyance of the premises.
Sect. 49. Every jierson authorized to make sale of lands under this Persons mnk-
chapter shall be required upon aj^jilication to the jirobate court by an b°°ex'ainined^
heir, creditor, ward, or other person, interested in the estate, to make upon oath as to
answer ujion oath to all matters touching his exorcise and fulfilment of awmrformki'
said license, including all proceedings under it from its first grant, as full}' <''"«'"rti *c.
as he is li.ible to account and be examined in reference to personal estate, r] s! 72J I21!
If, in relation to the exercise of such Ucense or a sale imder it, there is i»57,7i, §1.
516
TAKING LAND ON EXECUTION.
[Chap. 103.
any neglect or misconduct in tlie proceeilings of such person, by which a
person interested in the estate suffers damage, he may recover compen-
sation therefor on the probate bond or otherwise as the case may
require.
CHAPTER 103.
OF TAKING LAND TO SATISFY EXECUTIONS FOR DEBT.
^evy and set-off.
Sectiox
1. Lands and rights thereto may be taken on
execution.
2. Estates tiul may be taken, &c.
3. Land to be appraised, &c.
4. Appraisers to view land, certify, &c.
5. Land, how described in certificate, &c.
6. in separate pieces, how appraised.
7. Certificate by two appraisers, when suffi-
cient.
8. Estate to be valued as a fee simple, unless
otherwise expressed.
9. Execution, how levied on estate of joint
tenant or tenant in common.
10. how levied on estates incapable of divis-
ion.
11. on estates for life.
12. Proceeding's when levied on rents and
profits of estates for life.
13. Lessee to pay rent to creditor after notice.
M. When part is taken, rent apportioned.
15. Seisin to be delivered to creditor, or right
assigned to him.
16. llomentary seisin when debtor has right of
entry only.
17. Execution and return to be recorded in
registry of deeds.
18. Kecord of justice's execution, &c., prima
facie evidence of regularity.
19. Levy not recorded, how far effectual.
20. not returned, &c., valid against creditor,
except, &c.
21. If void, creditor may waive it if not re-
turned and recorded.
22. Alias execution on scire facias if levy not
effectual.
23. Proceedings. Costs.
24. Debtor to have notice. Levy to take effect
from seizure. Return, &c.
25. Matters to be contained in officer's return.
2(1. Debtor may redeem laud within one year.
27. Amount due for redemption may be ascer-
tained by three juBticPB of peace, and tender
made.
28. If land is not released to debtor, he may
recover it in writ of entry.
29. Debtor may bring suit in equity.
30. Proceedings in such suit,
31. Costs therein, how awarded.
32. Estate for life, how redeemed when levy is
on rents and prolits.
set-off, &c., of mortgaged lands.
Section
3:3. Right of redemption may be set off on exe-
cution.
34. When mortgage is not fully allowed for,
creditor to hold premises, &c.
35. When mortgaged estates set off may be re-
deemed.
36. 3Iortgage paid by creditor, how redeemed.
37. if not redeemed, creditor to hold prem-
ises.
38. If right levied on is not redeemed.
SALE, &0., OF MORTGAGED L.VNDS.
39. Right of redemption may be sold on execu-
tion.
40. Sale, how made.
41. Notice of time and place of sale, how given
and published.
42. Officer may adjourn sale.
43. Levy, when to take effect ; return may be
completed afterwards.
44. Mortgaged estates sold on execution may
be redeemed within one year.
45. Mortgage, if paid by purchaser, how re-
deemed by debtor.
40. Estate, if not released, may be recovered.
47. Right of redemption of laud in different
counties.
SPECIAL PROA-^lSIOXS.
48. If levy is on land the record title to which
is in name of other than debtor, &c., action
for possession to be brought, &c.
49. Fees and charges of levy to be added to
debt.
50. Proceedings by heirs, executors, adminis-
trators, &c., of debtor.
51. by heirs, &c., of creditor.
52. Right of redeeming land set off on execu-
tion, may be taken and sold on another exe-
cution. Proceedings.
53. Land of deceased persons may be taken ou
execution.
54. may be redeemed as if taken during life.
55. After redemption, not to be taken for other
debts.
50. Land may be taken on execution in favor
of executor, &c.
57. Dower in lands taken on execution.
OS. Executions in favor of state, how served.
50. Redemption of lands so taken.
LEVY AND SET-OFF.
Lands and
rights thereto
may be taken
on execution.
R. S. 73, § 1.
1844, 107, § 1.
Section 1. All the lands of the debtor in possession, remainder, or
reversion, all his rights of entry into lands and of redeeming mortgaged
lands, and all lands and riglUs above described fraudulently conveyed
by him with intent to defeat, delay, or defraud his creditors, or pur-
Chap. 103.] taking land on execution. 517
chased, or directly or indirectly paid for by liim, the record title to :s55, 453, §i.
which is retained in the vendor, or is con\eyed to a third i)erson with {ti^.t^Ks.
intent to defeat, del; v, or defraud the creditors of the debtor or on a i) '?''•■_-';•.
trust for him, express or implied, whereby he is entitled to a jiresent ~ '>.j •
eonveyance, may, except as jirovided in chapter one hundred and four,
be taken on execution for his deljts in the manner hereinafter provided.
Sect. 2. Estates tail which could be lawfully barred by the ])erson Estatis tail may
entitled thereto, may be taken on execution in the same manner as cs- i{. 's.'^;",'} a"'
tates in fee simple ; and whoever lawfully holds such premises under * Mass. 195.
the execution shall have an estate in fee simple therein.
Sect. 3. Upon the levy of an execution on the delator's land, the Land to be ap-
officer shall cause the estate to be appraised by three disinterested and i{™*''^3^3
discreet men, of whom otie shall be appointed by the creditor, one by isis, 317.
the debtor wliose land is taken, or, if the debtor is absent from or not l^i\ ',jn.
resident in the state, by his acrent or attorney- if he has any known to I G/*'''"'- !*•
the officer, and the third by the officer. If ihe debtor is absent from or g Mass! 11.3.
not resident in this state, and has no agent or attorney known to the /,[g"'"**' *'^'
officer, or neglects to ajipoint an appraiser, the officer shall aii]K)int one i; Jiass. 434.
for him. The persons thus appointed shall be sworn before a justice of if jjlit.'-lsf.' **^'
the peace or the officer, faithfully and impartially to ai)praise the real -'Cush. 32.
estate shown to them as taken on the execution.
Sect. 4. Tlie appraisers shall proceed with the officer to view the Appraisers to
land, and shall examine it so far as is necessary to form a just estimate tiCy^ &^'^' '^''
of its value : and a certificate of their appraisement shall be indorsed h. s. rs, §4.
. . 14 Alass '**!
on the execution and signed by them. 1; Pick. 3s5; 504.
Sect. 5. The land levied u])on, whether it is an entire piece or an Land, how de-
undivided part thereof, and wliether the debtor's estate therein is a fee ?|"ftcate, Scl""'
simple or any less estate, and whether it is in possession, reversion, or k. s. 73, §5.
remainder, shall be described by metes and bounds, or otherwise, with n mass. 1153.
as much precision as is necessary in a common conveyance of laud, and 4 jj^^ij?;
in such manner that the premises may be known and identified. Such
description may be contained in the certificate of the aj^praisers or
return of the officer, and in either of them may be referred to and
adopted in the other.
Sect. 6. If the execution is levied at the same time upon several in separate
pieces of land, each piece may be separately ap]iraised, or all may be pr^ged!""^' "''
appraised together. When several ])ieces are taken successively on the li. s. ?3,§(i.
same execution, a distinct set of ajijiraisers maybe ajiiwiuted for each n'Mass.'sis.
piece, or all may be a]ipraised by the a]i|)raisers first a]ipoiuted. - '"*''•'■ '^'^■
Sect. 7. The dissent of one .ajipraiser and his refusal to sign the certificate by
certificate of appraisement, if he was sworn and acted with the others, 'Xmi'sSS'.
shall not vitiate the lev)' of the execution ; but in such case the certifi- K- S- "■', §7.
cate of the other two shall be sufficient. H^Mass.'ns.
Sect. 8. In estimating the value of the estate of the debtor, the ap- 2 Pick. 331.
T_ 11 1 -. j_ ^ • ±' • \ • • 1 •*- • Estate to be val-
praisers shall value it as an estate m fee simple in possession, unless it is ued as a fee sim-
expressly stated in the description indorsed on the execution to be a pie, unless oth-
1 1. 1, li. Ill I* ii'K erwise express-
less estate ; and in every case all the freehold estate and interest wlucii ed.
the debtor has in the premises, shall be taken and pass by the levy, 54 |,j,8g; |^.
unless it is a larger estate than is mentioned in said description. 1 Met. 345.
Sect. 9. When land is held by a debtor in joint tenancy or in com- Execution, how
mon, the part or share thereof belonging to the debtor may be taken on J,'fjoi'Iit'"teuunt,*
execution and shall be thereafter held in common vnth the co-tenant, ortinnutin
If the whole share of the debtor is more than sufficient to satisfy the i{."s"r3,'§9.
execution, the levy shall be made uiion an undivided portion of that }); JJ"'*'*- ^t*-
',.'.,,, I . , '. , 13 Mass. 5/.
share, to be cleterminecl liy the appraisers and to contain ;is much as
they deem sufficient to satisfy the execution ; the portion thus taken
to be held in common with the debtor and the other co-tenant.
Sect. 10. When the premises levied uiion consist of a mill, mill- „I'"T„'r.i^l'"'
pnvilege, or other real estate, which cannot be divided without damage bie of division.
44
518
TAKING LAND ON EXECUTION.
[Chap. 103.
R. S. -3, § 10.
Execution, how
levied ou es-
tates for life.
K. S. 73, §11.
10 Mass. 200.
15 Mass. i39.
Proceedings,
when levied on
rents and prof-
its of estates for
life.
U. S. 73, § 12.
Lessee to pay
rent to creditor
after notice.
U. S. 73, § 13.
Wlien part is
taken, rent ap-
portioned.
K. S. 73, § 14.
17 Mass. 440.
Seisin to bo de-
livered to cred-
itor, or right as-
signed to Iiira.
K. S. 73, § 15.
14 Mass. 27.
Momentary
seisin, when
debtor has rit^ht
of entry only.
U. S. 73, § 16.
3 Mass. 538.
Execution and
return to be re-
corded in regis
try of deeds.
E. S. 73, £ 17.
1853, 260.
11 Mass. 207.
15 Mass. 200.
5 Kelt. 170.
Record of jus-
tice's execution,
&c., prima facie
evidence of reg-
ularity.
1853, 269, § 2.
Levy not re-
corded, how ef-
fectual.
to the wliole, niid ivhieh is more than sufficient to satisfy the execution,
the levy shall be made upon an undivided portion of the whole, to be
determined by the appraisers, and to contain as much as they deem
sufficient to satisfy the execution ; and the portion thus taken shall be
held in common with the debtor.
Sect. 11. When the execution is levied on an estate for life, the
value thereof may be estimated by the appraisers, and the same may be
taken and set off to the creditor at the appraised value, like other real
estate ; or the execution may be levied ou the rents and profits of the
premises, at the election of the creditor.
Sect. 12. In the latter case, the annual value of the rents and
profits shall be estimated by the ajjpraisers, and the premises shall be
set off to the creditor for such length of time as is sufficient to satisf}'
the execution at the rate of rents and profits as estimated by the
appi'aisers, if the life estate endures so long; computing interest on the
sum due ou the execution, and deducting the rents and profits as so
much paid from time to time as the rents and profits fall due. If the
life estate expires before the end of the term so fixed by the a])j)raisers,
the creditor m;iy have a new action on the judgmeut to recover the
sum then remaining due thereon.
Sect. IB. When the premises levieil upon are under lease to a
third person, and the reversion of the whole is taken on the execution,
the lessee shall be bound to pay to the creditor the rent accruing from
the time of the levy, except such part thereof as he has paid before
notice of the levy.
Sect. 14. When the premises are under lease as aforesaid, and the
reversion of a part of them only is taken, it shall be ascertained and
determined by the appraisers what portion of the whole annual rent
shall be jiaid to the creditor in consequence of the levy ; and the lessee
shall bo Ijound to pay the same accordingly.
Sect. 15. The officer who serves the execution shall deliver to the
creditor, or his attorney, seisin and jiossession of the ]iremiscs so taken,
so tar as the nature of the estate and the title of the debtor will admit;
but when the estate so taken consists of a remainder, reversion, or
right of redemption, the officer shall not oust the person who is law-
fully in jiossession of tlie laud, but shall only assign to the creditor the
right which the debtor had therein, and may make his return accord-
ingly.
Sect. 16. When the execution is levied on land of which any per-
son other than the debtor is actually seised, the officer .shall deliver to
the creditor or his attorney a momentary seisin and j)ossession of the
land, so far as to enable the creditor to maintain an action therefor
upon his own seisin ; but he shall not actually expel and keep out the
tenant then in possession, against his will.
Sect. 17. The officer shall return the execution, with a certificate
of his doings indorsed thereon, into the clerk's office, or court to which
the same is returnable, or, if a justice's execution, to the justice who
issued the same ; and shall also, within three months after the levy is
completed, cause the execution and return to be recorded in the regis-
try of deeds for the county or district in which the land lies ; the
ex'pense of which shall be added to the charge of levying the exe-
i^ution.
Sect. 18. Such record in the registry of deeds of an execution
issued by a justice of the peace or police court, and of the levy thereon,
shall be prima facie evidence of the regularity of the judgment and
prior proceedings in the case in which the execution issued.
Sect. 19. If the Icvj^ of an execution is not recorded in the regis-
try of deeds within three months as aforesaid, it .shall be void as
against a creditor who has attached the same premises, or taken them
Chap. 103.] taking land on execution. 519
on execution, without notice of such levy, and also as against any per- R. s. rs, § is.
son who has jiurchaseJ them in good faith and lor a valuable consid- 4 ji^J^*^; '^)''
eration, without such notice; but if the levy is recorded, although after J^j^''^''™'*'^-
the expiration of the three months, it shall be valid and effectual as 5 Pick! i?o."
against any conveyance, attachment, or levy made after such recording.
Sect. 20. The levy of the execution, although neither returned nor Levy not re-
recorded as aforesaid, shall be so for vahd and effectual as against the '."™,'''.!;,fiu5t
creditor, that he shall not be permitted to waive the levy and have a creditor, ex-
new execution of his judgment, except as is provided in the following ^fs. fsi^ 19.
section.
Sect. 21. If, before the execution is returned and recorded, it if void, cred-
appears that there is a defect or error in the proceedings that would ,"°[f°not re""*"
defeat and render void the levy, or that the estate levied u])on cannot turned and re-
for any reason be held tliereby, the creditor may waive the levy, and it u.'sfr:!, §20.
shall thereupon be null and void, and he may resort to any other rem- wiiet. sj.
edy for the satisfaction of his judgment.
Sect. 22. If, after the execution is returned or recorded, it appears if not effect-
to the cj'eilitor that the estate levied on, or any part thereof, cannot be m"!;-'havi''«}i«s
held thereby, the creditor may sue out of the clerk's office of the court execution on
fi-om which the execution issued a writ of sf(>e y«f/as to the debtor, li. s.rs, §21.
requiring him to appear and show cause why anotiier execution should l^'yi^^^'^^'
not be issued on the same iu<lgment, and the writ niav- be sued out i'j i'lc k. 433'.
though there is a subsequent judgment for a pai't thereof not satisfied ,., jj^,; J,5;
bj' the levy. If the debtor, atter being duly summoned, does not show 2 Gray, 326.
sufficient cause to the contrary, the levy of the former execution may
be set aside and another execution issued for the amount then due on
the original judgment, and not included m a subsequent judgment,
without interest or further costs.
Sect. 23. If it ap]iears at the hearing, that a part only of the estate rroceedings.
levied on is held thereliy, and the creditor desires it, a warrant may be *^'°s**-
issued to the officer who made the levy, or to the sheriff or his deputy,
requiring him to cause the part not held thereby to be appraised at a
sum which, if added to the value at the time it was taken, according
to the best judgment of the ajjpraisers, of the part held by the levy
sejjarate from the part not held thereby, would make the amount of
the former appraisement ; and the officer shall cause a]i])raisers to be
appointed, and such ap]iraisement made, as required on the levy of the
former execution ; and on return thereof, the levy may be set aside so
far as relates to the part not held thereby, and if duly recorded, be
A'alid as resjiects the remaining part ; and another execution may be
issued for the amount of the ap])raiseineiit returned by the officer, with-
out further interest or costs. If, in either case, it a])pears to the court
that the creditor had no just cause for such suit, the debtor shall
recover costs.
Sect. 24. The officer, after taking the land on execution, shall give Debtor to have
notice thereof to the debtor, if found within his precinct, allow him a tuke'^effccrtnim
reasonable time to appoint an ajipraiser, and then proceed without un- J^'™'"iLi "!*!""■
necessary delay to have the estate appraised and complete the levy c'creeni. w>.
thereon. The levy shall be considered as made at the time when the 3yjt*'|45^'
land is taken; and the subsequent proceedings and officer's return shall sjiet. snn. _
be valid, although made and done after the return day, or after the 'J ^i*^'- -3> ■''''■
removal or other disability of the officer.
Sect. 2.5. The officer in the return or certificate of his doings in- Officer's return,
dorse<l on the execution, shall set forth substantially the following facts of" "^'^ ''
and circumstances, to wit: — S,-?',"^;l^'
T-,. rJ^^ • i i . i • l8o2, 1, §3.
b irst. 1 he time when the premises were taken on execution : isaa, 250.
Second. That the ai)iiraisers were appointed bv himself and the cred- ^ •^'""J'' ^^-
> ** Alass l^^
itor and debtor; or that the debtor was absent from or not resident : jiass.' 74. '
in this state, and had no agent or attorney kuowu to the officer, or ^ c^gfj^iS' |j5-
10 Cush. 247.
520
TAKING LAND ON EXECUTION.
[Chap. 103.
11 Mass. aor,
513.
n Mass. .301.
2 Pick. 38a.
9 Mass. 92.
■> Pick. «3.
Mass. 284.
14 Mass. 143.
2 Pick. 331.
Debtor may re-
deem land with-
iu one vear.
K. S. -3, § 24.
2 Met. 510.
3 Met. 530.
Amount due for
redemption
may be ascer-
tained by tliree
justices of the
peace, and ten-
der made.
K. S. 73, § 25.
Iflandisnot re-
leased to debt-
or, he may re-
cover it in writ
of entry.
K. S. 73, § 26.
Debtor may
bring suit in
equity.
E. S. 73, § 27.
1856, 3S, § 2.
1859, 190.
Proceedings in
such suit.
K. S. 73, § 2,s.
1850, 38, § 2.
neglected to appoint an appraiser, and the officer appointed one for him,
as the case may be :
Tliird. That the apjiraisers were duly sworn, unless a certificate of the
oath is indorsed on the execution and signed by the justice or officer
who administered it :
Fourth. That they appraised and set off the premises at the price
specified :
Fifth. That the officer delivered seisin thereof to the creditor or
some person as his attorney, or assigned the same to him, as prescribed
in case of a remainder or incorporeal estate :
Sixth. The description of the premises ; unless they are sufficiently
described in the certificate of the appraisers, iu which case the officer
may refer to and adojjt that description : and
Seventh. If the apijraisement is signed by only two of the ap-
praisers, the return shall show that all tliree of them were present and
acted therein.
Sect. 26. When lands are taken and set off to a creditor on ex-
ecution, the debtor may redeem the same at any time within one year
alter the levy, by jiaying or tendering to the creilitor the sum for wliich
the ])remises were set oi% ^\ith interest thereon ti'om the time of the
levy, all sums paid for lawful taxes and assessments, such reasonable
exjjenses as have been incurred in repairing and im])roving the ]iremises,
and all sums lawfully [laid on account of any mortgage or other hen
recoverable under section thirty-four ; deducting from the amount of
the debt, interest, and expenses, the rents and profits received by the
creditor, or the rents and profits which he might have received, and
witli which he is justly chargeable. The creditor shall thereujion ex-
ecute, acknowledge, and deliver, to the debtor, a good and sufficient
deed of release of the estate taken on execution, which deed shall be
prepared by the debtor, or at his expense.
Sect. 27. The debtor may in all case.s, at his own expense, cause the
amount due for redemption to be ascertained by three justices of the
peace for the county where the land lies, in the manner following : one
of the justices shall be cho.sen by the debtor, one by the creditor, and
the third l)y the two first chosen ; or if the creditor neglects to choose
one, the justice chosen by the debtor shall appoint the other two.
After a hearing and examination of the case before the three justices,
they or any two of them shall make and sign a certificate of the sum
wliicji they adjudge to be due for the redem])tion of the premises, which
certificate shall be final and conclusive between the parties. The (lel)tor
may then make a tender of the sum so adjudged to be due, which shall
be valid and effectual notwithstanding he has made a previous tender
of a different sum.
Sect. '28. If the debtor tenders the sum justly due for redemption,
whether there has been such an adjudication by three justices or not,
and the creditor does not within seven days after the tender release the
premises as before provided, the debtor may recover them with costs of
suit, in a writ of entry on his own seisin against the creditor as a dis-
seisor; in which case lie .shall before the judgment is entered bring into
court for the use of the creditor the sum so tendered.
Sect. 29. The debtor within one year after the levy of the execu-
tion, whether he has made a previous tender or not, may, instead of a
writ of entry, l>ring a suit in equity for redemption in the county where
the land lies, either in the supreme judicial court, or superior court;
an<l it shall be conducted as provided in the two following sections.
Sect. 30. He shall in his bill or writ offer to pay such sum as shall
be found due for redemiition of the ju-emises, and may set forth any
tender he has made. The court shall ascertain and determine the
amount due, unless the same has been ah-eady ascertained by three
Chap. 103.] taking land on executiok. 521
justices of the peace as before jjrovided, and shall require the debtor,
within sucli time as they may order, to bring into court, or deposit with
the clerk for the use of the creditor, the amount due for redemption.
Upon the debtor's complying with the order, he shall be entitled
to judgment and execution for seisin of the premises, as at common law.
Sect. 31. The court may upon such suit award costs to either party Costs in suit in
as equity requires. But the creditor shall not be required to pay costs, ^[JJ{,^io°' Ji'ow
unless it appears that he has unreasonably neglected to render, when awarded,
requested, a just and true account of the amount due on the judgment, issf/a^'/a!*'
and of the money expended in repairing and improving the premises,
and also of the rents and profits thereof; or unless it appears that a
sufficient sum was tendered to him for the redemption of the premises,
and he neglected for seven days thereafter to execute and deliver a re-
lease thereof as before required. And if the creditor has, before the
commencement of the suit, tendered such a deed of release, and alleges
such tender and brings the deed into court to be delivered to the debtor,
he shall recover costs.
Sect. S'2. When an execution is levied on the rents and profits of Estate for ufo,
an estate for Life, the debtor may redeem the same at any time before lli"!|,7c'v'v^*OTi
the debt with interest thereon is fully satisfied, by paying or tendering ffcts and prof-
to the creditor the sum then remaining due to him; and the jirocced- k!s. 73, §30.
ings with regard to such redemption shall be in all otlier respects the
same as are prescribed for the redemption of other real estate.
SET-OFF, &C., OF MORTGAGED LANDS.
Sect. 3.3. When any rights mentioned in section one of redeeming Rigiit of re-
mortgaged lands, are taken and set off on execution, the appraisers shall S!^"'i',"o"f ""^
deduct the value of the encumbrance, or the amount of the mortgage k. s. ;3, §31.
debt, when known, from the estimated value of the premises, and the n'MasliSo!
sum so deducted shall be stated in the return of the execution. r,!''."^; ^.''''-
Sect. 34. If, after an execution is levied in the common form, there jo'cush. 52c.
proves to be a mortgage or any other lien on the jiremises, or a right or ^])'"'. """rt-
estate of homestead therein, not known, or allowed for, or not fully Ty aiiuwedfor,"
allowed for, by the appraisers, the creditor shall nevertheless be entitled prTmi^lg"^"^'^
to hold the premises, except the right or estate of homestead, by force it s. 73, §.32."
of the execution as against the debtor, and may recover, in a new " '^k-sw.
action against the debtor, the amount of the homestead right or estate
and the amount which he shall L'nrfuUy pay on account of such mort-
gage or other lien or so much thereof as has not been deducted and
allowed for in the estimate of the apjiraisers.
Sect. 35. An estate taken and set off as mentioned in the two pre- wiienmort-
ceding sections, mav be redeemed at anv time within one vcar after ="= !!i!f""l'
It /.I • - • 1 * Till *i IT 1 set off may be
the levy of the execution, m the same manner, and the debtor shall have redeemed,
the same remedies in that behalf, as provided in this chapter for the Jj^kkji^.'
redemption of lands not mortgaged.
Sect. 36. If the creditor pays the debt due on the mortgage, the Mortgagre paid
judgment debtor may redeem the mortgage fi-om the creditor, at the how'Tedwmed.
time and upon the terms prescribed for redeeming the same from the k. s. 73, §34.
- -1 - • 2"* Pick t90
mortgagee if no execution had been levied thereon. o'liet. uo.
Sect. 37. If the debtor does not redeem the mortgage from the ifnotrcdeem-
creditor as provided in the precedinsr section, the creditor shall hold the «Jr ii-<'iitor to
premises as an assignee of the mortgage and tree from any nght of re- k. s. ::i, §35.
demption, notwithstanding the debtor has redeemed or offered to redeem " ^^''*" '■'"■
the right that was taken under the execution.
Sect. 38. If the debtor does not within one year after the levy re- if rig-ht levied
deem the right that was taken on the execution, the creditor shall hold ™.em«i'* ^'^
the premises against the <lebtor, notwithstanding the debtor may have R. s. 73, §36.
redeemed or oflered to redeem the mortgage.
«• 66
522
TAKING LAND ON EXECUTION.
[ClIAP. 103.
Kight of re-
demption may
be sold ou exe-
cution.
11. s. r.i, ? sr
K. S. 97, § 32.
SCush. 141.
U Gray, 330.
Sale, how made.
K. S. r.l, §3S.
3 Met. 147.
10 Met. 81, 138.
2 Gray, 329
4 Gray, 408, 4S6.
Notice of time
and place of
sale, liow cfiveu
and published.
R. .S. 73, § 39.
7 Greonl. 37B.
12 Mass. 521.
1 Pick. 351.
Officers may
adjourn p;il'''.
K. S. 73, 5 40.
4 Pick. 354.
Levy when to
take effect , re-
turn may he
completed after-
wards.
U. S 73, §41.
2 Cash. 141.
Mortgn;^ed es-
tates sold on
execution may
be redeemed
within one year.
K. S 73, § 42.
1 Pick. 4H5.
2 Cush. 141.
Mortgage, if
paid by pur-
chaser, how
redeemed by
debtor.
K. S. 73, § 43.
Estate, if not
released, may
be recovered.
SALE, &C., OP MORTGAGED LAXDS.
Sect. 39. All rights of redeeming mortgaged land.s mentioned in
section one, may, if tbe creditor prefers it, be sold on the execution in
tlie manner hereinafter prescribed, instead of being ajjpraised and set
oif to the creditor ; and the surjjlus of the proceeds of the sale, after
satisfying the execution with the costs and charges, shall be applied and
dispo.sed of in like manner as is provided in the case of sale of goods on
execution by chapter one hundred and thirty-three.
Sect. 40. When the creditor elects to have the right of redemption
sold,, the officer authorized to serve the execution shall sell it by public
auction to the highest bidder, and shall execute, acknowledge, and de-
liver, to the purchaser, a sufficient deed thereof; which, being recorded
in the registry of deeds for the county or district where the land lies,
within three months after the sale, shall give to the purchaser all the
debtor's right of redemption.
Sect. 41. The officer shall give notice in writing of the time and
place of sale to the debtor, if found within his precinct, and shall also
cause notifications thereof to be posted up in some public place in the
city or town where the land lies, and also in two adjoining cities or
towns, if there be so many in the county ; all which notices shall be
given thirty days at least before the sale. The officer shall also cause
an advertisement of the time and place of sale to be published three
weeks successively before the sale, in some public newspaper printed in
the county where the land lies, if any such jjaper is there jtrinted.
Sect. 42. If at the time appointed for the sale the officer deems it
expedient and for the interest of all persons concerned therein to post-
]ione the sale, either foi' want of jturchasers or for other sufficient cause,
he may adjourn it for any time not exceeding seven days, and so fi'om
time to time for like good cause, until the sale is completed, giving
notice of every such adjournment by a jmlilic proclamation thereof at
the time and place previously a]ipointed for the sale.
Sect. 43. The levy shall be considered as made at the time of first
giving the notice, whether given to the debtor, or by posting up a noti-
fication thereof in any city or town, or by jntblishing the same as before
jjrescribed ; and shall hold the estate by force of the attachment made
tliereon, although the levy is not comjjleted within thirty days after the
judgment; and the subsequent proceedings and officer's return thereof
shall be valid, although made and done after the return day, or after
the removal or other disability of the officer.
Sect. 44. Rights of redemption taken and sold as before provided,
may be redeemed by the judgment debtor from the purchaser or the
])erson holding under him at any time within one year after such sale,
by ]iaying or tendering to the purchaser, or the person holding under
him, tiie sum for which the ])remises were sold, with the same allowance
for interest, repairs, improvements, and taxes, and the same deduction
for rents and [irofits, as are provided in case of the redem]ition of land
set off on execution ; and the ])urchaser or person holding under him
shall thereupon execute, acknowledge, and deliver, to the debtor, a suf-
ficient deed of release of the right of redeni]itiou so taken and sold;
such deed to be jjrepared by the debtor, or at his expense.
Sect. 45. If the purchaser pays the debt due on the mortgage, the
judgment debtor may redeem the mortgage, and also the estate or right
of reilemjition sold under the execution, in the same manner and upon
the same terms as are before prescribed for redemption from the judg-
ment creditor when the right is set off to him and the mortgage debt
paid by him, and not otherwise.
Sect. 46. If the jnirchaser, or the person holding under him, docs
not within seven days after a tender by the debtor release the right of
Chap. 103.] taking land on execution. 523
redemption ns before provided, or if there has been no tender, the debtor R. .s. r.i, § «.
niaj' have like remedies for recovering the right of redemption as are jcusii.' hi."
before ])rovided in like cases for the redemption of land that is not
under mortgage.
Sect. 47. Wlien the right of redemption is of lands in different coun- ni^^iit ofrc-
ties, the same may be taken and set off or sold on execution by an officer ill.l'fi'jli'.'ljtrerent
of either county; and for that purpose executions issued by justices of 'uuntks.
the peace and police courts may run into any county. '''' '' '^' '
SPECIAI, PROVISIONS.
Sect. 48. TVhen the execution is levied on lands or rights, the record if levy is on
title to which fraudulently stands in the name of a person other than tml\'owirMTh.
the debtor, in either manner mentioned in section one, and such other iiuiimiuutoiiier
person is in possession claiming title thereto, the levy shall be void A,'..iuti"ii lor
unless the judgment creditor to whom the land is set off or the ]iurchaser h'."j^,i;^,p™,'t .''ic
of the riglit of redemption, as the case may be, commences his suit to \t^-i. ;of, §i.
recover possession thereof, within one year afler the return of the '■^•'^> ^''•'■
execution.
Sect. 49. The la^-ful fees and charges of levying an execution in fws and
any of the modes before ju-ovided, shall in all cases be added to the {'.''Edued'to^
amount due on the execution and considered as part thereof, in the ',';*g ., ,,.
setting off and sale of estates on execution, and also in the rcdemp- '' ' " '
tion thereof, and in every thing relating to the proceedings under the
execution.
Sect. 50. Every thing required in this chapter to be done by a debtor Procwdinps by
in relation to the redemption of an estate taken and set off or sold on t'nrs ndmhiis-
execution, may be done by his heirs or assigns, or his executors or Jf/.j',"!,!'* ''''-•' "^
administrators, or by any person lawfully claiming under him or them, n. .s. 73,540.
in like manner and with like effect as if done by himself; except that in >'■' i"'*. «?.
case of a recovery of the premises by an executor or administrator, the
recovery shall operate only as a discharge of the lien or eneuinbiance on
the land, and the heir or other person entitled thereto shall be deemed
to be seised thereof accordingly.
Sect. 51. Every thing re(|uired in this chapter to be done by or to a by heirs, &c.,
creditor in relation to such redemption, shall and may be done by or to ^'.'i,"';""^';-.
his heirs or assigns, or his executors or a<lministrators, as the case may be,
or by or to any person la-wfully claiming under him or them, in like man-
ner and with like effect as if done by or to such creditor.
Sect. 52. All rights of redeeming land taken and set off on execu- Ri^jbtofre-
tion may be taken and sold on another execution, in like manner as the p,V;"l"'J;,J,''xeI.„.
right of redeeming mortgaged land may be taken and sold ; and the tii'i'. '"ny be
debtor and those claiming under IiItu may redeem the right sold under on linother "xe-
such second execution, in like manner as if it had been a right of |i""""p^j„<,g
redeeming mortgaged land. All proceedings in levying such second r. s. 73, § 4S.
execution, and the redemjition of the right sold under it, and .all the J'l-^J.fc'^'^jys*'^'
rights and obligations of the several parties in relation to such levy and
redemption, shall be substantially the same as if the property so taken
had Iieen a right of redeeming mortgaged land.
Sect. 53. The real estate of a deceased testator or intestate may be Lnnd of de-
taken on execution on a judgment recovered .against his executor or n^JIy'J.c'taken'
administrator for the proper debt of the deceased, Avdth costs of suit and ?.°™-o"\'49"
the fees and charges of levying the execution, and shall be appraised
and set offj or sold, in like manner as it might have been if the judgment
had been rendered and the execution issued and served .against the
testator or intestate in his lifetime.
Sect. 54. An estate taken as provided in the preceding section may may be ro-
be redeemed by the executor or administrator, or by the heir of the ken'durtaV ufe.
deceased, or by any person lawfully claiming under him or them, in like i'- S- 73, § 30.
524
HOMESTEADS.
[Chap. 104.
After I'pdemp-
tion, not to be
taken for other
debts of de-
ceased.
U. S. 73, §51.
;j Mass. 5-i'^.
Land may be
taken on execu-
tion in iavor of
executor, &c.
R. S. -3, § 53.
Dower in lands
taken on execu-
tion.
U. .S. r3, § 53.
Executions in
favor of st.ate,
liow served.
K. S. 73, § S5.
Redemption of
lands so taken.
K. S. ?3, §50.
mniinor ns if tlie estnte h.ad been taken on an execution again.st the
deceased in liis lifetime.
Sect. 55. If any real estate of a deceased person taken on execution
as provided in section tifty-three, is redeemed by his heir or devisee, or
by the assigns of either of them, as j)ro\'iiIed in the preceding section,
the same estate shall not be again taken on execution for any other
debts of the deceased, nor be in any way liable therefor.
Sect. 56. When an executor or administrator recovers judgment in
right of his testator or intestate, the execution may be levied on the
land of the delrtor; and in such case the executor or administrator shall
be seised of the estate set oif to him, upon the trusts in that behalf
expressed in chapter ninety-six.
Sect. 57. Every widow shall be entitled to her dower in lands taken
by execution from her husband, or by execution upon a judgment
against his executor or administrator, in like manner as if the same had
been conveyed by the liusband in his lifetime without release of dower
by her.
Sect. 58. When land is taken to satisfy an execution in favor of the
commonwealth, it shall not be a|ipraised ■■md set off, but shall be sold by
public auction in like manner as the riglit to redeem mortgaged lands
is sold ; and the officer who serves the execution shall proceed in all
respects in the manner prescribed for the sale of such right of re-
demption.
Sect. 59. All lands sold by force of the preceding section may be
redeemed within one year, in like manner and upon tiie same terms as
are prescribed in the case of a sale on execution of the right of redeem-
ing mortgaged lands.
CHAPTER 104,
OF HOMESTEADS.
Sectiov
1. Eptates of homesteadB, to value of $fiOO, ex-
empt from levy ou execution, sale, &c.
2. how acquired.
3. Rig^Iits of liomestead under former laws
saved.
4. Mortgaged property subject to rights of
homestead, except, &c.
5. Homestead property not exempt from levy
for taxes, grounil rent, &c.
6. Previous liens, Ac, not defeated.
7. Homestead and rights may be conveyed
and released.
8. Same subject.
Section
9. Partition of property subject to homestead.
10. Homestead estate may be set off in case of
insolvency of owner.
11. Blode of levying execution upon property
above value of $800 in wiiich homestead
exists.
12. Homestead to continue after death of
householder, for benefit of widow and mi-
nor children.
13. may be set off in same manner as dower.
14. Rights of widow and chil In-n may be sold.
15. Confirmation of conveyances under re-
pealed laws.
Estates of
homesti'jid to
value of $^ii(t
exempt (rom
levy on execu-
tion, sale, &.C.
1857, 298, § 1.
how acquired.
1857, 298, § 3.
Section 1. Every householder havinc^ a family shall be entitled to
nn estate of homestead, to the extent in value of eight hundretl dollars,
in the farm or lot of land and buildinii^s thereon owned, or rii;"htly pos-
sessed by lease or otherwise, and oceii])i(_'d by him as a residence, and
such homestead and all right and title therein shall be exem])t from
attachment, levy on execution, sale for the pajanent of his debts or
otlier purposes, and from the laws of conveyance, descent, and devise,
except as hereinafter provided.
Sect. 2. To constitute such estate of homestead and to entitle prop-
erty to such exemption, it shall be set forth in the deed of conveyance
Chap. 104.] homesteads. 525
by flliieh the property is aequirecl, that it is designecl to be held as a
homesteail ; or after tlie title has been acquired such ilesinn shall be de-
clared by writing duly signed, sealed, acknowledged, and recorded, in
the registry of deeds for the county or district where the ])roj)erty is sit-
uated. But the acquisition of a new estate of homestead in either of
said modes, shall operate to defeat and discharge anj- estate or right
of homestead previously existing.
Sect. 3. All existing estates or rights of homestead which have been Rifrhta of home-
acquired under any law heretofore in force, shall continue to be held ^eHi^s'saved
and enjoyed notwithstanding the repeal of such law; and the preceding isoi.sm.
section shall not require the design so to hold the same to be declared J^^rltusi §§i,
and reeoriled anew. But no person shall Jiold exempted as a home- '*•
stead, projjcrty to the value of more than eight hundred dollars.
Sect. 4. Propeil;}' wliich is subject to a mortgage executed before Jiortg-ngcd
an estate or right of homestead was acquired therein, or executed after- ],','i'Mo'^rig-h''t^"of
wards and containing a release thereof, shall be subject to any estate or iiomcstoad, ex-
right of homestead provided for in this chajiter, except against the '^'^^ '
mortgagee and those claiming under him, in the same manner as if the
property were unencumbered : provided, that when in such case a jiarty
becoming the owner of the residue above an estate of homestead and a
mortgagee, redeems the mortgage, he shall not be allowed to set uj) the
same against the owner of the estate of homestead, his widow, heirs, or
assigns, unless such owner of the estate of homestead, his widow, heirs,
or assigns, offer to redeem such residue in case of set-off or sale on
execution.
Sect. 5. No property shall by virtue of this chapter be exempt from iiomcstoad
levy for taxes, or for a debt contracted for the purchase thereof, or for exprnj^'i °om
a debt contracted before the deed or writing rcfjuired by section two is Uvy for taxes,
recorded, or before the rights of homestead mentioned in section three fh™2us,™4!
were acquired ; nor shall buildings on land not owned by the house-
holder be exem]jt fi-om sale or levy for the ground rent of the lot of
land whereon they stand.
Sect. 6. Such estates and rights of homestead shall not defeat or Previous liena,
otherwise affect any mortgage, or other encumbrance, or lien, ]n'eviously *|';' ""' ° °*'"
existing by virtue of any deed, attachment, policy of insurance, or isar, 298, §5.
otherwise.
Sect. 7. The property in which an estate or right of homestead Homestead and
exists may be conveyed or released by a deed duly acknowledgeil and cJf,vey"d'Ld"
recorded, in which the wife of the householder, or her guardian under a released.
license from the probate court if she is insane, joins for the purpose of ]o?''scc'ch.'9oJ
releasing the right of homestead, in the same manner as she may join l**;^^,''- '**>
in releasing dower.
Sect. 8. No conveyance of property in which an estate or risfht of Same subject,
homestead exists, and no release or waiver thereof, shall ojierate to con- g^ -''io_ jj. ' '
vey that ijart so held and exempted, or to defeat the ritiht of the owner ^ Gray, 3S3.
1 • ■£■ 11-11 i 1 1 i 1 ii ■ i 1 11 SeeCh. 90, §8.
or his wiie and clnldren to ha\e a homestead therein, exce]it by fleea
acknowledged and recorded, in which the wife of the owner, if lie has
any, joins for the purpose of releasing the same in the manner in which
she may release her dower, or unless the same i.s released as provided
in chapter one hundred and eight. But any deed duly executed with-
out such release, shall be valid to pass according to the terms of the
instrument any title or interest in the jiroperty beyond the estate or
right of homestead and the wife's right of dower.
Sect. 9. When an estate or right of homestead exists in property in Partition of
which other parties have an interest, the paity entitled to the home- |ert to'^ifom'?
stead, or any other party interested, may upon petition have partition stciid.
thereof like tenants in common. "
Sect. 10. When the property of a debtor is assigned under the laws Homestead es.
in relation to insolvent debtors, and such debtor claims, and it appears '"*'-' '"'^^ ^ ^^^
526
HOMESTEADS.
[Chap. 104.
off, ia case of
insolveucy of
owner.
185?, 298, § 16.
Mode of levy-
ing executiou
upon proiJ(.'rty
above value of
$SUO, iu uiiicli
homestead ex-
ists.
1837, 298, § 15.
1858, 62.
to the court wherein tlie proceedings in insolvency are pending, that he
is entitled to hold any part thereof as a homestead, and that the jirop-
erty in which such estate of homestead exists is of greater value than
eight Inindred dollars, the court shall cause the property to be ajipraised
by three impartial and discreet men, one of wliom shall be appointed
by the insolvent, one by the assignee, and the third by the court ; or in
case eitlier the assignee or insolvent neglects to appoint, the court sliall
appoint for him. The persons appointed shall be duly sworn faithfully
and impartially to appraise the jjrojserty, and shall proceed to a]ipraise
and set off an estate of homestead in the same to the insolvent debtor,
in the manner prescribed in the following section in case of a judgment
debtor; and the residue shall vest in and be disposed of by the assignee
in the same manner as property not exempt by law from levy on exe-
cution. The appraisers shall be entitled to the same fees, to be paid
out of the estate in insolvency, as are allowed to appraisers of real
estate seized upon execution.
Sect. 11. If a judgment creditor requires an execution to be levied
on ]3roperty claimed by the debtor to be exempt from levy as a home-
stead, and the officer holding such execution is of opinion that the
premises are of greater value than eight hundred dollars, ajijiraisers
shall be appointed to appraise the property in the manner provided by
law for the levy of executions on real estate. If in their judgment the
premises are of greater value than eight hundred dollars, they shall set
oft' to tlie judgment debtor so much of the premises, including the
dwelling-house in whole or in part, as shall appear to them to be of the
value of eight hundred dollars ; and the residue of the property shall
be levied upon and disposed of in like manner as real estate not exempt
from levy on execution : jwovidaf, that if the property is subject to a
mortgage, it may be set oif or sold subject to the mortgage and the
estate of homestead, iu like manner as land subject to mortgage.
Sect. 12. The estate or right of homestead of any householder,
existing at his death, shall continue for the benefit of his widow and
hoiicr"Vo""i)ou- minor children, and be held and enjoyed by them, if some one of them
ami miuor"chii- Occupies the ]>remises, until the youngest child is twenty-one years of
dreii. affc, and until the marriage or death of the widow, and shall ujion the
1857, 298, §2. ^^^.^<^]^ of such liouseholder be limited to that period. But all the riglit,
title, and interest of the deceased in the premises in which such estate
or right exists, except the estate of lioinestead thus continued, shall be
subject to the laws relating to devise, descent, dower, and sale for pay-
ment of debts against the estate of the deceased,
mny be set off Sect. 13. When a widow or minor children are entitled to an
estate or right of liomestead as provided in the preceding section, the
same may be set off" to the parties entitled thereto in the same manner
as dower may lie set oft' to a widow.
Sect. 14. Tlie widow, and the guardian of the minor children,
maTcBoiu'^™ when he has obtained a license therefor from the probate court as in
the case of sales of real estate of minors, may join in a sale of such
estate of homestead ; or, if there is no widow entitled to such rights
therein, the guardian upon such license may make sale thereof; and
the widow may • lake such sale if there are no minor children. The
purchaser shall liave the right to enjoy and possess the premises for the
full time tliat the widow and children or either of them might have
continued to hold and enjoy the same if no sale had been made. The
probate court may apportion the proceeds of the sale among the parties
entitled thereto.
Confirmation of Sect. 15. The Conveyances and titles Confirmed and established by
Snde7repea1od the seventh and thirteenth sections of chajiter two hundred and ninety-
eight of the acts of eighteen hundred and fifty-seven, shall not be
Homestead to
cou'iiune after
death of house
m same iiiauuer
as (iuwcr.
ISO?, 298, § 14.
Rights of wid-
impaired or afi"ected by the repeal of that act.
Chap. 105.] prevention of frauds and perjuries. 527
TITLE YI.
CHAPTER 105.
OF THE PREVENTION OF FRAUDS AND PERJXJRIES.
Section
1. No action to be brought on certain con-
tracts, unless in writing^.
2. Consideration need not be in writing-.
3. New promise by debtor disciinrg-ed in insol-
vency, &c., not binding unless in writing,
&c.
Section
4. No action on representation of another's
credit, .tc, unless in writing.
5. on contract for goods of value of $50,
unless, «tc.
6. Contracts for sale of certain stocks void,
unless vendor is owner, &c., at time of con-
tractiug.
s out ot his own estate : •; ^""^i- •'■''•
- __ - . , . /■ "* ^'ii^^t. 5^u.
id. lo charge a person upon a special promise to answer lor (i Met. ;iii». _
t, default, or misdoings of another: ^ Met! .34,' 5a!
Section 1. No action shall be broui^ht in any of the followinsj cases, Certain eon-
that is to say:- ^ ^ l^/i^""""
First. To charge an executor, administrator, or assignee under any K- ^- J*; § i-
insolvent law of this commonwealth, upon a special promise to answer ] Mcttra, iss,
damages out of his own estate : "J JJ*;!- 'S.-
Second,
the debt.
Third. Upon an agreement made ujion consideration of mai'riage : ii Mp'. 4ii.
Fourth. Upon a contract for the sale of lands, tenements, or here- icusn. rs.'
ditaments, or of any interest in or concerning them: or ^ r"''i''4^
Fifth. Upon an agreement that is not to be performed within one s CubIi. 223.
year from the making thereof : . 5 cniy' l]!^!''
Unless the promise, contract, or agreement, upon which such action is 4!i2.
, ,. ' ' 1 ^ .1 4- • ■ •.• 1-1 fi (iriiy, 32, 500.
brought, or some memorandum or note tlicreor, is ni writing and signed 7 Gray, 35.
by the ]iarty to he charged therewith, or by some person thereunto by
him lawfully authorized.
Sect. 2. The consideration of such jiromise, contract, or agreement. Consideration
need not be set forth or expressed in the writing signed by the party to ""V^^ '§"2°^
be charged therewith, but may be proved by any other legal cAidence. s (ranch, 142.
Sect. S. No jiromise for the payment of any debt made by an insol- 1? Mass.'ial!'
vent debtor who has obtained his discharge from said debt under pro- ]>(ow promise
ceedings in bankruptcy or insolvency, shall be evidence of a new or ch„r!!-eJi°[n'iQ.'
continuing contract, whereby to de]irive a ]iarty of the benefit of relying soivuney, &c.,
upon such discharge in bar of the recovery of a judgment upon such &,.."""" '°°'
debt, unless such promise is made by or contained in some writing '';?,''.' '^'J^''^-
signecl liy the ]iarty sought to be charged, or by some person thereunto
by him lawfully authorized : but this section shall not apply to such
promise made ju-ior to the fifteenth day of March in the year eighteen
hundred and fifty-six.
Sect. 4. No action shall be bi night to charge a person upon or liy No action on
reason of any representation or assurance made concerning the character, oi'an','JJl"J"'B""
conduct, credit, ability, trade, or dealings, of any other person, unless credit, &e., im-
such representation or assurance is made in writing and signed by the k^sI'h^^s."^'
party to be charged thereby, or by some person thereunto by him law- s Met. im.
fully authorized.
Sect. 5. No contract for the sale of goods, wares, or merchandise, on contract
for the price of fifty dollars or more, shall be good or valid, unless the v'tdm"of $5{f
purchaser accepts and receives part of the goods so sold, or gives some- "niess^, &c.
thing in earnest to bind the bargain, or in part payment; or unless some 2o'piVk*'9, m.
•528
MARRIAGE.
[Chap. 106.
21 Pick. 205,384,
1 Met. 283.
3 Met. 305, 480.
9 Met 177.
12 Met. 353.
Contracts for
sale or trausler
of certain
stoclcs void, un-
legs vendor is
owner, &c.
18.30, 279.
7 Gray, 100.
note or memorandum in writing of the bargain is made and signed by
the party to be cliarged thereby, or by some person thereunto" by him
hiwfuUy aiitliorized.
13 Mot. 453. 4C'ush. 4!ir. 9Cush. 110. 3 Gray, .331. 7 Gray, 057.
Sect. 6. Every contract, written or oral, for tlie sale or transfer of
a certificate or other c\ddence of debt due from the United States, or a
sepai'ate state, or of any stocks, or any share or interest in the stock of
a bank, company, city, or village, incorporated under a law of the United
States or an individual state, shall be void, unless the party contracting
to sell or transfer the same, is, at the time of making the contract, the
owner or assignee thereof, or authorized by the owner or assignee, or his
agent, to sell or transfer the certificate or other evidence of debt, share,
or interest, so contracted for.
TITLE yil.
OF THE DOMESTIC RELATIONS.
Chapter 106. — Of Marriage.
Chapter 107. — Of Divorce.
Chapter 108. — Of Certain Rights and Liabifities of Husband and Wife.
Chapter 109. — Of Guardians and Wards.
Chapter 110. — Of the Adoption of Children and Change of Names.
Chapter 111. — Of Masters, Ajiprentices, and Servants.
CHAPTER 106.
OF MARRIAGE.
Section
1, 2, 3. Marriage between certain rclationa
prohibited.
4. Polygamy forbidden.
5. Marriages of idiots, &c., void.
6. of persons marrying out of state to
evade, &c.
7. Intention of marriage to bo entered with
town elork, &c.
8. Certificate to be given to parties by clerk,
&c.
9. not to issue to eertaln minors except on
application of parents, &c.
10. Clerk may require affidavit of age.
11. Penalty for wilful deeoption.
12. Parties living in state and married out of it
to file certificate.
SECTtON
13. Minors not to be married without consent
of parents, &c.
H. Marriages, by wliom to be solemnized, and
in what place.
15. among Quakers.
16. Persons solemnizing marriages to keep rec-
ord and make returns.
17. Penalty for not m;iking returns.
18. on justice, &c., for niibuvfiiUy marrying.
19. on person not authorized to marry.
20. Certain marriages valid, though irregularly
solemnized.
21. Record of marriage, &c., to be presumptive
evidence thereof.
22. Admission of respondent, ifec.
23. Marriages by couhuI, &o., valid.
Marriage be- SECTION 1. N"o mat! shall inari'v Ihs mother, grainlmother, daughter,
tweeuS^rtiiin granddaughter, step-mother, sister," grandfather's wife, sou's wife, grand-
Chap. 106.] marriage. 529
son's wife, wife's mother, wife's grandmother, wife's dnnghter, wifes relations pro-
granddaughter, brother's daughter, sister's daughter, father's sister, or r'.''.".'"75, § i.
mother's sister. SeeCh.ies, §7.
Sect. 2. No woman shall marry her father, grandfather, son, grand- Same subject,
son, step-father, brother, grandmother's husband, daughter's husband, see^ch^'ill s 7
granddaughter's husband, husband's father, husband's grandi'ather,
husband's son, husband's grandson, brother's son, sister's son, father's
brother, or mother's brother.
Sect. .3. In all cases mentioned in the two preceding sections in Same subject,
whicli the relationship is founded on marriage, the prohibition shall con- 1*. s. 75, §3.
tinue notwithstanding the dissolution of such marriage by death or
divorce, unless the divorce is for a cause which shows the marriage to
have been originally unlawful or void.
Sect. 4. All marriages contracted while either of the parties has a Polygamy for-
former wife or husband living, except as is pro\^ded in chapter one hun- j; s™5 14
dred and seven, shall be void. iti»!,'s3.'
1 Pick. 13G. 8 Pick. 433. 4 Cush. 51. 8 Cusli. 380. ^'^^' '*-'''' 5 '•
Sect. 5. No insane person or idiot shall be capable of contracting MarnaOTs of
marriage. k.s.75,§5. 1843,5. ;;[;»•»-*'=•■
Sect. 6. When persons resident in this state, in order to evade the of persons
preceding provisions and with an intention of returning to reside in this marrying out of
state, go into another state or country and there have their marriage &c. '
solemnized, and aftei-wards return and reside here, the marriage shall be J',' fi"„^g' ^,5;
deemed void in this state. 1 Pick. 50a. '
Sect. 7. Persons intending to be joined in mnn-iage shall before intention of
their marriasre cause notice thereof to be entered in tlie office of the clerk °'","''"r?..j?i.'"'
O I llllU'tl Willi
or registrar of the city or town in which they respectively dwell, if within tmvn derk, &c.
the state. If there is no such clerk or registrar in the place of their jkjul rjll 1 1. ' "
residence, the entry shall be made in an adjoining city or town.
Sect. 8. The clerk or registrar shall deliver to tlie parties a certifi- Certificate to
cate under his hand, specifying the time when notice of the intention of Jlcfby clerk""'
maiTiage was entered with him, together with all facts in relation to the &c.
marriage required by law to be ascertained and recorded, excejit those jitw^ sckjI § 1*.
respecting the person by whom the marriage is to be solemnized. Such J,'^."j,;~''p-
certificate shall be delivered to the niiuister or magistrate in whose
presence the marriage is to be contracted, before he proceeds to solem-
nize the same.
Sect. 9. If a clerk or registrar issues such certificate to a male under not to issue to
the age of twenty-one years, or a female under the age of eighteen exw''"™"""
years, having reasonable cause to suppose the person to be under such plication of par-
age, except upon the application or consent in writing of the parent, isss.'sss, § 1.
master, or guardian, of such person, he shall forfeit a sum not exceeding
one hundred dollars ; but if there is no parent, master, or guardian, in
this state competent to act, a certificate may be issued without such
application or consent.
Sect. 10. The clerk or registrar may require of any person applying cierk mav re-
for such certificate, an affidavit sworn to before a justice of the peace for ^fL'^^e *"'
the county where tlie ajiplication is made, setting forth the age of the is53"335, §2.
]iarties ; which affidavit shall be sufficient proof of age to authorize the
issuing of the certificate.
Sect. 11. Whoever applying for such certificate wilfully makes a Penalty for wii-
false statement in relation to the age or residence, jiarent, master, or jgj/^l^'^''*'''"'
guardian, of either of the parties intending maiTiage, shall forfeit a sum
not exceeding two hundred dollars.
Sect. 12. When a marriage is solemnized in another state between Parties living
parties living in this state, and they return to dwell here, they shall man"'';i out of
within seven days after their return file with the clerk or registrar of tlie it to file certia-
city or town where either of thetn lived at the time, a certificate or Jl'^'^ 535.
declaration of their marriage, including the facts concerning mar- J^^o, i2i,§3.
ft-r 066 Cfll. lilt
io 0/
530
MARRIAGE.
[Chap. 106.
Minors not
to be married
without con-
sent of parents,
&c.
R. S. 75, § 15.
1 Gray, 119.
7 Gray, 483.
Marriages, by
whom to be
solemnizt'ii,and
in what place.
K. S. 76, 5 16.
among: Qua-
kers.
R. S. 75, § 22.
Persons solem-
nizin"^ mar-
riages to keep
record and
make returns.
R. S. 75, § 17.
1844, 15«, § 3.
See Ch. 21.
Penalty for not
makinj^ returns.
R. S. 75, § 18.
1844, 159, § 3.
on justice,
&c., for unlaw-
fully marrying.
R. S. 75, § 19.
1 Gray, 119.
7 Gray, 483.
on person not
authorized to
marry.
R. S. 75, § 20.
13 Pick. 111.
Certain mar-
riages valid,
though irreg-
ularly solem-
nized.
R. S. 75, § 24.
6 Greenl. 148.
7 Mass. 48.
1 Pick. 235.
Record of mar-
riage, &c., to be
presumptive
evidence there-
of.
R. S. 75, § 25.
Admission of
respondent, &c.
1840,84.
IMl, 20.
12 Met. 3r,l.
13 Met. 144.
1 Cush. .191.
5 Gray, 95.
riages required by law, and for every neglect thoy shall forfeit ten
dollars.
Sect. 13. No magistrate or minister shall solemnize a marriage, hav-
ing reasonable cause to suppose either of the parties to be under tlie age
mentioned in section nine, without the consent of the parent or guardian
having the custody of the minor, Lf there is any in the state compe-
tent to act.
Sect. 14. Marriages may be solemnized by a justice of the peace in
the county for which he is appointed, when either of the parties resides
in the same county; and throughout the state by any minister of the
gospel ordained according to the usage of his denomination, who resides
within the state and continues to perfonn the functions of his office ; but
all marriages shall be solemnized in the city or town in which the per-
son solemnizing them resides, or in which one or both of the jiersons
to be married reside.
Sect. 15. Marriages among the people called Friends or Quakers
may be solemnized in the manner heretofore used and practised in their
societies.
Sect. 16. Every justice of the peace, minister, and clerk, or keeper
of the records of the meeting wherein any marriages among the Friends
or Quakers are solemnized, shall make a record of each marriage sol-
emnized before him, together with all facts relating to the marriage
required by law to be recorded. He shall also between the first and
tenth days of each month return a copy of the record for the month
next preceding, to the clerk or registrar of the city or town in which
the marriage was solemnized, and shall, when neither of the parties to a
marriage resides in the city or town in which the marriage is solemnized,
return a copy of the record of such marriage to the clerk or registrar of
the city or town in which one or both of said parties reside. All mar-
riages so returned shall be recorded by the clerk or registrar.
Sect. 17. Every person neglecting to make the returns required by
the preceding section sliall forfeit for each neglect not less than twenty
nor more than one hundred dollars.
Sect. 18. A justice of the peace or minister who joins persons in
marriage contrary to the provisions of tliis chapter, knowing that the
marriage is not duly authorized, shall forfeit not less than fifty nor more
than one hundred dollars.
Sect. 19. Whoever undertakes to join persons in marriage knowing
that he is not authorized so to do, shall be imprisoned in the jail or con-
fined to hard labor for a term not exceeding six montlis, or pay a fine
of not less than fitly nor more than two hundred dollars.
Sect. 20. No marriage solemnized before a person professing to be
a justice of the peace or minister of the gospel, shall be deemed or ad-
judged to be void, nor shall the validity thereof be in any way affected,
by want of jurisdiction or authority in such person, or by an omission
or informality in the manner of entering the intention of marriage, if
the marriage is in other respects lawful, and is consummated witli a full
belief on the part of the persons so married, or either of them, that they
have been lawfully joined in marriage.
Sect. 21. The record of a marriage, made and kept as prescribed
by law by the person before whom the marriage is solemnized, or by the
clerk or registrar of any city or town, or a copy of such record duly
certified, shall be received in all courts and places as presumptive evi-
dence of such marriage.
Sect. 22. When the fact of mamage is required or offered to be
proved before any court, evidence of the admission of such fact by the
party against whom the process is instituted, or of general rejiute, or of
cohabitation as married persons, or any other circumstantial or presump-
tive evidence from which the fact may be inferred, shall be competent.
Chap. 107.]
DIVORCE.
531
Sect. 23. Marriages solemnized in a foreign country by a consul or Marriages by
diplomatic agent of the United St.ates, shall be valid in this state ; and y^df*' ^''''
a copy of the record or a certificate from such consul or agent shall be
presumptive evidence of such marriage.
CHAPTER 107.
OF DIVORCE.
Section
1. Certain marriages void without decree.
2. Validity of marriage not to be tried upon
collateral issue, &c.
3. Marriag:e of parties under ag-e of consent,
when void, &c.
4. Certain raarriag^es may be declared void by
decree of nullity.
5. Marriage may be declared valid by decree.
6. Divorce from bond of matrimony, for what
causes decreed.
7. may be decreed for desertion.
8. Libel not defeated by temporary return,
Ac.
9. Divorce from bed and board, for what
causes.
from bond of matrimony, may be decreed
in certain cases after divorce from bed and
board.
when Ubellant has resided In state five
years.
not decreed unless parties have lived to-
g-ether in state, &c.
13, 14. Libels for divorce, in what courts to be
brought.
15. Either party may have trial by jury.
16. Libel, how to be signed.
17. 18, 19. how to be filed and notice served.
20. Court may order further notice.
21. Guardian for insane respondent.
22. Allowance to wife, and alimony pending
suit.
23. Woman divorced, allowed to resume former
name.
24. Penalty for cohabiting after divorce.
25. Innocent party may marry again, &c.
26. Party residing in this state, divorced except
for adultery, may be authorized to marry
again.
Issue of marriage in case of divorce for
adultery of wife.
of marriage prohibited.
10.
11.
12.
27.
28.
Section
29. Issue of marriage dissolved for insanity*
Ac.
30. of marriage dissolved on account of prior
marriage.
31. Wife protected during pendency of libeL
32. Custody of children pending libel.
33. after divorce.
34. of minor children of parents divorced in
another state, &c.
35. Infant children of divorced persons, natives
of this state, not to be removed therefrom,
except, &c.
36. Children of parents living separately.
37. Rules as to custody of children.
38. In what cases wife entitled to dower.
39. Upon divorce for adultery of wife, husband
to hold her estate, &c.
40. Upon divorce except for adultery of wife,
she shall hold her real estate, &c.
41. Court may appoint trustee of property
awarded to wife.
42. Husband may be examined on oath as to
personal estate of wife.
43. In certain cases wife may be allowed ali-
mony upon decree of divorce, Ac.
44. Alimony, &c., in certain cases.
45. court may in equity enforce decrees of,
46. Security for payment of alimony.
47. Decree respecting alimony, &c., may be re-
vised and altered.
48. may be made or revised at any time after
decree of divorce.
49. Costs on petitions, &c.
50. On certain libels for divorce, husband's
property may be attached.
51. Attachment may be made on summons or
order of notice in certain cases, &c.
52. Laws relating to attachments to apply.
53. Course of proceedings in suits under this
chapter.
54. 65. Divorces obtained out of this state.
Section 1. All marriages solemnized within this state, which are
prohibited by law on account of consanguinity or affinity between the
parties, or on account of either of them having a former wife or hus-
band then living, or when either party was insane or an idiot, shall be
void without any decree of divorce or other legal process.
Sect. 2. The vaUdity of a marriage shall not be questioned in the
trial of a collateral issue, on account of the insanity or idiocy of either
party, but only in a process duly instituted in the lifetime of both
parties for determining such validity.
Sect. 3. If the parties to a marriage solemnized when either of them
was under the age of consent, separate during such nonage, and do not
Certain mar-
riages void
without decree.
R. S. 76, $ 1.
1843, 5.
12 Mass. 363.
Validity of mar-
riage not to be
tried upon col-
lateral issue,
Ac.
I&i5, 222.
Marriage of
parties under
532
DIVORCE.
[Chap. 107.
age of consent,
when void, &c.
E. S. 7% § 3.
CertlUL mar-
riages may be
declared void
by decree of
nullity.
R. S. rfi, § 3.
IStfi, 1117.
1855, 2r.
Marria^re may
be declared
valid b-r decree.
K. S. ro, § i.
Divorce from
bond ofraatri-
monj, for w hat
causes decreed.
K. S. 71-,, § 5.
1830, 100, § 1.
may be de-
creed" for deser-
tion.
1857, 238, § 2.
3 Met. 357.
5 Met. 2:!:).
4 Cush. 51.
7 Gray, 279.
See § +4.
Libel not de-
feated Iv.' tem-
porar:" return,
&c.
1855, !:,:,§ 8.
Divor " "rom
bed R - 1 board,
for wii it causes.
K. S. :■■■., § fl.
2 Mass. 150.
from bond of
m,ltrimony,
may be decreed
in certain cases
after divorce
from bed a'ld
board.
1857, 238, § 1.
See § M.
when libellant
has resided ia
st.atc live years.
l.*4:t. 77.
14 I'ici. 181.
5 Mt. 333.
not decreed
unless parties
have lived to-
gether in state,
dec.
afterwards cohabit, the mai-ri.ige shall be void without a decree of di-
vorce or other legal process.
Sect. 4. When a marriage is supposed to be void, or the validity
thereof is doubted, for fraud or other cause, either party niay file a libel
for anniilhng the same, in the manner hereinafter prescribed in the case
of a libel for divorce. Upon proof of tlie fraud or other cause of nullity,
the marriage shall be declared void by a sentence of divorce or nullity,
notwithstanding such marriage was solemnized out of this state, if the
libellant had his domieil here when the marriage was so solemnized and
when the libel was tiled.
Sect. 5. When the validity of a marriage is denied or doubted by
either [party,] the other party may file a libel in manner aforesaid for
affirming the marriage, and upon due proof of its validity, it shall be
affirmed and declared valid by a decree of the court ; and such decree
shall be conclusive upon all persons concerned.
Sect. 6. A divorce from the bond of matrimony may be decreed for
adultery or impotency of either party ; or when either party has sep-
arated from the other without his or her consent and united with a
religious sect or society that professes to believe the relation of husband
and wife void or unlawful, and has continued united with such sect or
society for three years, refusing during that tenii to cohabit with the
party who has not united with such sect or society ; or when either
party is sentenced to confinement to hard labor in the state prison, or
in any jail or house of correction, for the term of life, or for five years
or more; and no pardon granted after a divorce for that cause to the
party so sentenced shall restore such party to his or her conjugal rigiits.
Sect. 7. A divorce from the bond of matrimony may be decreed in
favor of either party when one i)arty has deserted the other for rive
years consecutively : provided, that when the libel is filed by the party
deserting, it appears that the desertion was caused by extreme cruelty
of the other party, or that the desertion by the wife was caused by the
gross or wanton and cruel neglect of the husband to jtrovide suitable
maintenance for her, he being of sufficient ability so to do.
Sect. 8. No Ubel brought under the preceding section shall be de-
feated by a temporary return or other act done by the party deserting,
with the intent to defeat the ojieration of said section, if it appears that
such return or other act was not made or done in good faith.
Sect. 9. A divorce from bed and board may be decreed for extreme
cruelty, utter desertion, gross and confirmed habits of into.vication con-
tracted after marriage, or cruel and abusive treatment by either of the
parties ; and on the libel of the wife, when the husband, being of sufli-
cient ability, grossly or wantonly and cruelly refuses or neglects to pro-
vide suitable maintenance for her.
Sect. 10. When a divorce from bed and board has been decreed for
any cause mentioned in the preceding section, and the parties have
Uved separately for five consecutive years next after the decree, a divorce
from the bonds of matrimony may be decreed upon the jietition of the
party in whose favor the decree was granted ; or after the parties have
lived separately for ten consecutive years, a divorce from the bond of
matrimony may be decreed in fivor of either party.
Sect. 11. When tlie libellant has resided in this state five consecu-
tive yeare next preceding the time of filing the hbel, a divorce may be
decreed for any cause allowed by law, whether it occun-ed in this
commonwealth or elsewhere ; unless it appears that the libellant has
removed into this state for the puqjose of procuring a divorce.
Sect. 12. Except as aforesaid, no divorce shall be decreed for any
cause, if the parties have never lived together as husband and wife in
this state ; nor for any cause occurring in any other state or country,
unless before such cause occurred the parties had lived together as
Chap. 107.] divorce. 533
husband and wife in this state, and one of them lived in this state R. S. 76, §§9,10,
when the cause tx-ourred. J'jjj,, .^^
Sect. 13. Libels fur divorce shall be heard and determined in the ums for di-
snprenie judicial court held for the countv in which, or for two or more ^o™, in what
• • • 1 ('I'll ' .1 ,' TtTi courts to be
counties m either 01 whicli, tlie parties or one 01 tliein live. When brought,
heard before a single judge, cither party may take exce])tions iu the same Isif'H'.'lJ.'
manner and witli tlie same effect as in suits at common law.
Sect. 14. Wlien the libellant has left the county in which the par- Same subject,
ties have lived together, the adverse party still living therein, the Ubel ^-S-^eiSs.
shall be heard and determined in the court held for that county.
Sect. 15. Either party to a libel for divorce, at any time before the Either party
trial is commenced, and if at a jury term, before the jurors are dis- "J'Lry ™ *"**
missed, may make and file with the clerk of the court a demand in iso5, so, §§ a, 3,
writing for a trial by jury ; and the questions of fact arising upon such lis?, 255.
libel, shall be so tried under the direction of the court. In such ease
the proceedings shall be conducted as nearly as may be in the manner
of conducting suits at common law ; and a decree may be entered in
conformity with the verdict.
Sect. IG. Every libel shall be signed by the libellant, if of sound i.ibci.howto
mind and of legal age to consent to marriage ; otherwise it may be ^ s."""? 12
signed by his or her guardian, or by any person admitted by the court to * Mass. W
prosecute the same as next friend of the libellant. 13 Mass. 412.
Sect. 17. When the ]iarty complained of is within the state, the ' **'^'- ^^- <
libel may be filed in the office of the clerk of the court in vacation, and a ied,^nd notice
a summons to ainiear and answer thereto issued bv the clerk and served.
K s ""!) fin
ser\^ed on the adverse party fourteen days at least before the sitting of ' " ' ' ' •
the court.
Sect. 18. The service shall be made bv delivering to the adverse Same subject,
party an attested copy of the libel and summons, or by leaving such r i^iaVs.wi
co])y at the place of his or her abode ; but the service by leaving a copy •* Mass. 3s3.
at the place of abode shall not be deemed sufficient, if it appears that
the party had not been there after the same was left, unless it also
apjH'ars that such ]iarty had ]>ersonal notice of the suit.
Sect. 19. The libel, whether the adverse partv is within or without Same subject,
the state, may be ])resented to the supreme judicial court in any county; ](i ' ^' '
and the adverse party shall be summoned to appear and answer at the 12 Mass. sw.
court having jurisdiction of the cause, either by a publication of the
libel or the substance thereof with the order of the court thereon
in one or more newspapers to be designated in the order, or by de-
livering to the party an attested co])y of the libel and summons, or ui
such other manner as the court shall consider to be most proper and
effi?ctual.
Sect. 20. When the adverse jjarty does not appear, and the notice of Court may
the ])endency of the libel is considered by the court defective or insuffi- notice!^"'^'"^'^
cient, it may order such further notice as it considers proper. K' S' 76, § 17.
Sect. 21. If, at any time during the pendency of the suit, the re- Guardian for
spondent is insane, the court shall appoint some suitable person as guar- |n8^at«' respon.
dian to appear and answer in like manner as a guardian is appointed for k. s. 76, § is.
an infant defendant in a suit at law. *^*' '*"
Sect. 22. In all cases of libel, the court may require the husb.ind Aiiowanwto
to i)ay into court, for the use of the wife during the pendency of the ^^f^ p™'1""&
libel, such sum of money as may enable her to maintain or defend the '^jSi, 82, § 1.
libel, although exceeding the taxable costs; and in every case of libel is55,' 137, § 6.
for divorce, the wife, when it is just and equitable, shall be entitled to 2Gra'''2s^"
alimony during the pendency of the suit. 6 Gray', 341!
Sect. 23. The court, u]ion granting to a woman a divorce from the Woman divorc-
bond of matrimony, may allow her to resume her maiden name, or the JbrSer nam™^
name of .any former husband. i»49. 1*1.
Sect. 24. If persons divorced from the bond of matrimony cohabit Penalty for co-
45*
534 DIVORCE. [Chap. 107.
habiting after as husband ancl wife or live together in the same house, they shall be
R^^s'Te § 19. liable to all penalties against adultery.
Innocent party Sect. 25. In cases of divorce from the bond of matrimony, the in-
may marry , &c. jjocent party may marry again as if the other party were dead. Any
i84i,'83.' ' marriage contracted by the guilty party, during the life of the other
8Pick'4M.' pfirty, except as provided in the following section, shall be void, and
4Cu8ii. M. such party shall be adjudged guilty of polygamy.
T '^"I'lV^fioo Sect. 26. When a divorce from the bond of matrimony, except for
111 WUat CilSeo /»Ti 11 1111 o 1 •
either party the cause ot adultery, has been granted under the laws ot this state or
izeJ to'' marry ' any State or territory in the United States, the justices of the supreme
again- juiUcial court, or either of them, upon petition filed by the party against
' ' whom the divorce was granted, (if the party resided within tiiis state
at the time of granting the divorce,) and upon such [notice] as the court
shall order, may authorize such party to marry again.
Issue of mar- Sect. 27. A divorce for adultery committed by the wife sliall not
Swrce fo^ °^ affect the legitimacy of the issue of the marriage, but such legitimacy,
adultery of if questioned, shall be tried and detenniued according to the course of
k! s. 76, § 20. the common law.
of marriage Seot. 28. The issue of a marriage dissolved by a divorce or sentence
k"s"7b"§'..>i *^^ nullity on .account of consanguinity or affinity between the parties,
1843, 5. ' shall be deemed to be illegitimate.
of marriage Sect. 29. The issue of a maiTiage dissolved on account of the
dissolved for nonage, insanity, or idiocy, of either iiarty, shall be deemed to be the
nonage, &c. , . .® ' .*',,,'' , i i f • ^
K. 8.76, §22. legitimate issue ot the parent who was capable ot contracting the
marriage,
of marriage Sect. 30. When a marriage is dissolved on account of a prior mar-
count ofprior"' riage of either party, and it ajipenrs that the second marriage was con-
marriage- tracted in <jood fiith and with the full belief of tjie parties that the
' ' • former husband or wife was dead, that fact shall be stated in the decree
of divorce or nullity; and the issue of the second marriage, born or
begotten before the commencement of the suit, shall be deemed to
be the legitimate issue of the parent capable of contractmg the
marriage.
Wife protected Sect. 31. The supreme judicial court sitting in any county may,
''""ffbT"'™ ^^ *^® jietition of the wife, ]irohibit the husband fi-om im])osing any
K- s. 76, §24. restraint on her personal liberty during the pendency of a libel.
Custody of ehii- Sect. 32. The court may in like manner, on tlic apjilication of either
hbfd ^''"''*"° party, make such order concerning the care and custody of the minor
E. s. 76, § 25. children of the parties during the pendency of the libel, as shall be
deemed expedient and for the benefit of the children,
after divorce. Sect. 33. Upon a decree of nullity or divorce, the court may make
R. S. 76, §26. gugji further decree as it deems expedient, concerning the care, custody,
and maintenance of the minor children of the parties, and determine
with which of the parents the children or any of them shall remain ;
and the court may, from time to time afterwards, on the petition of
either of the parents, revise and alter such decree, and make a new
decree, as the circumstances of the parents and the benefit of the chil-
dren require,
of minor chii- Sect. 34. After a divorce decreed in any other state or country, if
dreu of parents jjiinor children of the marriage are inhabitants of this state, the ius-
divorccd in . .,..,'^ , .. n • ^ /»
anothtr state, tices of the supreme judicial court, on the petition ot either parent or ot
mz 83 §1. ^ next friend in behalf of the children, such notice being given to both
parents as the court shall direct, may make like decrees concerning their
care, custody, education, and maintenance, as if the divorce had been
decreed in this state.
Infant chUdren Sect. 35. When the justices of the supreme judicial court have
of divorced per- iurisdiction over the custody and maintenance of the infant children of
sons, natlvtJ of*' i,,.,, • f -i • i
this state, not divorced persons, and such children .are natives of this state, or nave
to be removed j.ggi(je(j gye years within its limits, they shall not be removed out of the
Chap. 107.] ditobce. 535
jurisdiction, against their own consent, if of suitable age to signify the *j;"''J°™ '^''"
same, nor while under that age, wthout the consent of both parents, isi.','»3,'§2.
unless tlie court upon cause show^l otherwise orders. The court, upon
application of any person in behalf of such inthnts, may require such
security and issue such writs and processes as they shall deem proper
to efteet the purposes of this and the preceding section.
Sect. 36. Where the parents of minor children live separately, the children of par-
justices of said court, upon the petition of either parent, shall have the arateiv '"° ^*^^
same power to make decrees concerning their care, custody, education, k. s.fe, §26.
and maintenance, as concerning children whose parents are divorced. ' *'
Sect. 37. In making an order or decree relative to the custody of Rules as to cub-
children pending a controversy between their jiarents, or in regard to ^'J;''/ o'"'^'"'!-
their final possession, the rights of the parents in the absence of miscon- isoo,' 137,57.
duet shall be held to be equal, and the happiness and welfare of the
children shall determine the custody or possession. The court may
make the necessary orders and decrees trom time to time in relation to
such custody or possession.
Sect. 38. When a divorce is decreed for the cause of adultery com- in wimt cases
mitted by the husband, or because of his sentence to confinement at dlj^vc™""'^'""
hard labor, the wife shall be entitled to her dower in his lands in the u. s. re, §32.
same manner as if he were dead ; but she shall not be entitled to dower ^ ''^*" '
in any other case of divorce from the bond of matrimony. A divorce
from bed and board shall not bar her claim to dower.
Sect. 39. When a divorce is decreed for the cause of adulteiy com- rpon divorce
mitted by the wife, the husband shall hold her personal estate forever, ("fis il'illband*^
and her real estate so long as they both live ; and if he survives her to Uow Ucr es-
and there has been issue of the marriage born alive, he shall hold her k.s. re, s§33,
real estate for his own life, as tenant by the curtesy ; but the court may •**•
decree to the wife, for her subsistence, as much of her personal or real
estate, or of the income thereof, as it deems necessary.
Sect. 40. Upon the dissolution of a marriage by a decree of ntillity rpon divorce,
or divorce, for any cause except that of adultery committed by the t^ryof wiV.'she
wife, and upon every divorce from bed and board, the wife shall be shau hold her
entitled to the immediate possession of all her real estate in like man- k. s' 70", §§ 27°'
ner as if her husband were dead ; and the court may make a decree ^•
restoring to the ^vife the whole or any part of the personal estate that
has come to the husband by reason of the marriage, or awaiding to her
the value thereof in money to be paid by the husband.
Sect. 41. When pei-sonal estate of the wife, or money in lieu there- Court may ap-
ofj is awarded to her under the preceding section, the court in its dis- Ilr'pJoperty*
cretion may order it to be delivered or paid to a trustee appointed by awarded to
the court, upon trast, to invest the same and apply the income thereof if.s!76, §29.
in such manner as the court directs to the suj)port and maintenance of
the wite and minor children of the maiTiage, or any of them ; and also
to pay over the principal sum to the wife and children, in such propor-
tions and at such times as shall be ordered by the final decree of the
court. The trustee shall give such bonds for the faithful performance
of his trust as the court shall require.
Sect. 42. When the court deems it proper to award to the wife any Husband may
personal estate, or money in lieu thereof, it may require the husband to oath'as''to'per°°
disclose on oath what personal estate has come to him by reason of the sonai estate of
marriage, and how it has been disposed of, and what portion thereof k.s! 76, §30.
remains in his hands.
Sect. 43. Upon every divorce for adultery committed by the hus- in certain cases
band, or for impotency on his part, or for his uniting with any sect or aiio\™(i'aii-
society that believes or professes to believe the relation between hus- mony, upon
band and wife void or unlawful, or because of his sentence to confine- vorw, ic.
ment at hard labor; and upon every divorce from bed and board, if the {Lf' 109 ^ ^''
estate and effects restored and assigned to the wife are insufficient for lisso] looj § 3.
oot
DIVORCE.
[Chap. 107.
Alimony, &c.,
ill certain cases.
1S57, 2*j, § 3.
court may in
equity enforce
decrees of.
iSSS, 47.
security for
naymentof.
k. S. ?6, § 35.
Decree respect-
ing alimony,
&c., may be re-
vised and alter-
ed.
E. S. 76, §36.
may be made
or revised at
any time .after
decree of di-
vorce.
18S3, 2.3, § 1.
Costs on peti-
tions, &c.
R. S. 76, § 27.
1833, 23, § 2.
On certain
libels for di-
vorce, hus-
band's prop-
erty may be
attached.
1865, 137, § 1.
Attachment
may be made on
summons or
order of notice,
&c.
1863, 137, §§ 2,
3,5.
LawB relating
to attachments
to apply.
1855, 137, § 4.
Course of pro-
ceedings in
suits under thit
chapter.
E. S. 76, § 38.
the suitable support and maintenance of herself and such children of
the marriage as are committed to her care and custody ; the court may
further decree to her such part of the personal estate of the husband
and such alimony out of his estate as it deems just and reason.able.
Sect. 44. When a divorce is decreed for any of the causes mentioned
in sections seven and ten, the court granting it may decree alimony to
the wife, or any share of her estate in the nature of alimony to the
husband.
Sect. 45. The court may enforce decrees m.ade for allowance, ali-
mony, or allowance in the nature of alimony jjending libels, or upon or
after final decrees of divorce, in the same manner as decrees are eiiforced
in equity.
Sect. 46. When .alimony or other annual allowance is decreed for
the wife or children, the court may require sufficient security to be given
for its ])aymeut according to the terms of the decree.
Sect. 47. After a decree for alimony or other annu.al allowance for
the wife or children, and also after a decree for the appointment of trus-
tees to receive and hold any property in trust for the use of the wife or
children as before provided, the court may, from time to time, on the
petition of either party, revi.se and alter its decree respecting the amount
of such alimony or other annual allowance, .and the ]>ayment thereof,
and also respecting the ap])ropriatiou and payment of the principal and
income of the property so held in trust, and may make any decree
respecting said matters which it might have made in the original suit.
Sect. 48. The supreme judicial court, .after a decree of divorce has
been granted on the libel of a married woman, may at any time, upon
petition therefor, make such decree respecting alimony, or other pro-
vision for her maintenance, or for the benefit of the children of the
parties, as it might have made in the original suit ; although no such
decree of alimony or other provision was made in the original decree of
divorce, or pr.ayed for in such libel ; and it may from time to time revise
and alter such decree, as the circumstances of the parties and the
benefit of the children may require.
Sect. 49. Ujion petitions for a decree under the preceding section,
and upon petitions to revise and alter a decree under this chapter, the
court may award costs to either party as justice and equity require.
Sect. 50. Upon libels for divorce for adultery committed by the
husband, or because of his sentence to continemeijt ,at hard labor, and
uj)on libels for divorce from beil and board, in order to secure a suit.able
support and maintenance to the wife and such children as may be com-
mitted to her care and custody, an attachment of the husband's real and
personal estate m.ay be made by the officer serving the libel.
Sect. 51. When the libel is filed in v.acation in the office of the clerk
of the court, such attachment may be made upon the summons issued
thereon, in the same manner as attachments are made upon writs in
actions at common law. When the libel is in the first instance pre-
sented to the court, the attachment may be made in like manner ujjon
the order of notice issued thereon. The amount for which the attach-
ment may be made, shall be expressed in the summons or order of
notice.
Sect. 52. All laws relating to attachments of real or person.al estate,
shall apply to attachments herein pro\'ided for, so far as the same are
not inconsistent with the two preceding sections.
Sect. 53. The supreme judicial court may in all cases where the
course of proceeding is not specially prescribed, hear and determine all
matters coming within the ]iurview of this chajiter, according to the
cour.se of jiroceeding in ecclesiastical courts and in courts of equity, .and
may issue process of attachment and of execution, and aU other proper
and necessary processes.
Chap. 108.] certain eights, &c., of husband and wipe.
537
Sect. 54. When an inhabitant of this state goes into another state Divorce out of
or country to obtain a divorce for any cause occurring here, and whilst Ki'jf.'rn, §n9.
the parties resided here, or for any cause which would not authorize a i '"ijns. it. Ki.
divorce by the laws of this state, a divorce so obtained shall be of no wiinis.'-M.' '
force or effect in this state. s^CusirhKl''
Sect. 55. In all other cases, a divorce decreed in any other state or 2 Gray,' 36?.'
countrv aceordintr to the laws thereof, by a court having iurisdietion I','^''''''' ''Y',
of the cause and both the jiarties, shall be valid and effectual in this it. s. ?o, §«."
state.
CHAPTER 108.
OF CERTAIN RIGHTS AND LIABILITIES OF HUSBAND AND WIFE.
Section
1. Married women may liold property and
eamiugs to sole and separate use, &c.
2. Real estate of wife, how conveyed.
3. Married women may convey separate prop-
erty, &c., carry on business, sue, &c.
4. Trustee may be appointed, on petition of
wife,to take cliargeof her separate e8tate,&c.
5. Husband not liable for contracts of wife,
rolatin*j to her separate property, &c.
6. Wages, &c., of married woman may be
paid to her, &c.
7. Property standing in name of wife, in cer-
tain cflses, not liable for debts of husband.
8. Liability of husband and wife upon causes
of action existing before marriage.
9. Married woman may make will, &c.
10. Marriage settlements and rights by cur-
tesy not invalidated. Husband not to con
vey, &c.y to wife.
11. Wife may release dower, &c., on sale of
land by guardian of husbtmd.
12. may join with guardian in sale of her real
estate.
13. Proceeds of such sales, how disposed of.
14. Damages awarded when land of married
woman is taken for railroad, &c., how dis-
posed of.
15. Wife or husband of ward may join with
guardian in making partition of rejii estate.
10. Married woman having property may be
put under guardianship.
17. Guardian of married woman not to have
cust^ody, &c., of ward, except, &c.
18. not to apply property to her support
without leave of probate court.
19. may be appointed to insane married wo-
man having rights of dower, &c.
Section
20. How such dower and homestead may be
released.
21. When dower is released, part of proceeds
may be reser\'ed for use of wife.
22. So when estate of homestead is released.
23. 24. Provision for wife in lieu of dower.
25. In what county proceedings are to be had,
and where orders and decrees are to be re-
corded.
26. Allowance to wife out of estate of insane
husband, how made.
MARRIAGE CONTRACTS.
27. Marriage contracts may be made by parties
before marriiige. Nature of sucli contracts.
28. Schedule and description of property to be
recorded with contract in registry of deeds,
&c.
MARRIED WOMEN COMING FROM OTHER
STATES, &C.
29. Rights of married woman coming into
state without husband.
30. of parties married out of state and com-
ing here to reside.
MARRIED WOMEN ABANDONED BY THEIR
HUSBANDS, &C.
31. Wife, if abandoned by husband or he is sent
to state prison, may be authorized to con-
vey property.
32. to make contracts, &c.
33. Continuance of such authority, &c.
34. Suits in which she is party not to abate by
his return, &.c.
35. Proceedings on petition, &c., by married
woman, abandoned, &c.
Section 1. The property both real and personal which any married
woman now owns as her sole and separate property, that which comes to
her by descent, devise, bequest, gift, or grant, that which she acquires
by her trade, business, labor, or ser%"ices, carried on or perfomied on her
sole and separate account, or received by her for releasing her dower by
a deed executed subsequently to a conveyance of the estate of her hus-
band, that which a woman married in this state owns at the time of her
marriage, and the rents, issues, profits, and proceeds, of all such property,
shall, notwithstanding her marriage, be and remain her sole and separate
property, and may be used, collected, and invested, by her in her own
name, and shall not he subject to the interference or control of her hus-
band, or liable for his debts.
68
Married women
may hold prop-
erty and earn-
ings to their
sole and sepa-
rate use, &c.
1845, ','US, ^ 3.
184r,, L'lr.t, § 1.
iKj.-), ::(4, § 1.
ls.-,r, LM9. § 1.
(i Gray, 562.
7 Gray, 337.
538
CERTAIN RIGHTS, &c., OF HUSBAND AND WIFE. [ChaP. 108.
Keal estate of
wife, how con-
veyed.
K. S. 59, §3.
4 Mason, 45.
7 Mass. 19, 291.
3 Pick. 521.
2 Gray, ini.
Married women
may convey
separate prop-
erty, &c., carry
OQ business, &c.
E. S. 59, § 2.
1855, 304, §§ 3,
4,7.
1S57, 249, §§ a, 3.
4 Mason, 45.
7 Mass. 10, 291.
3 Pick. 531.
13 Met. 154.
2 Gr.iy, 1111,447.
See Ch. 89, § 2U.
Trustee may be
appointed ou
petition of wife
to take charge
of her separate
estate, &c.
1845, 208, § 8.
11 Met. 349.
Husband not
liable for cer-
tain contracts
of wile.
1S55, 3W, § 7.
1857, 249, § U.
"Wa^es, &c., of
married woman
may be paid to
her, &c.
1S4(1, 209, §§1,2.
1852, 292.
Property staud-
ino^ in name of
wife not liable
for debts of
husband.
1855, 304, § 0.
Liability of luis-
band and w'ile
upon causes of
action existini,'
before mar-
riage.
1845, 208, § 5.
1855,304, §2.
Married woman
may make will,
&c.
1855, .304, § 5.
1857, 249, § 4.
Marriage settle-
ments and
Sect. 2. A husband and wife may, by their joint deed, convey the
real estate of the wife which is not her separate propert)', in lil^e manner
as slie might do by her separate deed if she were unmarried ; but the
wife shall not be bound by any covenant contained in such joint deed.
Sect. 3. A married woman may bargain, sell, and convey, her sepa-
rate real and personal property, enter into any contracts in reference to
the same, carry on any trade or business, and perform any labor or ser-
vices on her sole and separate account, and sue and be sued in all mat-
ters having relation to her separate property, business, trade, services,
labor, and earnings, in the same manner as if she were sole. But no
conveyance by her of shares in a coiporation or of any real property,
e.vcept a lease for a term not exceeding one year, and a release of dower
executed subsequently to a conveyance of the estate of her husband,
shall be valid, without the assent of her husband in writing, or his joining
with her in the conveyance, or the consent of one of the judges of the
siqireme judicial court, superior court, or the probate court, granted on
her petition in any county on account of the sickness, insanity, or ab-
sence from the state, of her husband, or other good cause ; and the
husband if within the state shall have such notice of the petition as the
judge may order.
Sect. 4. A trustee may be appointed by the supreme judicial court
on the petition of a married woman having separate projierty, to hold
tlie same in trust for her, and she may thereupon convey the same to the
trustee upon such trusts and to such uses as she may declare. The
trustee may prosecute and defend all actions in relation to such property
brought by or against her, founded on any cause of action relating to
the same ; and the property in his hands shall be liable to be attached or
taken ou execution in any such action.
Sect. 5. The contracts made by a married woman in respect to her
separate ])roj)erty, trade, business, labor, or services, shall not be binding
on her husband, nor render him or his property liable therefor ; but she
and her separate property shall be liable for such contracts in the same
manner as if she were sole.
Sect. G. Payment may be made to a married woman for wages
earned by her labor, and her receipt for the income of jn-ojierty held in
trust for her, or for the principal when the same is payable to her, or for
the payment to lier of money de}iOsited by or due to her, before or after
marriage, shall be a vaUd receipt and discharge, although her'husbaud
does not join therein.
Sect. 7. The real estate and shares in any coqioration standing in the
name of a married woman, which were her proiierty at the time of her
marriage, or which become her property by devise, bequest, or gift, of
any per.son except her husband, shall not be liable to be taken on execu-
tion against her husband for any debt contracted or cause of action
arising after the third day of June in the year eighteen hundred and
fifty-five.
Sect. 8. A married woman having separate property may be sued
for any cause of action which originated against her before marriage, and
her property may be attached and taken on execution in the same man-
ner and with the same efl'ect as if she were sole. The husband of a
woman married in this state after the third day of June in the year
eighteen hundred and fifty-tive shall not be liable to be sued for any
cause of action which originated against her before marriage ; but she
shall be liable to be sued lor the same in the manner aforesaid.
Sect. 9. A married woman may make a will of her real and separate
jiersonal estate, in the same manner as if she were sole, but such will
shall not operate to deprive her husband of more than one-half of her
personal property, without his consent in writing.
Sect. 10. Nothing contained in the preceding sections shall invali-
Chap. 108.] certain rights, &c., of husband and wife. 539
date any marriage settlement or contract, or authorize the husband to rights by our-
convey or give property to his wife, or destroy or impair his riglits as n'otto lunv.y"
tenant by the curtesy, or enable a married woman to destroy or impaii- *':■.• •" V 'IV', ,.
*, .11 • 1 1 • • INya, ■i04, §§ 1, 9,
the same I)}' any will or conveyance without his written assent. iss?, ««, §5.
Sect. 11. When the guardian of a married man is licensed to sell wife may re-
real estate of his ward, the wife of the ward may join with the guardian i('I.T'„M"s"i,!'|jj.
in the conveyance, and thereby release her right of dower and the estate Kuanii.m of
or nglit of homestead in the granted premises, in like manner as she u. .s. rr, § 14.
might have done by joining in a conveyance thereof made by her hus- '*^''' '-•"*■
band if he had been under no legal disability.
Sect. 12. When such guardian is licensed to sell the interest of the may join with
ward in any real estate of his wife, the wife may join with the guardian C('h"r'r"ai es- "
in the conveyance, and thereby sell and convey all her estate and inter- t"*'^ ., .
est in the granted premises, in like manner as she might have done by a it.57, iiis.
conveyance thereof made jointly with her husband, if he had been under
no legal disability.
Sect. 13. In case of such release by the wife of her right of dower, rrococdsof
or the estate or right of homestead, or of such conveyance of her own (/i'.'j'.'oswfoV.'"'"
estate, the proceeds of the sale may be so invested and disposed of as to li.s.??, §10.
secure to her and the minor children of the owner, if it is an estate or '^''■■
right of homestead, the same right, use, and benefit, of and in the prin-
ci])al sum and the income thereof, that she or they would have had
therein if it had not been sold. Any agreement made between her and
the guardian for securing and disposing of the ])roceeds or any part
thereof for the purpose aforesaid, apjiroved by the probate court for the
count}' in which the guardian was apjiointed, or by the sujneme court
of probate, or any order therefor made by either of said courts, if she
and the guardian cannot agree, shall be valid and binding on all ])ersons
interested in the estate, and may be enforced in either of said courts, or
by an action at common law, as the case may require.
Sect. 14. When the real estate of a married woman is taken for a Pamasps
railroad, turnpike, way, or other jjublic use, or is damaged by the laying iat,"i"'f n,"nTMi
out of a railroad, turnpike, way, or Ijy any other ]iublic works, the dam- woman is takoa
ages or compensation awardeil therefor may be so invested and disposed &c., iiow ois-
of as to secure to her the same right, use, and benefit, of and in the sum i','"''''.'^'-
so awarded and the income thereof, that she would have had of and in '
the leal [estate] and the income thereof if it had not been so taken or
damaged ; and the supreme judicial court shall, on the application of
such woman, hear and determine the case according to the course of
proceedings in equity, and shall make such decrees and orders therein
as may be necessary and proper to enforce and secure her rights and
interests.
Sect. 15. The wife of a man who is under guardianship may join wifeorhns-
with the guardian, and the guardian of a woman may join with her hus- may joiirwith
band, in makine partition of her real estate held in joint tenancy or in &"'inii'u> in
common, and they may make any release or other conveyance necessary tiouotreaies-
or proper for that purpose, in like manner as the parties might if neither ^'g ^^ ^^o.
of them were under legal disability.
Sect. 16. When a married woman owns property, real or personal, a Married wo-
guardian may be appointed to her for the same causes, and in the same bepi"under"'^
manner, and with the same powers and duties, as if she were sole, except f.""r''i™"'"P-
as hereinafter provided. But no guardian shall be so appointed without li. '"'"' ' '
such notice to the husband as the court may order. '*^'<^ •^''- "**•
Sect. 17. Such guardian shall not have the care, custody, or educa- jfiiardian of,
tion, of his ward, except in case of the insanity of her husband, or of his "".'/"i'c'^Iof"^
abandoning his wife by absenting himself from the state, and making no ward, except,
sufficient ])rovision for her.
Sect. 18. Such guardian shall not apply the property of his ward to not to apply
the maintenance of herself and lamily while she is mai-ried, unless sipport'wwh-'^'^
540 CERTAIN EIGHTS, &c., OF HUSBAND AND WIFE. [ChAP. 108.
out leave of authorized by llie probate court on account of the inability of her hus-
?s53!''m'""^'' band suitably to maintain her or them, or for other cause which the
court deems sufficient.
Guardian m.iy Sect. 19. When a married woman is by reason of insanity iiicom-
toBancm^'m^M pptent to release her right of dower or right of homestead, a guardian
woman, iiavui^' may be appointed for her in the same manner as if she were sole, with
njito (OHL-r, ^^^ powers and duties given to guardians of married women owning
lis?' 29s' II s' 9' pi"operty, and the husband or any suitable person maybe appointed
guardian.
How Bueh flow- Sect. 20. When the husband of an insane woman is desirous of
Iteld'm'iy'be Conveying any of liis real estate, whether absolutely or by way of mort-
reieaseti. gage, he may by petition, describing the same, ask leave of the probate
185?| 2U8l 1 16. court that the dower of his wife or any estate of homestead therein
may be released, setting forth the facts and reasons why his pi-ayer
should be granted. After notice in some newsjiaper to all persons
interested and a hearing thereon, the court, if satisfied that such dower
or estate of homestead ought to be released, shall authorize her guar-
dian to make such release, by joining in any deed of conveyance, to be
made within five years thereafter, either by the husband or any trustee
for him, and whether such deed pass the whole or only separate parcels
or lots of said real estate.
When dower is Sect. 21. If the guardian is so authorized to release the dower of
wweeds may"'^ ^'^ Ward, and the probate court deems it proper that some portion of
be reserved lor the proceeds of such real estate, or of any sura loaned on mortgage
1856, 169, §4. thereof, should be reserved for the use of such married woman, the
court may order that a certain sum, not exceeding thirty-three and one-
third per cent, of the net amount of such proceeds or sum actually to
be realized from such sale or mortg.age, exclusive of any encumbrance
then existing on the estate, shall be set aside and ]iaid over to such
guar<li:m to be invested and held by him for her benefit if she survives
lier husband ; the income of such sum to be received and enjoyed by
the husband during the life of his wife, or until otherwise ordered by
the court upon good cause shown ; and the principal to be his, and to
be paid over to him, if he survives her.
So when estate Sect. 22. If the guardian is so authorized to release the estate of
released'*"'"' '^ homestead, and tlie probate court deems it jiroper that some portion
1857, 298, §11. of the proceeds of such real estate, or of any sum loaned on mortgage
thereof, should be reserved for the use of such married woman, the
court may order that a certain sum, not exceeding eight hundred dol-
lars, be set aside and paid over to such guardian to be invested in a
homestead, and held by him for the benefit of such married woman, if
she survives her husband ; the rent or use thereof to be received and
enjoyed by the husband during the life of his wife, or until otherwise
onlered by the court upon good cause shown ; and the homestead
to be his, and to be conveyed to him by said guardian, if he sur-
vives her.
Provision for Sect. 2.3. When the husband of an insane woman has conveyed
dowe" ''™ "'^ any real estate in trust, without the power of revocation, and in such
1856, 169, §5. conveyance provision is made for his wife, which in the opinion of the
jirob.Tite court, to be certified on jietition, notice, and hearing, is suf-
ficient in lieu of dower therein, the trustee in such conveyance shall
be authorized to pass title to such real estate free from all right of
dower.
Same suhjoct. Sect. 24. If, in the opinion of the probate court, certified as afore-
1856, 169, §6. s;ii(l^ such provision is sufficient in lieu of dower of such insane woman
in all the real estate owned by her husband at the date of the petition,
or in any ])articular portions thereof, her guardian shall be authorized
to release her dower in all such real estate, or such particular portions,
by joining in a deed of conveyance of the same.
Chap. 108.] certaix rights, &c., of husband and wife. 541
Sect. 25. All proceedings in the probate court under the five pre- in wimt county
ceding sections shall be had in the county where tlie liusband of the ro"bo''h"dfan'"°
insane woman resides, if an inhabitant of this state, and if not, then in "i""''" orders
some county where any of his real estate is situated ; and a certified to be rcTOrdS!
copy of all final orders or decrees therein shall be recorded in the ''^iMW. § 7.
registry of deeds in eveiy county or district in which such real estate
is situated.
Skct. 26.^ The wife of a person under guardianship for insanity, Allowance to
may a]iply to the probate court for the county in which the guardian "s'tutcof^sane
was a]ipointed, for an allowance for her support out of the estate of '"'sband, how
her husband, to be paid to her by the guardian during the continuance isaofiw.
of the guardianship. The amount of the allowance, if made, shall
be determined by commissioners ajipointed by the court upon her
petition.
MARRIAGE CONTRACTS.
Sect. 27. At any time before a marriage the parties may enter into Jrania^e con-
a contract in writing, agreeing and J1I•o^•iding that, alter tlie marriage ma;]!"i"v%rtie9
is solemnized, the whole or any designated part of the real or jiersonal ixime mar-
estate, or any right of action of which either party may be seised or SatSi-e of euch
possessed at the time of the man-iage, shall remain or become the prop- J^j ''ii^'c ,
erty of the husband or wife, according to the terms of the contract. ' ~ '
Such contract may limit to the husband or wife an estate in fee or for
life in the whole or any part of the jirojjerty, and designate any other
lawful limitations. All such limitations shall take effect at the time of
the marriage, in like manner as if they had been contained in a deed
conveying the property limited.
Sect. 28. There shall be annexed to such contract a schedule of the Schedule and
property intended to be affected thereby, containing a sutlicicntly clear ?,roiuTt y"t o te
deserijition of the property to enable any creditor of the husband or r. xordcd witu
wife to distinguish it from all other jirop'erty; and such contract and r™L"'ryof
schedule shall, either before the marriage or within ninety days there- <■';•''!'*;*''•
after, be recorded in the registry of deeds for the county or district in '*'•''-*'' s 2-
which the husband resides at the time of the record, or if he is not a
resident within this state, then in the registry of deeds for the county
or district in which the wife resides at the time of the record, if it is
made before the marriage, or in which she last resided if made after the
marriage. If not so recorded the contract shall be void. It shall also
be recorded in every county or district in which there are lands to which
it relates.
MARRIED WOMEN COMING FROM OTHER STATES, &C.
Sect. 29. When a married woman comes from another state or Riprhts of mar-
country into this state without her husband, he never having lived with c,'M',',iI™7nto
her in this state, she shall have all the rights and jiowers given to mar- ptatr without
ried women by the preceding provisions of this chapter, and may also k.s.77,"§i8.
transact business, make contracts, and commence, pr::2cute, and defend, 6\^'i'*go^^"
siiits, in her own name, and dispose of her pioperty which may be found
here, in like manner as if she were unmarried. She shall also be liable
to be sued as if she were unmarried, u])on all contracts and for all other
acts made or done by her after her arrival in this state. She may make
and execute deeds and other instruments in her own name, and do all
other lawful acts that may be pro])er to carry such ])owers into effect.
Sect. 30. When a husband and his wife married in another state or ofpartics
country come into this state, either at the same time or different times, "JUri'^L""*"'"
1 **T1 11 T T«rti 11 • 11 nLiiri cllKl colli—
and reside here as husband and wife, she shall retain all property which iiij,' here to re-
she had acquired by the laws of any other state or country, or by a i"' s. 7?, § i9.
marriage contract or settlement made out of the state. Their so residing '855, aw, §8.
together here shall have the same effect with regard to their subsequent
46
542
GUARDIANS AND WARDS.
[Chap. 109.
rights and liabilities, as if they had married at the time of their first
residing together in this state.
■Wife, if alian-
doucd by hus-
band, or ho ia
sent to state
prison, may be
authorized to
convey proper-
ty.
K. S. 77, §§ 1, 2,
3, 12, 13.
to make con-
tracts, &c.
R. 8.77, §§4,
7,8.
Continuance of
such autliority,
Ac.
K. S. 77,§§5,0,
12, 13.
Suits in which
she is party not
to abate by Itis
return, &c.
K. S. 77, §§«, 10,
12, 13.
Proceedings on
petition, .tc, by
married woman
abandoned, &c.
R. S. 7?, § U.
MARRIED WOMEN ABANDONED BY THEIR HUSBANDS, &C.
Sect. 31. A wife whose husband has absented himself from the state,
abandoning and not sufficiently maintaining her, or whose husband has
been sentenced to confinement in the state prison, may upon her peti-
tion be authorized bj' the supreme judicial court to sell, convey, and re-
ceipt for, her real and personal estate, and any personal estate which
may have come to her husband by reason of the marriage, and which
remains in this state undisposed of by him, or to which he is entitled in
her right ; and to use and dispose of such property or the proceeds
thereof during the absence or imprisonment of her husband, as if she
were unmarried.
Sect. 3'2. The court may further authorize such wife to make con-
tracts in her own name, and to sue and be sued in law or equity, as if
she were sole.
Sect. 33. The authority so granted shall continue until the husband
returns into the state and claims his marital rights, or is discharged from
prison, and during its continuance the wife may do all acts necessary for
its full e.xercise.
Sect. 34. No suit wherein such woman is a party shall be abated by
the return of her husband into the state or his discharge from prison,
but he may, on iiis application, be admitted to prosecute or defend the
same jointly with her in like manner as if they had intermarried after
the commencement of the suit. If he is not admitted as a party, the
suit shall proceed to judgment and execution as if he had not returned
or been discharged from prison, and any judgment recovered against the
wife may be afterwards enforced against him in like manner as if it had
been rendered against her before their intermarriage.
Sect. 35. Every petition for any of the purposes mentioned in sec-
tions thirty-one and thirty-two, may be filed, heard, and determined, in
the supreme judicial court in any county. The petition shall be pre-
sented and notice thereon given in the manner prescribed for presenting
and giving notice of libels for divorce when the adverse party is without
the state.
CHAPTER 109.
OF GUARDIANS AND WARDS.
guardians.
Section
1. Guardians to be appointed by probate
court.
OF MINORS.
2, 3. of minors, by whom to be nominated,
&c.
4. power and duty of.
6. may be appointed by will of father.
6. such to ^ve bond, unless, &c.
7. ml litem, &o., how appointed.
OF INSANE PERSONS AND SPENDTHRIFTS.
8. of insane person, how appointed.
9. of spendthrift, how appointed.
10. Contracts of spendthrift, pending proceed-
ings, when void.
Section
11. Expenses of defence of insane person,
&c.
12. Power and duty of guardian of insane per-
son or spendthrift.
OF PERSONS OUT OF THE STATE.
13. Guardians of persons out of state.
14. powers and duties of.
15. bond of.
GENERAL PROVISIONS.
16. Guardians to gire bond ; condition thereof.
17. Of inventory of estate and accounting
therefor.
18, 19. Guardians, powers and duties of.
20. may make partition of real estate of ward,
set off dower, &c.
Chap. 109.]
GUARDIANS AND WARDS.
543
Section
21. Property of minor whose father is living,
when applied to his support.
22. Courts may authorize sales of stocks, &c.,
and investments.
23. By order of S. J. C. guardian may transfer
property of ward removing from state.
24. Removal, resignation, and death, of guar-
dian.
25. Marriage of female guardian extinguishes
authority.
Sectios
26. Wards, when and how discharged from
guardianship,
27. Sureties may be discharged and new bond
required.
28. Bonds may he sued. Proceedings.
29. Action against surety limited, &c.
30. Proceedings for recovering effects con-
cealed, &c.
31. Compensation of guardians.
GTJARDIAIfS.
Section 1. The probate court in each county, when it appears Guardians to be
necessary or convenient, may appoint guardians to minors and others «i>poin«d by
, . . , 1 -^ ,, . y * '. , ^ , , jirobate court
being inhabitants oi or residents in the same county, and to such as re- it. s. 79, §i.
side out of this state and have any estate within the same.
same subject.
K. S. 79, § 3.
1837, 171, §2.
power and
OP MTNOKS.
Sect. 2. If a minor is under the age of fourteen years, the probate of minors, by
court may nominate and a])point his guardian. If he "is above that age, ro''m?natoir&c.
he may nominate his own guardian, who, if approved by the court, shall k. s. 79, §2.
be appointed accordingly ; if not approved by the court, or if the minor lee'cf.' iwj
resides without this state, or if after being cited he neglects to nominate 5§ ^^< '■^■
a suitable person, the court may nominate and appoint his guardian in
the same manner as if he were under the age of fourteen years.
Sect. 3. A minor above the age of fourteen j'ears may nominate his
guardian before a justice of the peace or the city or town clerk, who
shall certify the fact to the probate court.
Sect. 4. The guardian of a minor shall have the custody and tuition
of his ward, and the care and management of all his estate; and unless j"'j?' ?^' ..
sooner discharged according to law, shall continue in office until the
minor arrives at the age of twenty-one years. But the father of the
minor, if living, and in case of his death, the mother, while she remains
unmarried, they being respectively competent to transact their own busi-
ness, shall be entitled to the custody of the person of the minor and the
care of his education.
Sect. 5. A father may by his last will in writing appoint guardians
for his children, whether born at the time of m.aking the ^"ill or after-
wards, to continue during the minority of the child or a less time. Such
testamentary guardian shall have the same powers and perform the
same duties with regard to the person and estate of the ward, as a
guardian appointed by the probate court.
Sect. 6. The guardian so appointed shall give the bond prescribed
in section sixteen, except that when the testator has ordered or re
quested in his will that a bond be not given, it shall not be required, R. S. 79, §7.
unless from a change in the situation or circumstances of the guardian
or for other sufficient cause the probate court deems it proper to re-
quire it.
Sect. 7. Nothing contained in this chapter shall impair or affect the
power of any court or justice of the peace to appoint a guardian to de-
fend the interests of a minor impleaded in such court, or interested in a
suit or matter there pending; nor their power to appoint or allow any
person, as next fi-iend for a minor, to commence, prosecute, or defend,
any suit in his behalf.
may be ap-
pointed by will
of father.
1!. S. 79, §6.
S Met. 127.
such to give
bond, unless,
ad Hiemf Ac,
how appointed.
R. S. 79, § 8.
OF INSATTE PERSONS AND SPENDTHRIFTS.
Sect. 8. When the relations or friends of an insane person, or the Guardians of in-
mayor and aldermen or selectmen of the city or town of which such how appointed.
544
GUARDIANS AND WARDS.
[Chap. 109.
E. S. 79, §9.
14 Mass. 2'^'2.
Guardian of
spendthrift,
how a])i)t)intod.
E. S. rit, §§ U,
12.
1&46, 249.
12 Pick. 153.
Contracts of
Bpendtlii'ift,
poudin;^ pro-
ceediuys, when
void.
E. S. 79, § 13.
3 Pick. 229.
Expenses of de-
fence of insane
person, &c.
K. S. 79, § 14.
Power and duty
of guardian ol
insane ijersim
or spendthrift.
E. S. 79, §§ IIJ,
16.
5 aiass. 427.
21 Pick. 30.
Guardians of
persons out of
state.
E. S. 79, § 2S.
powers and
duties of.
E. S. 79, § 29.
bond of.
E. S. 79, § 30.
person is an inhabitant or resident, applies to the probate court to have
a gnarflian appointed for him, the court shall cause notice of not less
than fourteen days to be given to the supposed insane jicrson, of the
time and place appointed for the hearing ; and if after a full hearing it
np]iears that the pensou in question is incapable of t.iking care of him-
self, the court shall a]>]>oiiit a guardian of his jierson and estate.
Sect. 9. When a person by excessive drinking, gaming, idlene.ss, or
debauchery of any kind, so spends, wastes, or lessens, his estate, as to
expose himself or his family to want or suifering, or any ])laee to charge
or expense for the supjiort of himself or his family, the mayor and
aldermen or selectmen of the city or town of which sucli sj^endthrift is
an inhabitant or resident, or u])on which he is or may become charge-
able, may present a com])laint to the probate court, setting forth the
facts and circumstances of the case and prajdng to have a guardian
appointed. The court, shall cause notice of not less than fourteen days
to be given to the sup]iosed s])endthrift, of the time and jilace a]ipointed
for the hearing; and if after a full hearing it a])j)ears that he conies
within the above description, the court shall appoint a guardian of his
person and estate.
Sect. 10. The complainants under the preceding section may cause
a copy of the complaint, with the order of notice, to be filed in the
registry of deeds for the county or district ; and if a guardian is aj)-
pointed upon such complaint, all contracts, except for necessaries, and
all gifts, sales, or transfers, of real or personal estate, made by the spend-
thrift after such filing of the coni]ilaint and order, and before the termi-
nation of the guardianship, shall be void.
Sect. 11. When a guardian is appointed for an insane person or
.spendthrift, the court shall make an allowance, to be paid by the
guardian, for all reasonable expenses incurred by the ward in defending
himself against the complaint.
Sect. 12. The guardi.an of an insane person or spendthrift, shall have
the care and custody of the person of his ward and the management of
all his estate ; and shall give the bond presci'ibed in section sixteen,
except that the provisions relating to the education of the ward shall
be omitted.
OF PERSONS OUT OF THE STATE.
Sect. 1.3. When a person liable to be put under guardianship accord-
ing to the provisions of this chapter, resides without this state and has
any estate therein, any friend of such person, or any one interested in
his estate, in expectancy or otherwise, may apjily to the probate court
for any county in which there is any estate of such absent person, and
after such notice to all persons interested as the court shall order and a
I'uU hearing and examination, a guardian may be appointed for such
absent person.
Sect. 14. Such guardians shall have the same powers and duties with
respect to any estate of the ward found ^vithin this state, and also with
respect to the person of the ward if he comes to reside therein, as
are prescribed with respect to other guardians .appointed under this
chapter.
Sect. 1.5. They shall give the bond prescribed in section sixteen,
except that the provisions resjiecting the inventory, the disjiosal of the
e.state and effects, and the account to be rendered liy the guardi.an, shall
be confined to such estate .and effects as come to his hands in this state ;
and that the ]irovisions resjiecting the custody of the ward shall not be
applicable, unless he comes to reside within this state.
Chap. 109.] guardians and wards. 545
GENEEAX PROVISIONS.
Sect. 16. Every guardian shall give bond with surety or sureties to GuardianBto
the judge of the probate court, in such sum as he shall order, with con- 3itYon"tbereof°'
dition substantially as follows, (except as is provided in sections six, R-S. rii, §5.
twelve, and fifteen, of this chapter, and section thirteen of chapter one 1^55^ ■2m.
hundred and one :) — f^^^^'Jf-
' 2 Doug. 433.
1 Pick. 198.
First. To make a true inventory of all the real estate and all the goods, chattels, n jipt. 5..'9.
rights and credits, of the ward, that shall come to his possession or knowledge, and to 3 Cush. 405.
return the same into the probate court at such time as the court shall order : ll*r''''h*i8'
Second. To dispose of and manage all such estate and effects according to law and
for the best interests of the ward, and faithfully to discharge his trust in relation there-
to, and to the custody, education, and maintenance, of the ward :
Third. To render an account on oath of the property in his hands, including the
proceeds of all real estate sold by him, and of the management and disposition of all
such property, within one year after his appointment, and as often as once in three
years thereafter, and at such other times as the probate court shall direct : and
Fourth. At the expiration of his trust to settle his accounts in the probate court,
or with the ward or his legal representatives, and to pay over and deliver all the estate
and effects remaining in his bands or due irom him on such settlement to the person
or persons lawfully entitled thereto.
Sect. 17. Upon taking an inventory, the estate and ctTects com- or inventory of
prised therein shall be appraised by three suitable persons appointed countin"°tiitre-
and sworn as is required with respect to the inventorv of the estate of for.
a deceased person; and every guardian shall account for and dispose 4c'uBh.5io. '
of the personal estate of the ward as is directed with res])ect to exec-
utors and administrators in sections one, two, three, six, and seven, of
chapter ninety-eight.
Sect. 18. Every guardian shall pay all just debts due from his ward. Guardians,
out of the personal estate if sutficient, and if not, out of the renl estate \°^Tol '^^ **""
upon obtainingr a license for the sale thereof as provided in chai)ter one n. s. 79, § 17.
'1 I ick 36
hundred and two. He shall settle all accounts of the ward, ;uid de-
mand, sue for, and receive, all debts dvie to him, or, with the apjirolja-
tion of the probate couit, compound for the same and give a discharge
to the debtor upon receiving a fair and just dividend of his estate and
effects ; and he shall appear for and repi'esent his ward in all legal suits
and proceedings, unless another person is appointed for that puipose as
guardian or next friend.
Sect. 19. He shall manage the estate of the ward frugally and with- Same subject.
out waste, and apjily the income and profits thereof, so far as may be see'chi'ios!^^.
necessary, to the comfortable and suitable maintenance and support of
the ward and his fiimily. If the income and profits are insufficient for
that puqiose, the guardian may sell the real estate, upon obtaining a
license therefor as provided by law, and ajiply the ]>roceeds thereoti so
far as may be necessary, for the maintenance and support of the ward
and his family.
Sect. 20. He may, except when he has an interest adverse to that may make
of the ward in the estate to be divided, make partition of the real estate Steof ward!!*
of his ward when lying in common and undivided, either upon petition Rtt off dower,,
for partition or otherwise, as fully and in like manner as the ward could it.'s. 79, §19.
do if he were under no disability; may assign and set out dower in his is52, 24s, §§ 1,^
ward's estate to any widow entitled thereto, and may appoint an ap-
praiser of real estate on an execution either against or in favor of his
ward.
Sect. 21. If a minor who has a father living, has property sufficient Property ormi-
for his maintenance and education in a manner more expensive than {"hJ; "s'lj'viw'
the father can reasonably afford, regard being had to the situation of when appUed'.toi
the father's family and to all the circumstances of the case, the expenses r'.^s."™ §"; !
of the maintenance and education of such child may be defrayed out of i»m. 88-
46* 69 J
546
GUARDIANS AND WARDS.
[Chap. 109.
6 JohnB. R. snfi.
2 3Ia88. 113,415.
4 MasB. 97.
Courts may au-
thorize Bales of
stocks, &c., aud
investments.
K. S. ru, § 21.
By order of S.
J. C. guardian
may transfer
property of
ward removing
from state.
1858, 117.
Removal, resig-
nation, aud
death, of guar-
dian.
K. S. 79, § 22.
11 Met. 104.
4 Gray, 03.
Marriage of fe-
male guardian
e.\tinguiaiies
autliority.
18.37, 171, § 1.
"Wards, when
and liow dis-
cliarged from
guardianship.
U. S. 79, § 23.
Sureties may he
discharged and
new bond re-
quired.
K. S. 79, § 24.
See Ch. lol,
§§ 15-18.
Bonds may be
sued. Proceed-
ings.
K. S. 79, § 23.
19 Pick. 403.
21 Pick. 31).
See Ch. 101.
Action against
surety limited,
&c.
R. S. 7<l, § 2S.
9 Cush. 09.
Proceedings for
recovftrinjr ef-
his o-^VTi propert)', in whole or in part, as shall be deemed reasonable by
the probate court ; and when necessary, his real estate may be sold for
that purpose by the guardian, upon obtaining license thei'efor as pro-
vided in other cases of sales by guardians. The charges for such ex-
penses may be allowed in the settlement of the accounts of the
guardian.
Sect. 22. The probate courts in the several counties, or the supreme
judicial court, on the application of a guardian or any person interested
in the estate of a ward, after notice to all otlier persons interested there-
in, may authorize or require the guardian to sell and transfer any stock
in the public funds, or in any coi-poration, or any other personal estate
or effects held by him as guardian, and invest the proceeds thereof and
all other moneys in his hands, in real estate, or in any other manner that
shall be most for the interest of all concerned. Said courts respectively
may make such further order and give such directions as the case may
require, for managing, investing, and disposing of, the estate and effects
in the hands of the guardian.
Sect. 23. When a person under guardianship removes out of this
state, his guardian may pay over and transfer the whole or any part of
his property to any guardian or trustee, appointed by competent author-
ity in the state to which the residence of the ward is removed, upon
such terms and in such manner as the supreme judicial court, sitting in
any county, upon bill or petition filed therefor, shall decree.
Sect. 24. When a guardian, appointed either by a testator or by the
probate court, becomes insane or otherwise incapable of discharging his
trust, or evidently unsuitable therefor, the court, after notice to liim and
all others interested, may remove him. Upon the request of a guar-
dian, the probate court in its discretion may allow him to resign his
trust. Upon such removal or resignation, and upon the death of a
guardian, another may be apj>ointed in his stead.
Sect. 25. When a female guardian marries, her husband shall not be
guardian in her right, but the marriage shall extinguish her authority,
and the other guardian, if there is any, may proceed in discharging the
trust. If there is no other guardian, the probate court may appoint one
or make such other order in the jiremises as the case requires.
Sect. 26. The marriage of a female under guardianship as a minor,
shall discharge her guardian from all right to her custody and education,
but not to her property ; and the guardian of an insane person or spend-
thrift may be discharged by the probate court, on the application of the
ward or otherwise, when it appears that such guardianship is no longer
necessary.'
Sect. 27. The supreme judicial court ami the probate court may re-
quire a new bond to be given by a guardian, and may discharge sureties
fiom future responsibility, in like cases and ujion like terms and con-
ditions as are prescribed in chapter one hundred and one with regard to
bonds and sureties of executors and administrators.
Sect. 28. Bonds given by guardians may be put in suit by order of
the probate court, for the use and benefit of the ward or any person in-
terested in his estate. The jiroceedings in such suit shall be conducted
in like manner as is provided with respect to suits on the bonds of
executors or administrators.
Sect. 29. No action shall be maintained against the sureties in a
bond given by a guanlian, unless commenced within four years from
the time the guardian is discliarged ; but if at the time of such discharge
the person entitled to bring such action is out of the state, it may be
commenced at any time within four years after his return.
Sect. 30. Upon comjilaint to the probate court by a guardian, ward,
creditor, or other person interested in the estate of a ward, or by a per-
Chap. 110.]
ADOPTION OF CHILDREN.
547
son having claims thereto in expectancy as heir or otherwise, against ffcta concealed,
any one suspected of having fraudulently received, concealed, embezzled, 'i{'''g ~g^ § 07.
or conveyed away, any of the money, goods, effects, or other estate, as I'^sr, 7i,§2.
well real as personal, of the ward, the court may cite and examine such see ch. 9c§6.
suspected person, although he is the guardian, and proceed with him, as
to such charge, in the manner provided respecting persons suspected of
fraudulently receiving, concealing, or embezzling, the estate of a deceased
person.
Sect. 31. Every guardian shall be allowed his reasonable expenses CompenBation
incurred in the execution of his trust, and shall have such compensation k.^''79*^2;
for his services as the court deems just and reasonable.
CHAPTER 110.
OF THE ADOPTION OF CHILDREN AND CHANGE OF NAMES.
adoption of children.
Section
1. Petition for adoption of a child.
2. Consent thereto must be given by parents,
&e.
3. when either parent is Insane, &o.
4. Proceedings if parent does not consent.
5. Consent by cliild.
6. Proceedings, and decree of adoption.
7. Rel.ition and rights between child and
parents by adoption.
Sectios
8. Rights of natural parents taken away, &o.
9. Appeals.
10. When decree may be reversed.
CHANGE OP NAMES.
11. Change of names, how lawfully made.
12. Notice and certificate.
13. Change of child's name in case of adoption.
14. Returns of changes of names, to be mado
&c.
ADOPTION OF CHILDREN.
Section 1. Any inhabitant of this state may petition the probate Petition for
court in the county of his residence for leave to adopt a child not his "liHa''"" °*^ *
own, and, if desired, for a change of the child's name; but the prayer iwi, 324, §§1,4.
of such petition by a person having a husband or wife shall not be see §"!.•).
granted unless the husband or wife joins therein.
Sect. 2. The parents of the child, or the survivor of them, shall. Consent there-
except as herein provided, consent in writing to such adoption. If nei- en by" parenlsl
ther parent is living, the guardian of the child, or if there is no guardian, &<•,■
the next of kin in this state, may give such consent; or if there is no 1852/202.
next of kin, the court may appoint some suitable person to act in the ^'^'^' *'•
proceedings as next friend of the child, and to give or withhold sucli
consent.
Sect. 3. If either parent is insane, or imprisoned in the state prison or when either
a house of correction under a sentence for a term not less than three ^'J.'^™ ismsane,
years, or has wilfully deserted and neglected to provide proper care and Jg^Mi'v ,
maintenance for the child, for one year next preceding the time of filing
the petition, the court shall proceed as if such jiarent were dead, and in
its discretion may appoint some suitable person to act in the proceedings
as next friend of the child, and give or withhold the consent afore-
said.
Sect. 4. If a parent does not consent to the adoption of his child. Proceedings if
the court shall order a copy of the petition and order thereon to be Pousrat!"^^ ""^
served on him personally, if found in the state, and if not, to be pub- i869, ei, §2.
lished once a week for three successive weeks, in such newspaper printed
in the county as the court directs, the last jsublication to be at least four
548
CHANGE OF NAMES.
[Chap. 110.
Consent by
child.
1851, 321, §3.
Proceedings,
and decree of
adoption.
1851, 32i, § 5.
Kel.ition and
riL,^Iit9 between
cliild and par-
ents by adop-
tion.
1851, 324, § 8.
Rights of natu-
ral parents ta-
ken away, &c.
1851, 334, § 7.
Appeals.
1851, 324, §8.
When decree
may be re-
versed.
1859, 61, § 2.
•weeks before the time appointed for the hearing. Like notice shall also
be published when a child has no parent living, and no guardian nor next
of kin in this state. The court may order such further notice as it
deems necessary or proper.
Sect. 5. If the child is of the age of fourteen years or upwards, the
adoption shall not be made without his consent.
Sect. 6. If, upon such petition so presented and consented to, the
court is satisHed of the identity and relations of the persons, and tliat
the petitioner is of sufficient ability to bring up the child, and furnish
suitable nurture and education, having reference to the degree and con-
dition of its parents, and that it is tit and jiroper that such ado])tion
should take effect, a decree shall be made setting forth the focts, and
ordering, that from the date of the decree the child shall to aU legal in-
tents and purposes be the child of the petitioner.
Sect. 7. A child so adopted shall be deemed, for the purposes of in-
heritance by such child and all other legal consequences and incidents
of the natural relation of parents and children, the child of the parents
by adoption, the same as if he had been born to them in lawful wedlock ;
except that he shall not be cajjable of taking property expressly limited
to the heirs of the body or bodies of the parents by adoption, nor
property from the lineal or collateral kindred of such parents by right
of representation.
Sect. 8. The parents of such child shall be deprived by the decree
of all legal rights as respects the child ; and the child shall be fi-eed
from all obligations of maintenance and obedience as respects his
parents.
Sect. 9. Any petitioner may appeal to the supreme judicial court
fi-om the decree of tlie probate court on such petition, in like manner as
appeals may be taken from other decrees of that court ; and any child
made the subject of such petition may by a next fi-iend a]jpeal in like man-
ner ; but no bond shall be required or costs awarded against such child
or next friend.
Sect. 10. A parent who has not before the hearing upon a petition
for the adoption of liis child had personal notice thereof, may, at any
time within one year after actual notice, apply to the supreme judicial
court to xeverse the decree. Said court, after due notice, may in its
discretion reverse the same, if it ajipears that any of the material alle-
gations in the petition were not true.
Change of
names, how
lawfully made.
1851, 25ij, § 1.
SeeCh. 10r,§2.3.
Notice and cer-
tificate.
1851, 236, § 2.
Change of
child's name in
case of adop-
tion.
1854, 24.
CHANGE OF NAMES.
Sect. 11. Applications for change of names of persons maybe heard
and determined by the probate courts in the several counties. No law-
ful change of the name of a person, exce]it a woman n])on her marriage
or divorce, shall be made in this state, unless for sufficient reason con-
sistent with the public interest and satisfiictory to said court in the county
where the party resides.
Sect. 12. Before decreeing a change of name, except as is pro\'ided in
the following section, the court shall require public notice of the appli-
cation therefor to be given, that all persons may apjiear and show cause,
if any they have, why the same should not be granted. The court shall
also require ])ublic notice to be given of the change decreed, and on
return of proof thereof may grant a certificate, under the seal of the
court, of the name the party is to bear, and which shall thereafter be his
legal name.
Sect. 13. If in a petition for the adoption of a child, a change of the
child's name is requested, the court, u])on decreeing the adoption, may
also decree such change of name and grant a certificate thereof, without
the notices requh-ed by the preceding section.
Chap. 111.] masters, apprentices, and servants.
549
Sect. 14. Each judge shall annually in the month of December Retnrne of
make a return to tlie office of the secretary of the commonwealth, of namM to be
all chaniies of names made in his court under this chapter; and the 5^'f%*°54
same shall be published in a tabular fonn with the statutes of the sce cii. 3, § 1.
following year.
CHAPTER 111.
OF MASTERS, APPRENTICES, AND SERVANTS.
Section
1. Minors may be bound as apprentices or
Berviints.
2. how bound when under fourteen years.
3. when above fourteen.
4. overseers of poor may bind.
5. until what age and upon what terms.
6. Indenture to be of two parts, &c.
7. one part to be kept for minor.
8. Money, .tc., to be for use of apprentice.
9. Parents, selectmen, Ac, to inquire into
treatment of children.
10. Complaint for misconduct of master or ser-
vant may be filed in superior court, &o.
11. Court may discharjje apprentice, &c.
12. may award costs.
13. Master liable to action on indenture.
Section
14. By whom action may be broug:ht.
15. Proceedings therein when brought by over-
seers.
IG. Limitation of action by apprentice.
17. If judgment for plaiutilf, court may dis-
charge apprentice.
18. Apprentice absconding may be arrested
and returned or imprisoned.
19. Proceedings in sueli case.
20. Costs therein, of whom recoverable.
21. Apprenticeship discharged by death of
master.
22. Mistresses.
23. Common law right.
Powers and duties, in whom vested in
cities.
24.
Section 1. Children under the age of fourteen j'ears may be bound Minors may be
as apjirentices or servants until that age ; and minors above the age of prentleesorser-
fourteen years may be bound as a])]irentices or servants, females to the vants.
age of eighteen years or to the time of their marriage within that age, " ■ * ■ ^ •
and males to the age of twenty-one years.
Sect. '2. Children under the age of fourteen years maybe bound by how bound
their father, or in case of his death or incompetency, by their mother or fourteenyears.
legal guardian. If illegitimate, they may be bound by their mother R. s. rs, §§4,
during the lifetime of the putative father as well as after his decease, k. s. so, §2.
If they have no parent competent to act, and no guardian, they may 2 Mass. 109, 387,
with the approbation of the selectmen of the town where they reside,
bind themselves. The power of a mother to bind her children shall
cease upon her subsequent marriage, and shall not be exercised by
herself or husband during the continuance of such marriage.
Sect. 3. Minors above the age of fourteen years may be bound in
the same manner, but when bound by their parent or guardian, the
minor's consent shall be expressed in the indenture and testified by his
signing the same.
Sect. 4. A minor child who is, or either of whose parents is, charge-
able to a town as having a lawful settlement therein, or supported there ^{^"s.'sMe
at the expense of the state, may be bound as an apprentice or servant ? S''''h"V^o"o
by the overseers of the poor. 2 Pick.'isi.
Sect. 5. Such children, whether unrler or above the age of fourteen until what
years, may be so bound, females to the age of eighteen years or to the "v^J^tTcrms""
time of their marriage within that age, and males to the age of twenty- k. s. so, § 7.
one years ; and provision shall be made in the contract for teaching * "'^' ^"^
them to read, write, and cipher, and for such other instruction, benefit,
and allowance, either within or at the end of the term, as the over-
seers may deem reasonable.
Sect. 6. No minor shall be so bound unless by an indenture of two indenture to be
when above
fourteen.
K. S. BO, § 3.
SCush. 417.
overseers of
550
MASTERS, APPRENTICES, AND SERVANTS. [ChAP. 111.
of two parts,
i'C.
K. S. 80, §§ 4, 8.
One part of in-
denture to be
kept for miuor.
K. S. 80, §§5,8.
Money, Ac., td
be for use of ap-
prentice.
U. S. 80, § 9.
Parents, select-
men, &c., to in-
quire into treat-
ment of chil-
dren.
K. S. 80, § 10.
Complaint for
misconduct of
master or ser-
vant may be
filed in superior
court, i-tc.
K. S. 80, §§ 11,
22.
1850, 190.
2 Pick. 451.
Court may dis-
charge appren-
tice, &c.
K. S. SO, §§ 1-2,
Vi.
may award
costs.
K. S. 80, §§ 12,
13,23.
Master liable to
action on inden-
ture.
K. S. 80, § U.
By whom action
may be brought.
K. S. 80, § IS.
Proceedings
therein when
brought by
overseers.
U. S. 80, § 16.
parts sealed and delivered by both parties ; and when made with the
approbation of the selectmen, they shall certify such approbation in
wi'iting upon each part of tlie indenture.
Sect. 7. One part of the indenture shall be kept by the parent or
guardian executing it, for the use of the minor; and when made with
the approbation of the selectmen or by the overseers of the ])oor, shall
be deposited with the town clerk, and safely kept in his office for the
use of the minor.
Sect. 8. All considerations of money or other things paid or al-
lowed by the master upon a contract of service or apprenticesbij) made
in pursuance of this chaiiter, shall be paid or secured to the sole use of
the minor bound thereby.
Sect. 9. Parents, guardians, selectmen, and overseers, sh.all inquire
into the treatment of all chihlren bound by them resj:>ectively or with
their approbation, and of all bound by or with the approbation of the
predecessors in office of any of them, and defend them from aU cruelty,
neglect, and breacli of contract, on the part of masters.
Sect. 10. Cotni>laiiits by i)arents, guardians, selectmen, or overseers,
for misconduct or neglect of the master, and by the master, for gross
misbehavior, or refusal to do his duty, or wilful neglect thereof on the
part of the apprentice or servant, may be filed in the superior court
in the county where the master resides, setting forth the fiicts and cir-
cumstances of the case. The court shall order notice to the adverse
party, and if the comjilaint is by tlie master, to all ]iersons who liave
covenanted in behalf of the a])preiitiee or servant, and to the selectmen
who apjiroved of the indenture, or tlieir successors in office, and shall
hear and determine the case with or without a jury, as the allegations of
the parties may require.
Sect. 11. The court may render a judgment or decree, that the
minor be discharged from his apjirenticeship or service, or the master
from his contract, and the minor thus discharged may be bound out
anew.
Sect. 1'2. Costs may be awarded to the prevailing party and execu-
tion issued therefor; but no costs shall be awarded against selectmen
or overseers, unless it appears that the com]ilaint was made without
just and reasonable cause. Costs in favor of the master may be recov-
ered of the parent or guardian who executed the indenture, or if there
is no parent or guardian liable therefor, such costs may be recovered in
an action against the minor when he arrives at full age.
Sect. 13. Every master shall be liable to an action on the indenture
for the breach of any covenant on his ]iart therein contained. All dam-
ages recovered in such action, after deducting the necessary charges in
prosecuting the same, shall be the projierty of the minor, and may be
applied and appro]iriated to his use by the person who recovers the
same, and the residue sliall be paid to the minor, if a male, at the age
of twenty-one years, and if a female, at the age of eighteen years, or at
the time of her marriage within that age.
Sect. 14. Such action may be brought by the parent or his execu-
tors or administrators, tlie guardian, or any one who succeeds him in
that trust, or the overseers or their successors in office ; or it may be
brought in the name of the minor by his guardian or next friend, as the
case requires ; or by himself after the expiration of the term of appren-
ticeship or service.
Sect. 15. If the action is brought by the overseers, it shall not abate
by the death of any of them, or by their being succeeded in office ; but
shall proceed in the names of the original plaintiffs, or the survivor of
them, or the executors or administrators of the survivor ; and the money
recovered therein shall be deposited in the city or town treasiuy to be
applied and disposed of as provided in section thirteen.
Chap. 111.] masters, apprentices, and servants. 551
Sect. 16. Xo such action sli;\ll be maintained, unless commenced Limitation of
during the term of apprenticeship or service, or within two years after pWuticc!^ "''
the expiration thereof. **■ S- *". § i"-
Sect. 17. If judgment in such action is rendered for the plaintifij the if judprment for
court may upon motion of the phiintifl' discharge the minor from his ill'Iy'di^cha"^
apprenticeship or service, if not already done as before pro%'ided, and appruntice.
the minor may be bound out anew. • • . 5 •
Sect. 18. If an apprentice or servant, bound as aforesaid, unlawfiilly Approntioo ati-
departs from the service of his master, any jjolice court or justice of the hri!nvKt.!'i','ana
peace, upon complaint on oath made by the master or any one in his rLturuoci or im-
behalt; may issue a warrant to apprehend the apprentice or sen'ant and k"s!"m),'§i9.
bring him before the court or justice. If the comjilaint is supported,
the court or justice may order the otiender to be returned to his
master, or commit him to the jail or house of correction for a tenu
not exceeding twenty days, imless sooner discharged by his master.
Sect. 19. The warrant when directed to an officer or other person Proi-eodings in
by name, shall authorize him to convey the oflender to the place of res- k.'^s.'so.'s 20.
idence of the master in any county in the state.
Sect. 20. AU costs incurred in such process against a servant or ap- costs therein,
prentice, shall be paid in the first instance by the complainant. If the eraWe"" "^"^""^
complaint is supported, the costs may be recovered by the master in an R- s. so, §21.
action on the indenture, if executed by a parent or guardian, and if
recovered against a guardian, he may charge the amount paid by him
in his guardianship account. If the indenture was executed by over-
seers of the poor, or the minor with the approbation of the selectmen,
the costs may be recovered in an action against the minor after he
arrives at full age.
Sect. 21. No indenture of apprenticeship or service made in pursu- A.pprcntice8hip
ance of this chapter shall bind the minor after the death of his master, deTt'i'i'ofriiaster.
but the ai)]irenticeshi]) or service shall be thenceforth discharged, and k. s. so, § ai.
the minor may be bound out anew.
Sect. 22. AU the foregoing provisioixs shall apply as well to mis- Mistresses.
tresses as to masters. ^- ^- **' ^'■^•
Sect. 23. Nothing contained in this chapter shall affect the father's Common law
right at common law to assign or contract for the services of his chil- n's.'so, §26.
dren durino' their minoritv. s Johns. R. 328. 3B. &a. 5S6. lAshm. 26". 7Mass. i4r. i Mason, rs.
Sect. 24. Every thing prescribed in this chapter to be done by the Powers and du-
selectmen of a town, shall and may be done by the mayor and alder- vestoi'in cSiee.
men of a city; and every tiling prescribed to be done by the overseers R-S. so, §27.
of the poor of a town, shall and may be done by the overseers of the
poor of a city, or the directors of the house of industry, or such other
officers as have charge of the poor therein.
PART III.
OP COURTS AND JUDICIAL OFFICERS AND
PROCEEDINGS IN CIVIL CASES.
TITLE I.
OF COURTS AND JUDICIAL OFFICERS.
Chapter 112. — Of the Supreme Judicial Court.
Chapter 113. — Of the Supreme Judicial Court — Equity Jurisdiction.
Chapter 1 14. — Of the Superior Court.
Chapter 115. — Of Matters common to the Supreme Judicial and Superior Courts.
Chapter 116. — Of Police Courts.
Chapter 117. — Of Probate Courts.
Chapter 1 18. — Of Courts of Insolvency.
Ch,\pter 119. — Of Judges and Registers of Probate and Insolvency.
Chapter 120. — Of Justices of the Peace.
Chapter 121. — Of Clerks, Attorneys, and other Officers of Judicial Courts.
Chapter 122. — Special Provisions respecting Courts and the Administration of
Justice.
CHAPTER 112
OF THE SUPREME JUDICIAL COUKT
Section
1. Number of jufitices.
2. Quorum in court of law.
3. General superintendence of inferior courts.
May issue writs of error, &c.
4. Majority of justices may remove certain
offic4?r8.
5. Wliat trials, Ac, to be heard, &c., by full
court.
6. Jurisdiction, g-eneral.
7. of actions removed from superior court.
8. Single justice may arraign in capital case,
and sentence, if, &c.
9. may assign counsel, &c. Exceptions.
10. may reserve questions of law, &c.
11. Cases reported by superior court, appeals,
Ac, to bo entered at next law term in
county, unless, A-c. Questions reserved to
be heard, Ac, by full court.
12. Records, Ac, to contain brief statement of
grounds of decision ; to be published, if, Ac.
13. Proceedings when exceptions are frivolous.
Secttov
H. Judgment, when exceptions are allowed,
may be vacated.
15. Proceedings on appeals, or other issues of
law.
16. If appeal is not entered, adverse party may
enter complaint, Ac.
17. Entry of appeal omitted, Ac, may be al-
lowed on petition. No security to be re-
vived thereby. ^
18. Powers of four justices at jury term ; of
single justice at law term.
19. Court for capital trials, where no law term
is established.
20. how to be convened.
21. Special term, when held for that purpose.
22. how notified, Ac Proceedings thereat.
23. What business may be transacted at euch
term.
24. Indictments for capital ofTcnces in Dukes
County to be tried at court in Barnstable.
25. Special term in such case.
(552)
Chap. 112.]
SUPREME JUDICIAL COURT.
553
Sectio-v
26. Law term of court for the commonwealth.
What questious entered and determined
therein.
27. Law terms for other counties, where and
when Iield. Law terms to be terms for
return of process, &c. But no jury to be
summoned uuless, &c.
28. Jury terms, when and where held.
29. Writs, &c., to be sued out of clerk's office
in county, &c., and returnable to full court.
30. Suits, &c., arising in Dukes County, to be
tried, &c., in Barnstable.
31. Judgments, how entered in actions contin-
ued nisi.
32. Liability of security to be computed from
time of such entry.
Section
33. Questions of law, how to be entered.
34. At law term in Boston, questions of law to
be in order for argument within five days
after entry.
35. Questions on appeals, Ac, in superior court
in eriniinal cases, !iow entered, &c.
36. when to be in order, &c., for argument.
37. Questions may be heard ex parte, when,
&c. ; or passed upon without argument, or
postponed.
38. Construction of" the court."
39. Court for the commonwealth to audit ac-
counts, &c.
40. Salaries of justices.
41. Compensation of officers.
Section 1. There shall be one chief justice, and five associate jus- Number of jus-
tices of the supreme judicial court. il!?'''i27 §i
Sect. 2. Four justices shall constitute a quorum to decide all matters Quorum in
requiring to be heard by a court of law. "^'J. I'-w. § *j. u%^°l^^'^{
Sect. 3. The court shall have general superintendence of all courts ocnirni'suppr-
of inferior iurisdiction to coiTect and prevent errors and abuses therein, mt' 'vi'-nei- of
, •' , , . 1 . 1 T T ■ ... Ulterior <-ourt8.
Where no other remedy is expressly ])rovide<l, and may issue writs oi .May issue writs
error, certiorari, mandamus, prohibition, quo warranto, and all other jj ^J!!''"'^'^ 5_
writs and processes to courts of inferior jurisdiction, corporations, and iwo, isfi, § 38.
individuals, necessary to the furtherance of justice and the regular e.\e- scush. 214.
cution of the laws. " scush!'''!'*"*''
Sect. 4. A majority of the justices may remove from office the clerks Majority of jus-
of the courts or of their own court, when in their judgment the public tices may rc-
j . , , 1 1 .,1 .... ,1 move certam
good requires such removal ; and on bill, ]ietition, or otlier process, a officers.
majority of them may remove any clerk of the suj)erior court or of a jjolice JSlj' II''' 5 "•
court, any commissioner of insolvency, sheriS", register of probate and
insolvency, or district-attorney, if sufficient cause is shown therefor and it
appears that the jiublic good requires it ; and a summary hearing may
be had u]ion bill, jietition, or other proees.s, in term time or vacation.
Sect. 5. Trials of indictments for cajiital crimes; questions of law Trials, &c., by
on exceptions, on a])]ieals from the superior court, on cases stated by the {"'l;''"'!''* 13.
p.arties, and on special verdicts; and all issues in law, shall be heard and k. .s. i.ni, §22.
determined by the full court. i**s9, 282. 2 Met. 376. is^a, 1%.
Sect. 6. The court shall have original and exclusive jurisdiction of .Jurisdiction,
petitions for divorce and nullity of marriage, and original and concur- f™"jj; 57
rent jurisdiction with the superior court, of petitions for partition and is4o, 87, §1.
wilts of entry for foreclosure of mortgages, and of civil actions in which iM^^hai §2.'
the damages demanded or property claimed exceed in amount or value j'^vi' J.'ir.^lab^'
four thousand dollars if brought in the county of Sulfolk, and one thou- li .Met. jro.
sand dollars if brought in any other county, if the ])laintift', or some one ii'Mei^l;,-!.
in his bt'half, before service of the writ, makes oath or affirmation before - cus'i- i.'H-
some justice of the peace that he verily believes the matter sought to be .se'eCh. iW,
recovered actually equals in amount or value said sums respectively; a §§5,7.
certificate of which oath or affirmation shall be indorsed on or annexed
to the writ.
Sect. 7. The court shall have jurisdiction of all actions and proceed-
ings at law, made returnable to the superior court and removed to the
supreme judicial court or transmitted to it under the provisions of chap-
ter one hundred and fourteen.
Sect. 8. A ]ierson indicted for a capital crime may be arraigned be-
fore the court held by one justice, and if he pleads guilty, such court
may award sentence against him according to law. ^*^'^< ""''• ^-- - ^i"^"- 3f'3.
Sect. 9. If the prisoner in such ease does not jilead guilty, the court
may assign him counsel and take all other measures preparatory to a mayas's'iga
47 70
ofrfiotions re-
moved from su-
perior rourt.
ISolt, 1%.
Wliat justice
may do in cap-
ital case.
K. S. 81,§15.
11. S. 1.30, §21.
.Siiifile justice
554
SUPREME JUDICIAL COURT.
[Chap. 112.
counsel, S:c.
Exceptions.
11. S. 81, § Ifi.
R. S. 136, § 22.
1S59, 196, aw.
5 Cush. 3«6.
may reserve
questions of
law, &c.
K. S. 81, § 26.
1839, 196.
1859, 282, § 1.
Cases reported
by superior
oourt, appeals,
&c., to be enter
ed at next law
term in county,
unless, &c.
Questions re-
served to be
heard, itc., by
full court.
R. S. 81, §§ 29,
30.
1859, 196.
Records, &c., to
couL-du brief
statement of
grounds of de-
cision ; to be
published if,
1859, 195, § 48.
Proceedings
when excep-
tions are friv-
olous.
R. S. 81, §31.
H. S. 82, § 10.
Judgment,
when excep-
tions are allow-
ed, may be va-
cated.
R. S. 81, §32.
Proceedings on
appeals, or ^th-
er issues of law.
R. S. 82, § 13.
1859, 196, § 4S.
4 Gray, 5r2.
If appeal is not
entered, adverse
trial, to be had before the full court. And upon such trial, exceptions
may be taken by the defendant and questions of law reserved, to be heard
like exceptions taken in trials before a single justice ; but if the exceptions
are in the opinion of the court frivolous and intended for delay, the court
may overrule them, and forthwith render final jmlgment and pass sen-
tence. And after a decision upon any exceptions, the judgment may be
entered and sentence jiassed, or preliminary jiroeeedings tor a new trial
may be had, in the court held by a single ju.stiee.
Sect. 10. Questions of law, whether arising upon a trial or other
proceeding, or upon a motion for a new trial on account of an ojiinion,
tlirection, order, or refusal, of a single justice in matter of law, may be
reserved for the consideration of the full court, and so much of the case
as is necessaiy for understanding the question shall be reported for that
purpose.
Sect. 11. Cases reported by the superior court for determination by
the supreme judicial court, questions arising upon appeals from the de-
cisions of the superior court in matters of law, and upon exceptions to
the opinions, rulings, orders, and decisions, of the court, whether allowed
by that court or by the .supreme judicial court u])on petition, shall in
those counties in which there is a law term, be entered at the term nest
to be holden for the county, unless otherwise .agreed by the parties or
ordered by the superior court upon the allowance of exceptions under
the provisions of section thirteen of chapter one hundred and fifteen.
U])on exce])tions allowed or questions reserved in any of the modes pro-
vided, the same shall be heard and detennined by the full court ; and
such judgment or other proceedings shall be had therein as law and
justice require. And the full court shall, as soon as may be after the
decision of the questions submitted to it, make such order, direction,
judgment, or decree, as is fit and proper for the further disposition of the
case, and enter the same, or cause a rescript, containing a brief statement
of the grounds and reason of the decision, to be filed therein.
Sect. 12. The records and rescripts made upon the decision of
questions arising in any of the modes mentioned in the two preceding
sections shall contain a brief statement of the grounds and reasons of
the decision ; and if no further opinion is written out within sixty days,
the reporter shall publish the case with the opinion contamed in such
record or rescript.
Sect. 13. li', upon the hearing of a case brought before the court
upon exceptions alleged, it appears that the exceptions are frivolous,
immaterial, or intended for delay, the court may award against the party
taking the exceptions double co.sts from the time when the same were
alleged, and also interest from the same time, at the rate of twelve per
cent, a year on any sum found due for debt or damages; or may award
any part of such additional costs and interest.
Sect. 14. If judgment has been rendered in any ease in which excep-
tions are allowed, the judgment may be vacated by the full court without
a writ of error, and as if it had been entered by mistake at the same
term at which it is so vacated, and thereupon such further proceedings
shall be had in the case as law and justice require.
Sect. 15. In cases where questions are entered in the court upon
a]i]ieal, or other issue of law, the court may affirm the former judgment
with additional damages, at the rate of six per cent, a year, or reverse
the same in whole or in jiart, or order the case to be brought uj), entered,
and a new trial had, and may enter such judgment, order, or decree, and
take such other order therein as the superior court ought to have done,
and shall cause such other proceedings to be had in the case as law and
justice require.
Sect. 16. If a party who has taken an appeal, or an exception which
has been allowed, neglects to enter the question in the supreme judicial
Chap. 112.] supreme judicial court. 555
court, the .adverse party m.iv enter a comijlaint and have the judgment, partv may enter
opinion, ruling, or oidJr, aliinne.l. iri'.''^;'| it."'
Sect. 17. If by mistake or accident a question arising upon an appeal, -^ Cusb. 57.
or upon exceptions in the superior court, is not duly entered in the omlttod'^ic'"'^
supreme judicial court, or if, for a like reason, a comjdaint founded on may he allowed
an omission to enter such question has not been entered by the adverse seiurit'y toiw "
party, the court, upon petition filed within one year after the question rewvud there-
or complaint should have been entered, and upon such teiTns as it deems k. .s. si,|f :>4,
just and reasonable, may allow the party taking the ajipeal or exception ^j,f' ,9^
to enter the question, or the adverse party to enter his complaint, as the 4 Jiet. sri.
case m.iy be; and when so entered the court shall proceed therein as ^CuBh. 501.
if it had been entered at the proper term. But no security by bond,
attachment, or otherwise, discharged by the omission of either party to
enter the question or complaint, shall be revived and continued in force
by the entry of such question or complaint.
Sect. 18. Four or more justices present at a jury term shall have Powers ofjus-
and exercise the powers of a full court; a single justice present at a law a,H'i\i,V{J5,^a.
terra shall have and exercise the same authority as at a jury temi. K..S. 8i,§38.
Sect. 19. If an indictment for a capital offence is pending and for s'^cusIkws. '
tilal in a county in which there is no law term establislied, the justices Capital trials,
J . . ? .» wliero there is
shall hold a session in such county for the trial thereof no law term.
Sect. 20. The chief justice upon receiving notice of the pendencj- |t;vj,' ui; ^ssa.
of such an indictment shall take measures for convening a quorum of court, how to
the justices for the trial at the stated term of the court in the county, or j";' l""^,*^^"^"?;
at an adjournment of such term ; which trial shall be had as soon atter issa, luc, ata.
the finding of the indictment as the other official duties of the justices
admit, and the circumstances of the case require.
Sect. 21. If a session of the court is not to be held in the county .Special term,
within six months after the finding of the indictment, a special term ,",^1 pllrposc'^
may be held for the pui-}>ose by the full court at such time and place as h. s. si, §«.'
a majority of the justices may, by an order in writing under their hands, "^'''' '' ' *^'
directed to the sheriff of the county, determine.
Sect. '2'2. The sheriff shall give notice of the intended special terra, how notified,
by ])osting a copy of the order on the door of the court house, or by f;!:;^ thSe^"^'
publishing the same in such other manner as therein directed ; and the u.°s. 6J,§-h.
clerk for the county shall issue venires for jurors, and he and all other *^ ' ' '
officers shall do all tilings necessary or proper in relation to such term,
as at a stated term.
Sect. 23. The court assembled at such special terra shall have and what business
exercise the same powers as at a stated term, except that no party in ",'.','J(] at"S?h
any civil action pending in the court sh.ill be required to attend at tV™,,,
such tei-ms, be defaulted or suffer any other penalty for not attending 1^1X196,282.'
thereat.
Sect. 24. An indictment for a capital offence found in the county of capital indict-
Dukes County, shall be tried at a court to be held in the county of ".'."'ta'tried'ta"'
Barnstable ; and the court for that purpose shall be convened and held Uamstabie.
and all the proceedings in relation thereto conducted as when held in ig59,"i96,282'.
the county where an indictment is found.
Sect. 25. If a special term is required to be held in the county of si^'cjai term in
Barnstable for the trial of an indictment found in the county of Dukes k.'^I. 8'f^'^§47.
County, a written order shall be sent to the sheriff of each of said conn- ifcoii, m, ass!
ties, and each of them required to do in his county whatever is necessaiy
or proper in relation to such term.
Sect. 26. A law term of the court for the commonwealth shall be Law term of
held at Boston on the first Wednesday of January of each year, which ("i^momveiith.
maybe adjourned from time to time to places and times most conducive what quistions
to the despatch of business and the interests of the public ; and there li'V^nedTherc-
shall be entered and determined therein questions of law arising in the '".^
counties of Barnstable, Bristol, Dukes County, Essex, Middlesex, Xan- ocu6h.'4»i. '
556
SUPREME JUDICIAL COURT.
[Chap. 112.
Law t^rms for
otlier countit's.
wliou ami wMktc
held.
iss'.i, nil'., § :ji;.
Berkshire.
Franklin.
Hampden.
Hampshire.
"Worcester.
Law terms to
be terms for re-
turn of process,
&c. But uo jury
tobesumiiiuued
unless, &»-.
6 Cush. ^'M.
Jury terms,
when and where
held.
K. S. 81, §§ 12,
.W.
1859, 19r., § 5(i.
Barnstable and
Dukes.
BerkBhire.
Bristol.
Essex.
Franklin.
Hampden.
Hampshire.
Middlesex.
Nantucket.
Norfolk.
Plymouth.
Suffolk.
Worcester.
1859, 27-1.
Writs, Ac, to
be sued out of
clerk's office in
county, ttc.,!ind
returnable to
full court.
B. S. 81, §53.
tnckct, Norfolk, PljTnouth, ancl Suffolk; .ind also all questions of law
arising in other counties where s|iecial jirovisions are not made therefor.
Sect. 27. For entering and Iiearing questions of law arising in the
following counties, law terms shall be held as follows: —
For the county of Berkshire, at Lenox, on the first Tuesday of Sep-
tember :
For the county of Franklin, at Greenfield, on the first Monday after
the first Tuesday of September :
For the county of Hampden, at Springfield, on the third Monday after
the first Tuesday of Septemlier :
For the county of Hampshire, at Northampton, on the second Mon-
day after the first Tuesday of September:
For the county of Worcester, at Worcester, on the fourth Tuesday
after the first Tuesflay of September.
These terms shall be taken to be terms for the return of process, entry
of appeals, trials, and for all purposes for which a court may be lield by
a single justice in the county in which the court is held ; but no jury
shall be summoned for such terms unless an order therefor shall be
issued by the justices of said court, or one of them, directed to the clerk
of said county. Cases which may have arisen or which may be pending
in the counties of Berkshire and Franklin, when the provisions of this
chapter take effect, shall have day and be cognizable in said counties
respectively at the aforesaid terms : persons, processes, and matters, shall
be held and answerable accordingly.
Sect. 28. Jury terms of the court shall be held by a single justice
every year at the times and places following, and the presiding judge
thereat shall have and exercise all the powers not expressly reserved to
the full court : —
For the county of Barnstable and Dukes County, at Barnstable, on
the first Tuesda}^ of May :
For the county of Berkshire, at Lenox, on the second Tuesday of
May :
For the county of Bristol, in alternate years at New Bedford and
Taunton, beginning at New Bedford on the second Tuesday of Novem-
ber :
For the county of Essex, at Salem, on the third Tuesday of April :
For the coufity of Franklin, at Greenfield, on the second Tuesday
of April :
For the county of Hampden, at Springfield, on the fourth Tuesday of
April :
P'or the county of Hampshire, at Northampton, on the third Tuesday
of April :
For the county of Middlesex, at Lowell, on the third Tuesday of
A])ril :
For the county of Nantucket, at Nantucket, on the first Tuesday of
July :
For the county of Norfolk, at Dedham, oh the third Tuesday of Feb-
ruary :
For the county of Plymouth, at Plymouth, on the second Tuesday
of May :
For the county of Suffolk, at Boston, on the first Tuesdays of Octo-
ber and April :
For the county of Worcester, at Worcester, on the second Tuesday
of April.
Sect. 29. Writs and processes in suits cognizable by the full court,
pxce]it original writs ordered by the court, shall be sued out of the
clerk's office of the county in which the matter is pending, and be re-
turnable to the full court.
Sect. 30. Any suit, matter, or thing, arising or pending in the county
Chap. 112.] supreme judicial court. 557
of Dukes County cognizable by tlie supreme judicial court and to be Snita, a-c, aris-
heard before a single justice, shall be entered, heard, tried, and deter- l;','7,i''iiy'"o''i^e
mined, at the court held in the county of Barnstable, in all respects as if ''■'^■.''' *'j;' '"
the same court were held in the county of Dukes County ; and all mat- u. s. si, §"50.
ters cognizable by the full court, arising or pending in the county of
Dukes County, shall be heard and determined as if arising in the county
of Barnstable.
Sect. 31. If an action is continued nisi from any term, either for .Tiui^'monfs,
argument or advisement, and is determined by the court before the next '^,'-t",„'is'coiitin°
term in the same county, the judgment, by order of the court on the mo- "fii nisi.
tion or at the request of the party prevailing, may be entered as of the 7Gray,3«5. '
then last term of the court in the county where the action is jiending,
whether it be a law term or not. If the action is pending in the superior
court the rescript may direct the clerk to enter judgment as of the last
term in that court.
Sect. 32. The clerk in such case shall note on his docket the time of Liability of se-
receiving such order, and when the order is for final judgment in fiivor ™,"'j;\,{"fi'"froin
of the plaintiff, the security in the suit, whether by bail or otherwise, tini.orBucli
shall be held for the same time thereafter that it would be held after the i". s.'si, §53.
entry of judgment in the usual manner.
Sect. 33. All questions of law arising at the same term in each Questions of
county, excepting the counties mentioned in section twenty-seven, shall ^n'rl"™ '° ""^
be entered in their order in the court, and in the order of time, as nearly i»j'J. luo, §44.
as may be, of the final adjournment of the terms at which the questions
arise ; and if any s]iecial proceeding comes before the court from any
county requiring entry, it shall be entered, with the questions from such
county which are entered nearest the day of the incciiti(.)n of such pio-
ceeding, and all entries shall be made forthwith upon receijit of the
papers. And questions of law arising in the superior court in said coun-
ties shall be entered with the questions of law pending in the su])reme
judicial court for such counties respectively; and the clerks of the
courts for said counties shall prepare the proper papers for their respec-
tive counties.
Sect. 34. At the law tenn held in Boston, all questions of law shall At law term in
be in order for argument within five days afte» their entry upon the ,'|o,fs°oi' iTw to
docket of the full court, and be argued when reached, in their oi'der, by bo in ortiw for
either party ready to do so, unless the court, for good cause shown, post- fnlh-e'days^'
pones the same. a^^^ ^^/h^
Sect. 35. Questions arising upon appeals and exce])tions in the Qupstion'sonap-
superior court in criminal cases, and all processes and other proceedings pe"i»,&i-.,iii,Bu-
in such cases, which may lawfully come before the court at the law tenn crin"ini'ii"oi808,
aforesaid, shall be entered upon the criminal docket, and be jiroceeded ^°" uutcred,
in and determined, and such judgment, order, or decision, made, as to
law shall appertain. And such rescript, writ, or process, shall be issued
thereon as the case may require.
Sect. 36. At any time after five days from the entry thereof, all such wbon to be ia
criminal cases shall be in order and have precedence for argument on arJJumcnt.' *"'
such day in every month in which the court shall be in session, as the iwo, i96, §46.
court may designate ; and the arguments shall be continued till such
cases are disposed of, and shall not be postponed except for special cause
shown.
Sect. 87. The court may hear any question ex parte when it is reached Qnestions may
in the order of the docket and only one party is ready for argument ; b„'.i""whOT,
or if neither party is ready, the exceptions may be passed upon by the &(■• ; or jiassed
court without argument, or the case may be postponed when any special "J"n'imLMit! or
reason exists therefor; but no case that has been post]ioned shall be ■'^-f'','!','"'!'.,
again in order for argument until all the questions ready lor argument ' ''
have been argued, ])ost|>oned, or otherwise disposed of
Sect. 38. If no designation is made, the words "the court" may be of "\bie court."
47*
558
SUPREME JUDICIAL COUBT — EQUITY. [ChAP. 113.
Court for the
commonwealth
to audit ac-
counts, &c.
Salaries of jus-
tices.
Bed. of Ri^'lits.
Art. Hit. K. S.
HI, §fil. 183(>, 10.
See Ch. 15, § 30.
Compensation
of officers.
1S58, IW.
construed to mean the fiill court or a court liold l)y one justice, as the
context or subject matter may require.
Sect. 39. The full court sitting at Boston for the commonwealth
shall examine and audit all accounts for services and expenses incident
to said court, to be paid by the commonwealth.
Sect. 40. The chief justice of the court shall receive an annual salary
of four thousand five hundred dollars, and each of the other justices
an annual salary of four thousand dollars, from the treasury of the
commonwealth.
Sect. 41. Officers, except deputy-sheriffs, attending upon the court,
shall receive compensation therefor as the court may allow, not exceed-
ing three dollars a day.
CHAPTER 113.
OF THE SUPREME JUDICIAL COURT — EQUITY JURISDICTION.
Section
1. Jurisdiction in equity 5 original and exclu-
sive.
2. special and general.
Redemption of mortgages.
Trusts.
Specific performance.
Redelivery, &c.
Contribution between devisees.
More than two parties having distinct
rights, &c.
Copartners, &c.
Trustees, &c.
Waste and nuisance.
Accounts.
Creditor's bills.
Fraud, &c.
Accident or mistake. $
Discovery.
Full equity powers.
3. Cases in equity, bow commenced, &c.
4. Discovery, how sought. Answers.
6. Defence by demurrer, answer, &c.
6. Cases first heard by single justice.
7. Court always open for hearings, ttc. Rule
days.
8. Final decree, appeal from. Proceedings.
9. Justice may appoint receivers, &c., until
heard by full court.
Section
10. Interlocutory decree, appeal from, not to
transfer entire CJiuse.
11. not appealed from, open to revision.
12. alfecting merits, &c., question may be re-
ported to court of law.
13. Appeal, not claimed in time, allowed on pe-
tition.
14. to be entered on separate docket.
15. Justice may reserve questions for full court.
16. Decree, &c., to bear date of entry.
17. Execution on final decree not to issue for
thirty days, unless, &c.
18. Conrt may hear cases pending in another
county. Decrees, &c., to be transmitted.
19. Notice to adverse party in such case.
20. Motion, &e., may be argued in writing.
21. Upon appeal, testimony to be reported to
full court. Rules therefor. Further evi-
dence allowed in special cases.
Court may frame issues for jury, when, &c.
may issue writs, &c., to enforce decree.
24. Justice to hear equity cases at all times in
Boston.
25. Counsel may take papers from files upon
leaving receipt.
26. Court may make rules regulating practice,
&c.
23.
Jurisdiction in
equity ; ori<^inal
and exclusive.
R. S. Nl, §U,5,9.
3CuRb.2'4.
8 Cush. 5^9.
special and
general.
R. S. SI. §8.
12 Met. ail).
Redemption of
mortgages.
Trusts.
20Pick..ir>ft,372.
22 Pick. 55.
23 Pick. 148.
Section 1. In addition to the jurisdiction in equity otherwise con-
ferred, the supreme judicial court shall have original and exclusive
jurisdiction of every original process, wliether by bill, writ, petition, or
other\vise, in which relief in equity is prayed for, except when a differ-
ent provision is made ; and may issue all general and special writs and
processes required in proece<liiigs in equity to courts of inferior juris-
diction, coq^oratioiiw and individuals, when necessary to secure justice
and equity.
Sect. 2. The court may hear and determine in equity all cases
hereafter mentioned, Avhen the parties have not a plain, adequate, and
com])lete remedy at the common law ; that is to say, —
Suits for the redemption of mortgages, or to foreclose the same:
22 Pick. 526. 2 Gray, 190. 5 Gray, 177.
Suits and proceedings for enforcing and regulating the execution of
trusts, whether the trusts relate to real or personal estate :
13 Met. 210. 9 Cush. 127. 1 Gray, 220. 3 Gray, 280. 6 Gray, 341.
Chap. 113.] supreme judicial court — equity. 559
Suits for tlie specific performance of written contrjicts by and against Specific pcr-
eitlier i)arty to the contract, and his heirs, devisees, executors, aduiinis- 1{'.™."74T§§8-17.
trators, and assigns: ycush. lo. t; Gray, 25. 7 Gray, 53:!. 4Cu6ii.'5a2.
Suits to comjiel the redeliveiy of goods or chattels taken or detained Redelivery, &c.
from the owner, and secreted or withheld so that the same cannot be I;" puik! ••Ss.
replevied: 5 Met. 525. 7Cu8h. 5Jo. Sjiet.ii;. '
Suits for contribution by or between devisees, legatees, or heirs, who rontribution
are liable for the debts of a deceased testator or intestate, and by or scM^&Ii'^'"'''
between any other persons respectively liable for the same debt or
demand, when there is more than one person liable at the same time
for such contribution :
Other cases in which there are more than two parties having distinct More than two
rights or interests, which cannot be justly and definitely decided and Si'JtVnct'rigiitf,
adjusted in one action at the common law : ^c- « Met. 125.
Suits between copartners, joint tenants, and tenants in common, and Copartners, &c.
their legal representatives, with authority to appoint receivers of rents f Met'sio.*^'
and profits, and apportion and distribute the same to the discharge of ? Cusii. 305.
encumbrances and liens on the estates, or among the co-tenants :
Suits between joint trustees, co-executors, and co-administrators, and Triistccs,&c.
their legal representatives :
Suits concerning waste and nuisance, whether relating to real or Waste and nui-
personal estate : 6 Pick. 376. 13 Pick. 179. 5 Met. m ^ 4 Gray, 324. Ji"'™-io5,5i4.
Suits upon accounts when the nature of the account is such that it Accounts,
cannot be conveniently and properly adjusted and settled in an action J^f'20'i?'//''
at law: 5 Met. 7. ICush. 82. 7CuBh. 449. Is5si34.
Bills by creditors to reach and apply, in payment of a debt, any Creditor's bills,
property, right, title, or interest, legal or equitable, of a debtor, within
this state, which cannot be come at to be attached or taken on execu-
tion in a suit at Law against such debtor :
Cases of fraud, and conveyances or transfers of real estate in the Fraud, Ac.
nature of mortgages : 10 ^let. 101. 1 Cush. 222. 7 Gray, 144. i^is, m, § 1.
Cases of accident or mistake : '856, 38, § 1. 5 Met. 274. Accident, &c.
Suits or bills for discovery when a discovery may be liiwfuUy re- Discovery,
quired according to the course of proceedings in equity : '" ''•='■ ""• ^^^' ^'*'
And shall have full equity jurisdiction, according to the usage and Puii equity
practice of courts of equity, in all other cases where there is not a p'''""^''^-
plain, adequate, and complete remedy at law.
Sect. 3. Cases in equity may be commenced by bill or petition Cases in equity,
with a writ of subpoena according to the usual course of proceedings m°';'[oed™&c.
in equity, or inserted in an original writ of summons or of summons jt- s. no, § 117.
and attachment, or by a declaration in an action of contract or tort, as 1x53,' 371,' §§ 1,2.
the case may be, with or without an order for the attachment of the JJ;^;'- ^^'X^-
property or arrest of- the defendant ; and shall be returnable at the 4 Met. 563.'
terms of the court as established in the several counties or on the rule |eoc[,M2.%*'
days established by the court. Tiie material facts and circumstances §§18,20,31.
relied on shall be stated with brevity, omitting immaterial and irrele- '" '*' ^ " "
vant matters.
Sect. 4. If a discovery is sought, it may be by such bill or pcti- Discovery, how
tion, or by being maile part of such declaration, or by interrogatories, swcrs. '
Answers thereto shall be made without unnecessary delay, and ques- isss, 194, §3.
tions arising thereon be determined by the rules applicable to bills of
discovery.
Sect. 5. A defence in equity shall be made by demurrer, plea, or Defence by de-
answer. A demun-er shall be accompanied with a certificate that it is "Jv^'it'c""
not intended for delaj' ; and an answer shall be supported by oath, 1855, 194, §4.
unless waived by the adverse party.
Sect. 6. Cases in equity, and motions and other applications Cases first
therein, whether interlocutory or final, shall in the first instance be ];,7t^ce.''^ "°^'®
heard and deteruiined by one justice of the supreme judicial court. i859, 237, §1.
560
SUPREME JUDICIAL COURT — EQUITY. [ChaP. 113.
Court always
opea for hu;tr-
iugs, «fec.
Kule days.
K. S. SI, §§ 20,
21.
1859, ZV, § 7.
Final decree,
appeal from.
Proceedings.
E. S. «l, §-25.
1859, 237, § :;.
Justice may ap-
point receivers,
&c., until heard
by full court.
1869, ZV, § 3.
Interlocutory
decree ; apj>cul
from, not to
transfer entire
cause.
1859, 237, § 4.
not appealed
from, open to
revision.
1859, 237, § 5.
affecting mer-
its, &c., ques-
tion may be re-
ported to court
of law.
Appeals not
claimed in time
allowed on peti-
tion.
1859, 237, § 10.
to be entered
on separate
docket.
18511, lyii, § 53.
Justi'^e may re-
serve questious
for full court.
1859, 237, § 11.
Decree, &c., to
boar date of
entry.
1859, -237, § 8.
Execution on
final de.-ree not
to issue ibrtjir-
ty days, unless,
&c.
Sect. 7. For hearings, anJ making, entering, and modifying orders
and decrees in equity causes, by a single justice, and issuing writs in
sucli causes, the court shall he always open in each county, e.veept on
holidays established by law. And the court shall establish rule days
for the transaction of tlie business pertaining to the jurisdiction in
equity.
Sect. 8. From final decrees made by such justice, any party ag-
grieved may, within thirty days atler the entry thereof, claim an appeal,
to be entered on the clerk's docket ; and thereupon all proceedings
under such decree shall be stayed, and such appeal be thereupon pend-
ing before the full court, wlio shall hear and determine the same, and
affirm, reverse, or modify, the decree appealed from, as circumstances
may require. On the reversal of any final decree, the court may re-
mand the cause, with such directions as are necessary and projier, to a
single justice, further to ]>roceed therein, or may refer it to a master, or
take such other order respecting future proceedings therein as equity
requires, and as shall be mo.st conducive to the just and speedy determi-
nation of the case.
Sect. 9. If an appeal is taken from a final decree, the justice by
whom such decree was made may make such orders for the a]ipoint-
ment of receivers, and of injunction or prohibition, or for continuing
the same in force, as are needful for the protection of the rights of
parties, until the apjieal is heard by the full court ; subject, however, to
be modified or annulled, by the order of that court on motion, after the
appeal is taken.
Sect. 10. From all interlocutory decrees made by a single justice,
any party aggrieved may appeal, in like manner, to the full court ; but
such appeal shall not suspend the execution of the decree of the single
justice, nor transfer to the full court the entire cause, or any matter
therein, exce]>t the question whether the interlocutory decree appealed
from, shall be affirmed, reversed, or modified.
Sect. 11. All interlocutory decrees not appealed from shall be open
to revision on appeals from final decrees, so far only as it appears to the
full court that such final decrees are erroneously affected thereby.
Sect. 12. If upon making any interlocutory decree or order the
justice is of opinion that it so affects the merits of the controversy
that the matter ought to be determined by the court of law before
further proceedings are had, he may report the question for that purpose,
and stay all further proceedings except such as are necessary to preserve
the rights of the parties.
Sect. 13. A party having by accident or mistake omitted to claim
an api)eal from any final decree, within the time allowed for that pur-
jiose, may, at any time within one year after the entry of the decree
from which he desires to ai)j>eal, aj)ply to the full court, by petition for
leave to appeal ; which may be granted upon such terms as appear to
the court just and equitable.
Sect. 14. All appeals in equity and probate matters shall be entered
on a separate docket in the su]ireme judicial court.
Sect. 1.5. The justice by whom a case is heard for final decree may
reserve and rejiort the evidence and all questions of law therein, for the
con.sideration of the full court ; and thereupon like proceedings shall be
had as in appeals from final decrees.
Sect. 1(5. Every order and decree shall bear date as of the day
when the same is actually entered by the clerk, and the date be noted
upon the order or decree and upon the docket by the clerk at the time
of entering the same.
Sect. 17. No process for the execution of a final decree, made by a
single justice, shall issue until after the lapse of thirty days from the
date of the entry thereof, unless all parties against whom such deci-cc is
CuAP. 114.] suPEniou comiT. 561 '
made waive an appeal by an entry on the clerk's docket, or by a -nriting i859, 237, § 9.
filed in the cause.
Sect. 18. A single justice or the full court, sitting in one county. Court may hear
may when needful hear and determine cases pending in another county, anSerraSy"
and any motion therein. And all orders and decrees made on such decrees, &c., to
liearings shall be transmitted to the clerk in the proper county, to be by u, s. 81, § 24.
him entei-ed. •**59, 237, § 7.
Sect. 19. A motion shall not be heard nor a decree or order made Notice to ad-
ander the preceding section, until reasonable notice thereof has been Jq su'cS''^|e.
given to the adverse party or his counsel. li- s. 81, § 22.
Sect. 20. Either ])arty in such case may transmit to the court his Motion, &c.,
reasons in writing for or against the application, and the justice shall JU^^rmn?^'"'
examine the same and proceed thereon as if the parties were present. k. s. 8i,|23.
Sect. 21. The testimony of witnesses examined orally before a sin- Upon appeal,
gle justice, upon any matter pending before him, in which an appeal is reponcd to'fu^
taken, shall be reported to the full court. And the court shall provide court. Kuies
by general rules for some convenient and eifectual means of having the is5i), aar, § c.
same reported, by the justice before whom the hearing is had, or by SeeCh. i3i,§60.
some person designated by him for that pur]iose. No oral evidence
shall be exhibited to the full court, but the cause be heard, on appeal,
upon the same evidence as on the original hearing; but the full court
may grant leave to parties, in special cases of accident or mistake, to
exhihit further evidence, and may provide by general rules, or special Further cvi-
order, for the conditions under, and modes by which, such evidence Ijlspeciarcases.
shall be taken.
Sect. 22. The court may frame issues of fact to be tried by a jury. Court may
in an equity cause, when requested by a ])arty, and direct the same to juryr"iien,'&°'
be tried in the county where such cause is pendinsr, at the bar of the "-5", -a?, § 13.
. 6 Pick 376
supreme judicial court, or the superior court.
Sect. 23. The court may issue writs of seisin and execution in may issue
common foiTn when such process appears to be an appropriate method ai"orce decree.
of enforcing a decree in equity. j'- 1- ifi^/^j
Sect. 24. The justices of the court shall, front time to time, by ar- justice to hear
rangement among themselves, designate some one of their number to equity cases at
attend at some convenient place in Boston, at all convenient times, for ton.""°""
the purpose of hearing matters in equity, wlio by his rescript may make i**'-'' iso, §50.
decrees and orders in equity suits in an)' county.
Sect. 2b. The original papers, in any suit in equity, may be taken Counsel may
from the files in any county by the counsel of record of either party, for from'merupon
use before the court, upon leaving a memorandum and receipt on such leaving receipt,
files, containing a short description of the papers so taken. ' '
Sect. 26. The court may make rules regulating the practice and Court may
conducting the business of the court in matters of equity, so as to sim- iIia?iu["prM^'^""
plify the proceedings, discourage delays, lessen the expenses and burdens t^'^'^Jji , .„
of ntigalion, and expedite the decision of causes. '
CHAPTER 114.
OF THE SUPERIOR COUET-
Sectiov
1. Number of justices.
2. Court may be held by one or more justices.
3. Exclusive ori^ual and original jurisdic-
tion.
4. Oriffinal and concurrent jurisdiction.
71
Section
5. Appellate ciril jurisdiction.
6. Criminal jurisdiction, original, and appel-
late.
7. Removal of actions to S. J. C. by consent j
to be entered at next term.
662
SUPERIOR COURT.
[Chap. 114.
Section
8. Removal of actions to S. J. C. upon affidaWt.
9. Debt or (lamaj;e to exceed twenty dollars.
10. Appeals allowed from jud^^menta on mat-
ters of law except, &c. ; practice thereon.
Upon appeal, &c., security to be held until
final judjfment.
Decrees of S. J. C. in cases in superior
court to be entered of record.
13. Judgment may be final by agreement.
14. Clerk to transmit copies to S. J. C. at ex-
pense of appellant, &c. Original papers in
case, &c.
11.
12.
Section
15. Entry of appeal, &c., omitted, allowed on
petition. No security revived thereby.
16. Courts, when and where held.
17. Civil and criminal business to be transacted
at respective terms therefor.
18. Suits on recognizances in criminal matters.
19. No justice to hold more than four criminal
terms a year.
20. Certain actions to have precedence.
21. Records transferred, custody of, &c.
22. Salaries of justices.
Number of jus-
tices.
1&59, 190, § 7.
Court may be
held by one or
more justices.
R. S. H2, § 32.
1859, 196.
Exclusive origi-
nal and origi-
nal jurisdiction.
R. S. 82, § ■■!.
1840, 87, § 2.
1859, 190.
Original and
concurrent ju-
risdiction.
R. S. 82, § 2.
R. S. 85,§§l,2.
R. S. 113, §§ 17,
27,28.
1840, 87, § 1.
1842, 14, § 1.
1852, 51, §§1,3.
1852, 314, § 1.
ia59, 191).
2 Cush. 88, 494.
See Ch. 158, § 6.
Appellate civil
jurisdiction.
R. S. S2, 5 3.
1869, 190, § 5.
Criminal juris-
diction, oi-jgiual
and ai)i)ell iti'.
E. S. S2, § 25.
1859, 190.
Removal of ac-
tions to S. .1. C.
by consent.
to be entered
at next term.
1844, 102.
1859, 190, § 30.
1 Gray, 1U8.
See Ch. 156, § 7.
upon affidavit.
1840, 87, § 3.
1842, 14, § I.
1852, 312, §82.
1859, 196, § 30.
7 Met. 415, 570.
3 Cush. 350.
5 Cush. 501.
11 Cush. 87.
3 Gray, 377.
Section 1. There shall be one chief justice and nine associate
justices of the superior court.
Sect. 2. The court may be held by one or more of the justices, and
when so held shall have and exercise all the power and jurisdiction
committed to said court.
Sect. 3. The court shall have exclusive original jurisdiction of com-
plaints for flowing land, and original jurisdiction of all civil actions
except those of which the supreme judicial court, ]3olice courts, or jus-
tices of the peace have original and exclusive jurisdiction.
Sect. 4. The court shall have original and concurrent jurisdiction
with the supreme judicial court, of petitions for partition, of writs of
entry for the forclosure of mortgages, and of all ci\il actions except in
the county of Suffolk, in which the sum demanded in damages exceeds
one thousand dollars; and the like jurisdiction in the county of Suffolk,
where the sum demanded as aforesaid exceeds four thousand dollars;
and original and concurrent jurisdiction with police courts and jus-
tices of the peace, where the debt or damages demanded, or the value
of the property alleged to be detained, exceeds twenty dollars in cases
where police courts and justices of the peace have jurisdiction, except
actions of replevin of beasts distrained for the recovery of any jtenalty
or forfeiture, or to obtain satisfaction for damages.
Sect. 5. The court shall have jurisdiction of all civil actions and
proceedings legally brought before it by a]ipeal or otherwise from
justices of the peace, police courts, or courts of insolvency, and
from the decisions of commissioners on insolvent estates of deceased
persons.
Sect. 6. The court shall have original jurisdiction of all crimes,
offences, and misdemeanors, and appellate jurisdiction of all offences
tried and detennined before a police court or justice of the peace ; and
in criminal cases legally brought before it its jurisdiction shall be final,
except as otherwise provided.
Sect. 7. Actions and petitions for partition entered in the court in
the several counties, except the county of Suffolk, where the ad dam/nan
in the writ or property claimed, or value of the estate in controversy,
exceeds one thousand dollars, and in the county of Suffolk four thousand
dollars, may, before the trial is commenced, be carried, by consent of
parties, to the suju-eiue judicial court ; the jilaintiif shall enter the same
at the next term of that court, and the cause proceed as if the action or
petition was originally brought therein.
Sect. 8. If the defendant in such action, or the respondent in jieti-
tion for partition, or any ]ierson in behalf of either of them, at the first
term at which such def'en<lant or resjiondent is held by law to apjiear,
makes oath or affirmation before the clerk or a justice of the peace, that
he verily believes he has a substantial defence ; that the amount in con-
troversy exceeds the amount or value mentioned in tlic preceding sec-
tion ; tiiat he intends to bring the cause to trial, and requests that the
same may be removed to the su]ireme judicial court, it shall be immedi-
ately transferred, with the papers therein, to the clerk of that court, and
Chap. 114.] superior court. 563
by him forthwith entered at the charge of tlie party removing the same,
and the cause proceed as if originally brought in that court.
Sect. 9. No action shall be commenced in the court wherein the Debt or damage
debt or damages demanded do not exceed twenty dollars. {J! tioiTarl.'**"
7 MaSB. iT6. 10 Mass. 44,«. 4 Pick. 169. 10 Pick. 473. K. S. Si, § i.
• Sect. 10. A party aggrieved by a judgment founded upon matter of Appeals, Ac;
law apparent on the record, in any ])rocceding, civil or criminal, excejit P|j'^«>ce there-
judgment upon answers or pleas in abatement or motion to dismiss for R.s. sa, f lo.
defect of form of process, may appeal therefrom to the supreme judicial liTr^cki'sm '
court. An i.ssue of law joined in the superior court shall not be wai\ed j'^pp'^j.ji"**'
by consent of parties after such apjierd has been entered in the supreme met.m,-jm.
judicial court, but that court may, for good cause, allow the parties to 7 Met' 211' .w'
withdraw or amend their pleadings, and if the same result in an issue 4N'<-
of fact, the case shall be remanded to the superior court to be there tried; lo'jiet.'iri.
but no execution shall issue upon the judgment appealed from, imless ?*;"^''- "'S^
the appeal is waived, until the case is so remanded. rc'ush. 115.
Sect. 11. When an appeal is taken or an exception is allowed, and 2 Gray'ssl'^**'
the question arisiug thereon is duly entered in the supreme judicial court, rpon appeal,
any security which has been taken in the case, whether by bon<l, attach- *i-. security to
•' f . 1,1 1 • • ., ■ •• 1 , ,, T be held until
ment, or otlierwise, and whether the case is civil or cnminal, shall stand final judgment,
as if no judgment had been rendered in the superior court, or exception jii 1; |]' f ?8.'
taken, until final judgment is entered, unless execution is awarded iwJ, we, §31.
because the exceptions are deemed frivolous and intended for delay.
Sect. 12. Orders or decrees of the supreme judicial court issued on Pecrcesof s. j.
questions arising in a case pending in the superior court shall be entered F,','"""'""' '".
/* i*i'~ ^ 11* ••! T(>i 1 sujtcnor court
01 record in that court, and such dis]iosition be made 01 the case as law to be entered of
and justice require, conformably to the rescript or order of the supreme '■"-'"^"'■''•
judicial court.
Sect. 13. Parties in an action submitted to the determination of the .Tudgment may
court may agree that the judgment therein shall be final. ,i<m.ement
Sect. 14. The clerks shall, at the expense of the party appealing or '•"■ s. »-', § n.
taking excejitions, or of the plaintiff if a case is reserved or reported, or nii^7eopie*B™o*s
of the commonwealth in all criminal cases, prepare and transmit to the J.c.atexpenBti
supreme judicial court sitting for the proper county, one cojiy of e^ery ?)La^^yo,''§§,w,'''
pajier on file in the case, except papers used in evidence only, and also ■i*-
one copy of all papers made jjart of the case or referred to in the bill
of exceptions or report, or so much thereof as necessary fully to ]iresent
the question of law, for the use of the chief justice, and like copies for
the clerk of the supreme judicial court, to be kept on file in said court ;
and one copy of the bill of excejjtions, or report, or papers upon whicii
the question of law arises on appeal, for each associate justice, and a
like cojjy for each party and the rejjorter. And in case any origin: 1 oripnai pa-
papers used in the trial of the cause, are needed in the supreme judici:!l P"8mca6e,&c.
court, they shall be transmitted to the clerk of said court, to be by hiia
kept on file until the rescript in such action is sent. And the expen.^e
of such copies and transmission shall be taxed in the bill of costs of the
prevailing party, if he has paid the same.
Sect. 15. If by reason of mistake or accident an appeal to the Entry of ap-
superior court is not duly entered therein, or if for a like reason a com- ted,''anowe™n
plaint founded on an omission to enter an appeal has not been entered petition.
by the appellee, the court upon petition may allow said appeal or com- 22,2.3,24. '
plaint to be entered in the same manner, and upon the same terms, as "*3a, i96.
questions or complaints are allowed in like ca.ses to be entered in the
supreme judicial court under section seventeen of chapter one hundred
and twelve; and when so entered, the case shall proceed as if the com-
plaint or appeal had been duly entered. Attachments made and security No security re-
given in the original action shall not be revived or continued in force by "^ed thereby,
the entry of an appeal or complaint of the original plaintifi's, allowed
under this section, but shall remain discharged.
564
SUPEKIOR COURT.
[Chap. 114.
Courts, when
and Athcro held.
lt-59, IW), § 10.
Barnstable.
Berkshire.
Bristol.
Dukes County.
Essex.
Sect. 16. The court shall be held in every year at the times and
places following, that is to say : —
For the county of Barstalile, at Barnstahle on the Tuesday next
after the first Monday of April, and on the first Tuesday of Sep-
tember:
For the county of Berkshire, at Lenox, for civil business on the
fourth Mondays of February, June, and October; for criminal business
on the first Mondays of January and July :
For the county of Bristol, at Taunton on the second Mondays of
March and September, and at New Bedford on the second Mondays of
June and December :
For the county of Dukes County, at Edgartown, on the last Mondays
of May and September :
For the county of Essex, for civil business, at Salem on the first
Mondays of June and December, at Lawrence on the first Monday of
March, and at Newburyport on the first Monday of September; for
criminal business, at Salem on the third Monday of January, at New-
bury])ort on the second Monday of May, and at Lawrence on the fourth
Monday of October :
For "the county of Franklin, at Greenfield, on the third Monday of
March, and the second Mondays of August and November:
For the county of Hampden, at Springfield, for civil business on the
second Mondays of March and June, and the first Monday of October;
for criminal business, on the third Monday of May and first Monday of
December :
For the county of Hampshire, at Northampton, for civil business, on
the third Monday of February, the fii'st Monday of June, and the third
Monday of October; for criminal business on the second Monday of
June and third Monday of December :
For the county of Middlesex, for civil business, at Lowell, on the
second Monday of March and tlie first Monday of September, at Con-
cord on the first Monday of June, and at Cambridge on the second
Monday of December ; for criminal business, at Cambridge, on the
second Monday of February, at Concord on the fourth Monday of
June, and at Lowell on the third Monday of October :
For the county of Nantucket, at Nantucket, on the first Mondays of
June and October :
For the county of Norfolk, at Dedham, on the fourth Monday of
April and the third Mondays of September and December :
For the county of Plymouth, at Plymouth, on the second Mondays of
February and June and third Monday of October :
For tiie county of Suftblk, at Boston, for civil business, on the first
Tuesdays of January, April, July, and October; for criminal business
on the first Monday of every month :
For the county of Worcester, for civil business, at Worcester, on the
first Monday of March, the Monday next after the fourth Monday of
August, and the second Monday of December; and at P'itchburg on
the second Mondays of June and November; for criminal business, at
Worcester, on the third Monday of January, the second Monday of
May, and the third Monday of October ; and at Fitchburg on the second
Monday of August.
Sect. 17. In the counties where both civil and criminal terms are
inai business to established, civil business exclusively shall be transacted at civil terms,
oe transticted at ' - - _...-...»
respertive
terms therefor.
1859, 19li, § 11.
Franklin.
Hampden.
Hampshire.
Middlesex.
NantnckcS,
Norfolk.
Plymouth.
Suffolk.
Worcester.
Civil and crim-
Suits on recog-
nizances in
criminal mat-
ters.
R. S.8S, H3.
and criminal at criniin.al terms; and continuances of civil and criminal
cases shall be to civil and criminal terms respectively without any s]ie-
cial order therefor, except as provided in the following section.
Sect. 18. In such counties civil suits on recognizances entered into
in criminal prosecutions cognizable by this court, tihall be returnable to
and have day in criminal terms.
1811, 111, 5 3. 1869, 196, $ 12.
Chap. 115.] matters common to supreme judicial and superior courts. 565
Sect. 19. Xo justice shall hold in any one year more than four Xo justice to
terms for the transaction of eriunnal business only. four criming"'
Sect. 20. At any term of the court wherein criminal Inisiness may terms a year.
, 1 - ■ • 1 ^1 • • J.' t ^ -L 1859, lilO, § 22.
be transacted, causes ansnig under the provisions ot cliapters one huu- f.j|.tain actions
dred and forty-four, eighty-six, and eighty-seven, shall have ]:)recedence to have prece-
in the order said chapters are herein named, next after the causes of i^g^'^igii, 554.
persons actually confined in prison and awaiting trial.
Sect. 21. The records of courts transferred to the superior court Records trans-
shall remain in the custody of its clerks. In the county of Suffolk the o""!^; ™°*°'''
clerk of said court, for civil business, shall have the custody of said 1859, i96, §4.
records in civil cases, and the clerk for criminal business shall have the
custody of said records in criminal cases. Cojiies of said records may
be certified by said clerks respectively. Judicial writs and processes
founded u])on such records shall issue under the seal of the superior
court, in like manner and with the same effect as similar writs and pro-
cesses founded upon its own records.
Sect. 22. The chief justice of the court shall receive an annual sal- Salaries of jus-
aiy of three thousaml seven hundred dollars, and each of the other jus- i^gi'igo, § 17.
tices an annual salar}- of three thousand five hundred dollars, from the ^^"^ '^^- ^^' 5 ^■''•
treasiuy of the commonwealth.
CHAPTER 115.
OF MATTERS COMMON TO THE SUPREME JUDICIAX AND SUPERIOR
COURTS.
Skction
1. Justices, tPiiTire of office. Senior justice to
act as chief, in case, &c.
2. to be conservators of the public peace.
3. Courts may make judgments, frame writs,
&c.
4. to make rules for practice, &c.
5. not to charsfe juries as to matters of fact.
6. may set aside verdict, &c., before judg-
ment, &c.
7. Decision on pleas in abatement, &c., to be
final. Exceptions to rulings, &c., when to
be presented, &c.
8. to be allowed, &c., within five days, un-
less, &e.
9. Trials not to be delayed by allowance of ex-
ceptions.
10. If exceptions are frivolous, judgment may
be entered, &c.
11. If disallowed, may be proved, on petition.
Section
12. Copies of exceptions, &c., to be sent up
within twenty days.
13. Questions of law in Berkshire, &c., may, by
consent of parties, be heard in Boston.
14. Judgment may be entered as of former
term.
15. First day of term, how designated.
16. Two or more sessions may be held at same
term.
17. Courts to allow, &c., accounts, &c.
18. Justices to make convenient arrangements
for holding courts.
19. Court may adjourn to another shire town.
20. A(^ournment of court, in absence of jus-
tice.
21. Same subject.
22. Courts to establish seal and appoint offi-
cers.
Section 1. The justices of the supreme judicial court and superior justices, tenure
court shall continue to hold their offices according to the tenor of their ^b*s?nce &c of
commissions, and vacancies be filled in the manner provided by the con- ciuef.
stitution. In case of a vacancy in the office of chief justice of either ch°2!§^,^art.'9.
court, or of his sickness or absence, his duties shall be perfonued by the <^h 3, art. 1.
• • ^- i- 1 ^ J 1 vi? 1 * i K.S.81,§§1,49.
senior justice 01 such court present and quaUhea to act. iS59, loo, §7.
Sect. 2. The justices of the supreme judicial court and superior tobeconser-
court shall severally by virtue of their offices be conservators of the l^^-^cwace
peace throughout the commonwealth. k. s. si, § 7.'
Sect. 3. The courts respectively may make and award such judg- courts may
ments, decrees, orders, and injunctions, and shall issue ;ill ^Tits and pro- inakejudg-
' • ,■.. 1 1 ments, frame
cesses necessary or proper to curry mto enect the powers granted to writs, &c.
48
566 MATTERS COMMON TO SUPREME JUDICIAL AND SUPERIOR COURTS. [ChaP. 115.
R. s. 81, §§R,9. them, and when no form for any such writ or process is prescribed, the
issf 3n Vs" court shall frame one in conformity with the jjrinciples of law and the
1859! 19()| §§ 15, usual course of proceedings in the courts of this commonwealth.
Courts to make ^ECT. 4. The courts shall respectively from time to time make and
ruios for prac- promulgate uniform codes of rules for regulating the practice and con-
R!"'s.*8'i", § 10. ducting the business of such courts in cases not expressly provided for
R. s! ffi! § .3?; by law ; for the jiurpose of —
i85i,'aii!|2! First. Simplifying and shortening the pleadings and other proceed-
1852, 312, §§34, Jjjgg .
1853, 371, §4. Second. Prescribing the tenns upon which amendments will be al-
1859! 196,' §§ asf 'owed by the court, or upon which unnecessary counts and statements
«■ will be stricken out of the record ; discouraging negligence and deceit ;
preventing delay; securing parties from being misletl; placing the party
not in fault as nearly as possible in the condition in which he would
have been if no mistake had been made ; distinguishing between form
and substance ; and affording known, fixed, and certain requisitions, in
place of the discretion of the court :
Third. For conducting trials :
Fourth. Presenting more distinctly the questions to be tried by the
jury:
Fifth. Giving each party notice of matters intended to be given in
evidence by the other party so as to prevent surprise and enable suitors
to prepare for trial :
Sixth. Respecting the forms of verdicts so as to place upon record
the finding of the jury in matters of fact:
Seventh. Expediting the decision of causes :
Eighth. Remedj-ing abuses and imperfections in practice and dimin-
ishing costs : provided, that such rules are not repugnant to the laws of
the state, and that the rules of the superior court shall not conflict with
those of the su])reme judicial court, but upon the same subject shall be
in conformity therewith,
not to charge Sect. 5. The courts shall not charge juries with respect to matters of
ters^of cilt.™"'" fiict> but may state the testimony and the law.
may set aside Sect. 6. The courts may, at any time before judgment in a civil
E'^s"82'^''i9 action, set aside the verdict and order a new trial, for any cause for
1855, 185. ' which a new trial may by law be granted ; or after verdict may report
1859, 196, § 32. ^jjg ^^gg ^^^. jgtgrijiination by the supreme judicial court.
Decision on Sect. 7. Decisions of a justice of either court, u])on pleas in abate-
meut,'&c'.^'to'be ment Or on motions to dismiss for defect of form in process, shall be
fi°*'- final on the question raised. On motions for a new trial, and in all cases,
rulings, Ac, civil OT Criminal, whether according to the course of the common law or
seated "ac^ '"^'^ Otherwise, a party aggrieved by an opinion, ruling, direction, or judg-
E. s. 81, §§27, ment, of the court in matters of law, may allege excejjtions thereto ; such
I85^'i96,*§27.'"' exceptions, being reduced to writing in a summary mode and filed with
5 Met. 287, 330. the clcrk, and notice thereof given to the adverse party, may be pre-
'^^' ' ' ' sented to the court before the adjournment without day of the term in
which the exceptions are taken, and within three days after the verdict
in the case, or after the opinion, ruling, direction, or judgment, excejited
to is given. For good cause shown, a further time, not exceeding five
days, unless by consent of the adverse party, may be allowed by the
court. The exceptions being examined and found conformable to the
truth shall be allowed by the ])residing judge. In all cases the adverse
party shall have an ojiportunity to be beard concerning the allowance
of such exceptions.
to be allowed, Sect. 8. The exceptions shall be restored to the files of the court
daysruutos""' within five days after the same are presented to the judge, with a cer-
fffio i9« S27 tificate under his hand either allowing or disallowing the same, unless
' the judge finds that further time is necessary for the examination or
hearing upon the same, not exceeding ten days, unless for reasons
Chap. 115.] matters common to supreme judicial and superior courts. 567
rendering more delay necessary, which shall be certified by the judge
on restoring the papers.
Sect. 9. The trial of questions of fiict shall not be prevented or Trii.is not to be
delayed by the filing or allowance of exceptions, but the court shall fow'fuct^ of ex-
proceed to the determination of such questions as if exceptions had not oeptions.
been taken, and such further proceedings be had as the court orders; 33'. ' '"* '
but no judgment shall be entered unless the exceptions are adjudged JI^m'S^J;
immaterial, frivolous, or intended for tlelay.
Sect. 10. If the exceptions appear to the justice before whom the if oxenptions
trial is had, to be frivolous, immaterial, or intended for delay, judgment |"uS-ln')nt"maV
may be entered, and execution awarded or staved on such tei-ms as the benitfrid.&c.
court deems reasonable, and in criminal cases sentence passed, notwith- lopidt.'sa."
standing the allowance of the exceptions. If execution is not awarded,
any security which has been taken in the case, whether by bond, attach-
ment, or otherwise, shall stand as if no judgment had been entered,
until an order is made for final judgment.
Sect. 11. If the justice disallows or falls to sign and return the ifriisaiiowcd,
exce])tions, or alters any statement therein, and either party is aggrieved, nn'p.'t'iiiu™''^'
the truth of the excei)tions presented may be established before the u. .s.»i,§§28.
■M.
supreme judicial court upon petition setting forth the grievance, and Tssi,^
thereupon, the truth thereof being established, the exceptions shall be ij-''-'- '>"':,!.?'•
heard, and the same proceedings had as if they had been duly signed 4 Gray/icorsrs.
and brought up to said court with the petition. The supreme judicial
court shall make and promulgate rules for settUng the truth of excep-
tions alleged and not allowed.
Sect. 12. Copies and papers relating to a question of law arising in Copies of ex-
either court upon a])]ieal, by bill of exception, reserved case, or other- to'bi'"s!nt'up'
wise, shall within twenty days from the adiournment of the court for that w ithiu m iiays.
term without day, be transmitted to and entered in the law docket of the 2V 34. ' '* '
supreme judicial court for the proper county; but the entry thereof
shall not transfer the case, but only the question to be detennined.
Sect. 13. Questions of law arising in the supreme judicial court or QuostionH of
superior court, when sitting for the counties of Berkshire, Hani])shire, shjr"'&c"may,
Franklin, Hampden, or Worcester, may, by consent of all the jiarties filed t>y c.unsint of
in the case, be entered and heard at the law term of the supreme judicial h"ard lu Bos-
court at Boston. And if the judge before whom any action or ))ro- '"p^j
ceeding is tried in the courts in said counties in which a question of law
is saved or arises for the detennination of the full court, deems the
exception or appeal frivolous, or intended for delay merely, or that the
interests of the parties or the public require a more speedy determination
thereof than can be attained in the tertiis established for the county in
which the trial is had, he shall so certify and order the questions of law
to be entered and heard at the term aforesaid in Boston ; and all the
other proceedings shall be the same as if the questions had arisen in any
other county.
Sect. 14. The courts may at their discretion, whenever justice Jurierment may
requires it, enter any judgment as of any day of a former term. fo'^mer term!"
Sect. 15. In writs, processes, records, and judicial proceedings, civil First day of
and criminal, the day on which any term is to commence may be desig- {","'40(1"'" ^'^'''
nated as the first, second, or other Monday, or other day in the week, in &>% wa, § is.
the month in which the same happens.
Sect. 16. Two or more sessions of the court m.ay be held in the Two or more
same county at any term for the transaction of business, when the Md at *Banie ''*
public convenience requires ; and such division of the business may be t' 1™.
made as may conduce to its more speedy and convenient disposal. iksul im, § 13.
Sect. 17. The courts shall respectively receive, examine and allow Courts to .lUow,
accounts for services and expenses incident thereto in the several coun- fsr,,")"™""*''
ties, and order paJ^nent thereof out of the respective county treasuries. i»5'->> i«i>, §20.
Sect. 18. The justices of said courts respectively, or a majority of Justices to
568
POLICE COUBTS.
[Chap. 116.
make conven-
ient arrange-
mentB for hold-
ing courts.
U. S. 82, § 38.
Court may ad-
.iourn to another
'shire town.
i»js, aw.
1859, 2"5.
Adjournment of
court in absence
of justice.
U. S. 81, § 10.
R. S. 82, § 39.
1S59, 196, § 19.
Same subject.
U. S. 81, §40.
R. S. 82, § 30.
Courts to estab-
lish seal, and
appoint officers.
1859, 196, § 16.
them, shall, from time to time, make such arrangements for the attend-
ance of some one of tlieiii at the several times and places appointed for
holding the courts, as will be most convenient, and insure a jmnctual
and jirompt discharge of their duties.
Sect. 19. If the ])ublic business demands, either court may adjourn
an established term in one shire town to another in the same county.
Persons, recognizances, and processes required to appear at or to be
returned to the established term, shall appear at, be returnable to, and
have day in, the adjourned term.
Sect. 20. When no justice is present at the time and place ap-
pointed for holding a court, whether at the beginning of a term or
any adjournment thereof^ the sheriff of the county or either of his
deputies may adjourn the court from day Jo day, or from time to time,
as circumstances require, or as ordered by any of the justices, and shall
give notice of such adjournment by making public proclamation in the
court house, and by a notification posted on the door of the court
house, or published in some news])a))er.
Sect. 21. In such case any justice may, by a written order, require
the sheriif or his de|)uty to adjourn the court without day, or to the
time expressed in the order; and the officer shall adjourn the court
accordingly by public proclamation in the court house.
Sect. 22. Each court shall have power to establish a seal, and to
appoint all officers necessary for the transaction of its business.
CHAPTER 116.
OF POUCE COURTS.
Section
1. Courts established, &c.
2. where not to be eetiibUshed.
JUSTICES AND CLERKS.
3. Appointment of the justices.
4. Clerks, how chosen, &c.
5. when justice may appoint.
6. may appoint assistants.
7. pro tempore^ when appointed.
8. to be sworn, g^ive bond, keep records, &c.
9. Justice, clerk, &c., not to act as counsel,
&c.
JURISDICTION.
10. Jurisdiction, general.
11. with powers necessary to discharge their
duties.
CHminal.
12. criminal, same as justices of the peace.
13. additional, concurrent with superior
court.
14. Same subject.
15. final, may be declined, &c.
16. "Warrants, when court not in session.
17. where returnable, &c.
CiHL
18. Jurisdiction, civil, when exchisive.
ID. when two or more are plaintiffs, &c.
SESSIONS, PROCEEDINGS, &C.
20. Terms of court, separate civil and criminal.
21. Expenses, how paid.
Section
23. Courts, by whom held.
23. Rules. When justice to act as clerk.
24. Courts may issue summons to run into any
county.
2o. Complaints to be entered on docket. War-
rants, where returnable.
26. Processes, how to bear test, &c.
27. Attendance of partie-i, &c., when case is ad-
journed.
28. Warrants, &c., by whom made. Fees, &c.
29. Fees, &c., to be paid to county treasurer,
except, &c.
30. accruing to city, &c., to be paid thereto.
31. Fees and costs, in criminal cases, how made
up, &c.
APPEALS.
32. Appeal allowed.
SALARIES.
33. Salaries of justices and clerks ; of clerk
elected under section four.
34. Justice, »&c., to receive no additional com-
pensation.
POLICE COURT OF BOSTON.
35. Three justices in Boston; tenure of office.
36. First justice. Any justice to issue war-
rants, &c., when, &c.
37. Salaries of assistant clerks.
38. Court, when to be held, for criminal busi-
nese.
Chap. 116.] police courts. 569
Sectiox
39. Court, when to be held for civil busineBs,
40. DilTercut sessions may be held at same
time.
Section
41. Jurisdiction, exclusive ; concurrent. Rec-
ords, &c., of justice's court transferred.
42. Justices to make rules, &c.
43. Clerk to render account of fees, &c.
Section 1. The cities and towns of Adara.s, Boston, Canibridsje, Courts cstab-
Chelsea, Chicopee, Fall River, Gloucester, Haverhill, Lawrence, Lee, I'^'s.'s?*"'
Lowell, Lynn, Milford, New Bedford, Newburyport, Pittsfield, Ro.\- i83:),ft4,'i92.
bury, Salem, Springfield, Taunton, Williamstown, and Worcester, shall ]n4s' 32^200.
each continue a judicial district under the jurisdiction of the police j^ijl'gij
court thereof 1854,34,60,277,3.35. i855,2n, 83, 153,312, 4«3. isss, 84, 130. isaa', t>4, 'sen.
Sect. 2. No police court shall hereafter be estabhshed in any town where not to
having less than ten thousand inhabitants. ^ estabUshed.
JUSTICES AND CLERKS.
Sect. 3. There shall be one justice and two special justices of Appointmeutof
each of said courts, except in the city of Boston. The justices now (l|,'i,-'p"'*Qjf^j
appointed shall continue to hold their oiBces according to the tenor of ait. 1. ^
their commissions, and as vacancies occur, others shall be appointed in lji47,'27o.^^'''
the manner provided by the constitution.
Sect. 4. The clerks now in office shall hold their offices until sue- cierks, how
cessors are chosen and qualified under the jirovisions of this chajiter ; Amend. tonst.
and in every city or town containing, accordino- to the ne.xt precediiic; ni-t. 19.
■ • . . ^ . ® See Ch 112 6 4
State or national census, fourteen thousand inhabitants, in which a • >s •
police court is established, and where the office of clerk is not estab-
lished by law, a clerk of the court shall be chosen at the niunici]ial
election of the year in which clerks of other jioliee courts shall ne.xt
thereafter be elected. At the annual municijial election in the year
eighteen hundred and si.xty-one, and every fifth year thereafter, clerks
of the several police courts, where the office of clerk shall then exist
by law, shall b(^ chosen by the districts, and shall hold office until their
successors are chosen and qualified. If a clerk is reinovetl, or other-
wise vacates his office, another shall be chosen at the annual municipal
election, for the remainder of the term.
Sect. 5. The justice of a police court, when noi clerk is required by when justice
law, may appoint a clerk, to be paid by him, and for whose official acts i^sh?,"!".'
and d(jings he shall be responsible, and who shall hold his office during '^If^f^j^ ^"
the pleasure of such justice.
Sect. 6. The clerk may, subject to the approval of the justice, or ""y appoint
court, from time to time, appoint, to aid him in the discharge of his i;". fe\ »?, §'23,
duties, one or more assistant-clerks, who shall be removable at his pleas- jj^ j^, ,„
ure, and for whose doings he shall be responsible.
Sect. 7. In case of the absence, death, or removal of a clerk, the court f™ tempore,
shall appoint a c\erk pro tempore,-who shall receive the compensation of,':.
the clerk and act until he resumes his duties, or the vacancy is filled by "• **• ^''' ^ '^•
election.
Sect. 8. The clerk, assistant-clerks, and clerk ^>ro few/Jor^", of each ^.*,", ^'- ^7°™'
court shall be sworn ; and the clerk shall give bonds in a sum not less m-ords, &'o.
than three times the amount of his annual salary, with sureties to the R-S. sr, §§19)
acceptance of the treasurer of the city, town, or county, with a condi- 1838,147, §2.
tion for the faithful iierformance of the duties of his office. He or his IJI'^'Jw', | s!
assistants shall attend all sessions of the court and keep a record of all
the proceedings. The records in civil and criminal cases shall be kept
separately in different books.
Sect. 9. No justice, clerk, or assistant-clerk, shall be retained or em- Justice, clerk,
ployed as counsel or attorney in any suit, comjilaint, or proceeding as'counsei', &C
pending in his court, nor in any which has been examined or trie<l R. .s. sr, §§ 25,
therein; and no special justice shall be so retained dt employed in isjr,, 321,512.
any case in which he shall officiate as justice. is57, 264, §1.
48* 72
570
POLICE COURTS.
[Chap. 116.
JuriBdiction,
general.
1852, 46.
1857, 51.
with powers
necesBary to
discharge their
duties.
E. S. 87, § 13.
JTJEISDICTION.
Sect. 10. Police courts may in their respective counties exercise
the jjowers, and shall perform the duties and be subject to the liabilities,
of justices of the peace.
Sect. 11. They shall have and exercise the powers necessary and
proper for the discharge of their duties ; and the proceedings in the
hearing, trial, and determination, of cases, including trials by jury, and
all matters relating thereto, shall be substantially the same, and the fees
and costs shall be the same, as in like cases betbre justices of the peace.
criminal,
Bame as justices
of the peace.
K. S. 87, §§ 3, 4,
S, .12.
1848, 331, § 4.
1854, 277, § 2.
8 Gush. 210.
11 Cu.sll. 401).
See Ch. 120.
additional,
concurrent with
superior court.
1853, 10 i, § 1.
1858, 45, § 1.
1859, I'.W.
See Ch. 52, § 27.
Same subject.
E. S. 12(1, § 23.
1855, 135.
1857, 80.
1857, 157, § 1.
See Ch. nil,
§§ Ifi-l.S, 21, 25-
27, 43-45, 54, 57
Criminal.
Sect. 12. They shall in their respective counties have the same
jurisdiction as any justice of the peace in all matters relating to crimes
and oifences ; and in relation to crimes and oflences committed in their
respective districts such jurisdiction shall exclude the jurisdiction of
other police courts and of justices of the peace, except as provided in
section seventeen, and section tliirty-two of chapter one hundred and
twenty.
Sect. 13. They shall in their respective counties, concurrently with
the superior court, have jurisdiction of cases of assault and battery,
(except where committed with intent to commit some other offence, or
with a wea]ioii dangerous to life, or where the life of the person assaulted
is in danger, or such person is maimed,) and in suclu cases may jninish
by imprisonment in the jail or house of correction not exceeding six
months or by fine not exceeding thirty dollars. They shall also con-
currently as aforesaid have jnri.sdiction of offences punishable by fine or
forfeiture not exceeding one hundred dollars, or imprisonment in the jail
or house of correction not exceeding oue year, or both said punishments.
Sect. 14. They shall also have concurrent jurisdiction, as aforesaid,
of larcenies; and offences of obtaining property by any ftlse pre-
tence, or ])rivy or false token, or by the game of three-card monte, or
any other game, device, sleight of hand, pretended fortune telling, trick,
or other means, by the use of cards or other iin])lcments or instruments ;
and offences of buying, receiving, or aiding in the concealment of stolen
goods or other property ; where the property alleged to be stolen, or so
obtained, bought, received, or the concealment of which is so aided, is
not alleged to exceed the value of fifty dollars ; and in such cases may
punish by imprisonment in the jail or house of correction not exceeding
two years, or by tine not exceeding one hundred dollars.
Sect. 15. They may in their discretion decline to exercise final
jurisdiction of any case in which the superior court has concurrent
jurisdiction.
Sect. 16. The justice may receive complaints and issue warrants
when the court is not in session.
Sect. 17. All warrants issued by said courts, or a justice thereof, or
by a justice of the peace in any district, in a criminal suit or ]:)rosecu-
tion, or under the provisions of chapter seventy-two, shall be returnable
before the police court of the district. Warrants issued by ju.stices of
the peace of any county for offences committed out of the district, may
be made returnable before the nearest police court in the county. Xo
fees shall be allowed to a justice of the peace for any such warrant, but
all fees therefor shall be payable to the comt to which the warrant is
returnable.
CivU.
Jarisdiction, Sect. 18. The courts in their respective counties shall each have the
eiusire. same jurisdiction as justices of the peace of all civil actions and pro-
final, may be
declined, »&c.
1853, 190, § 2.
1857, 157, § 2.
"Warrants when
court not in ses-
sion.
1S.>2, 94, § 23.
1855, 312, §5.
where return-
able, &c.
E. S. 87, §§ 5, (i,
33. 1850,310, §2.
1852, 94, § 2;).
1855, 270, § 7.
1855, 321, § 10.
1858, 103, I 3.
1858, 138.
8 Cush. 210.
7 Gray, 322.
Chap. 116.] police courts. 571
ceedings, and such jurisdiction shall, when the plaintiff and defendant R. s. 8?, §§ n,
both reside in the district, exclude the jurisdiction of other police courts isis, .la, § 24.
and justices of the peace. i'j?'t'^'js
Sect. 19. When there are two or more plaintiffs or defendants, or jurfsmction
one or more trustees, the jurisdiction of the couit shall not be exclu- wiiintivonr
give, unless all the parties reside in the district. t?ff"&™ '' "'°
K. s. sri § 35.
SESSIONS, PROCEEDINGS, &C.
Sect. 20. Each court shall be held as often as necessary for civil and Terms of court ;
criminal business within the district for which it is established, in the and'criinlnai!
court house, or in any other suitable place to be provided by the dis- k. s. »;, §42.
trict, and may be adjourned from time to time to the same or any other
place in the same district, as occasion requires. Separate terms of the
court for civil and criminal business, and the times of holding the same,
shall be fixed by the justice or justices by general rule.
Sect. "21. The reasonable expenses of such courts for rent and care E.xpcnties, how
of court rooms, fuel, record books, blanks and stationery, and otherwise ?'"''■
incidental to maintaining such courts, shall be certified by the justices
thereof, and audited, allowed, and paid out of the county treasury to
the parties entitled thereto, like costs in criminal cases, and two-thirds
of such expenses shall be repaid to the county out of the treasury of the
commonwealth.
Sect. 22. Each court, except in Boston, shall be held by the justice ; CourtB, bv
but in case of his sickness, interest, absence, or other disability, and in kI's^'Th'si,
case of a vacancy in the office of justice, the sjiecial justice holding the *|-^
oldest commission shall have the powers and perform the duties of the is4ii;isr,,§§4iio.
justice: and at any time upon request of the justice either sjiecial jus- jji;5|'.> ^■'' § *•
tice may hold a session of the court, and two or more sessions may be iss^ai, §2.
held at the same time, the fact being stated u]ion the record. For o'^ugh'^alf'
every day occupied by a special justice, he shall i-eceive the same rate
of compensation as the justice, by whom he shall be paid, but such com-
pensation shall not exceed the fees taxable by law for the services
peri'ormed.
Sect. 23. The justices may establish rules for the orderly and uni- kuIos. Whpn
form conducting of the business of their respective courts, and when no J.','^!jj.™ '° ""* "'
clerk is appointed shall keep a fair record of their proceedings, and f^-^i^ §y-
perform all other duties of clerk.
Sect. 24. The courts may issue summons and other process to pro- Courts may is-
cui-e the attendance of witnesses in the trial and examination of crim- torunteo'anj-
inal cases, to run into any county to be served by the sheriff of any ^'^"5;j-. ^ j
county or his deputies, or any constable of the city or town in which ' ''
any witness may be.
Sect. 25. Complaints made to a police court shall be entered on a Complaints to
docket to be kept for the purpose, and all wammts issued u]>on any Ijockct""'' ""
complaint shall be returned to the court specified in the warrant, with Warrnnts,
, i ,»,/», 11-., n • • 1 Til whore retuma^
the return of the ofncer who had the same tor service indorsed tliereon. tie.
Sect. 26. Processes issuing from a police court having a clerk, shall isso, 23c., §1.
be under the seal of the court, signed by the clerk or an assistant-clerk, to'^bear"tcBt,&c[
and shall bear test of the justice or first justice who is not a party i^s.^87,§i2.
thereto; and in case of the death, absence, or disability of the justice, 1853; irK § a'.
then of one of the special justices. In other respects the processes of J^jg^jf^^,'!?;
said courts shall be substantially like the processes issued by justices of iwr', m, § a.
the peace. '^ *^"'''' '*'
Sect. 27. When a trial or examination pending before a police court Attendance of
is adjourned to a future day, as provided in chapter one hundred and wh,!',l;'ck8e is ad-
seventy, the parties and witnesses shall not be required to attend from ■g"g^'J!i- <,
day to day, but they shall attend at the time to which the cause is • ■ " ••
adjourned, and the recognizances, if any, shall be taken accordingly.
572
POLICE COURTS.
[Chap. 116.
AVarrants, A-c,
by whom made.
Fees, &c.
R. S. 87, §21.
1838, 147, § -'.
18S1, 34li, § 1.
18oli, 172, § 3.
See Ch. 14,
§§ 12, 13.
Tees, &c., to be
paid to coimty
treasurer, ex-
cept, &c.
accrumg to
city, &c., to be
paid thereto.
R. S. 87, § 38.
1853, 57, §;.
1855, ■ili, § 4.
1856, 158, § 2.
Fees and costs,
in crirainid ca-
ses, how made
up, &c.
K. S. 87, § 39.
Sect. 28. The clerk of each court where the office of clerk is estab-
lished by law, and the justice of every other court, shall make all war-
rants, writs, processes, and returns, of the court, tax bills of cost, and
receive all fees, fines, forfeitures, and costs, accruing from the business
of the court in civil and criminal cases, including fees for blanks and
copies. All fees for copies shall be indorsed thereon.
Sect. 29. The clerk or justice receiving such fees, fines, forfeitures,
and costs,'shall account for and pay over the full amount thereof quar-
terly, in the montlis of January, April, July, and October, in each year,
to the treasurer of the county, except as is provided in the following
section.
Sect. 30. All fines and forfeitures so received by the clerk or justice,
which accrue to any city or town, shall be paid to such city or town as
often as twice in each year; and all fees of oflicers and witnesses,
whether received directly from the jiersons convicted or through the
county treasurer, shall be paid to the persons entitled thereto, and if
not so paid, shall be accounted for and jiaid over to the county treasurer,
in like manner as is required of justices of the peace.
Sect. 31. Fees and costs in criminal cases, not received by the jus-
tice or clerk, shall be made up, taxed, certified, allowed, and paid, as is
provided in prosecutions before justices of the peace.
Appeals.
R. S. W).
K. S.87,§§5,30.
1859, 196.
Salaries of jus-
tices and clerks.
See Ch. 15, § 36.
Adams.
Boston.
Cambridge.
Chelsea.
Chicopee.
Fall Kiver.
Gloucester.
Haverhill.
Lawrence.
Lee.
Lowell.
Lynn.
Milford.
Kew Bedford.
Newburyport.
PJttsfleld.
Eoxbury.
APPEALS.
Sect. 32. A party aggrieved by the judgment of a police court may
appeal to the superior court. Such appeals shall be had, entei'cd, con-
ducted, and disposed of, in all respects like appeals ti'om justices of the
peace.
SALARIES.
Sect. 33. The justices and clei-ks in the following districts shall
receive from the treasury of the commonwealth annual salaries, as
follows :
Adams, the justice, eight hundred dollars.
Boston, the justices, twenty-five hundred dollars each; the clerk,
eighteen hundred dollars.
Cambridge, the justice, fifteen hundred dollars ; the clerk, five hundred
dollars.
Chelsea, the justice, one thousand dollars.
Chicopee, the justice, nine hundred dolhirs.
Fall River, the justice, one thousand dollars; the clerk, five hundred
dollars.
Gloucester, the justice, six hundred dollars.
Haverhill, the justice, six hundred dollars.
Lawrence, the justice, fifteen hundred dollars; the clerk, eight hun-
dred dollars.
Lee, the justice, four hundred dollars.
Lowell, the justice, twenty -two hundred dollars; the clerk, one thou-
sand dollars.
Lynn, the justice, one thousand dollars; the clerk, three hundred
dollars.
Milford, the justice, twelve hundred dollars.
New Bedford, the justice, fifteen hundred dollars; the clerk, eight
hundred dollars.
Newburjport, the justice, nine hundred dollars ; the clerk, five hun-
dred dollars.
Pittsfield, the justice, eight hundred dollars.
Roxbury, the justice, fifteen hundred dollars ; the clerk, five hundred
dollars.
Chap. 116.] police courts. 573
Salem, the justice, fifteen hundred dollars; the clerk, nine hundred Saiem.
dollars.
Springfield, the justice, fifteen hundred dollars. Springfield.
Taunton, the justice, twelve hundred dollars ; the clerk, six hundred Taunton,
dollars.
Williamstown, the justice, three hundred dollars. ■\viiUamstown.
Worcester, the justice, fifteen hundred dollars; the clerk, eight hun- Worcester.
dred dollars.
In any district having a clerk elected as provided in section [four,] of oierk eiect-
[three'l for whom no salary is above provided, the clerk shall receive an ^^^'J,"'''^' 8'='='"'°
anntuil salary of five hundred dollars.
Sect. 34. No justice or clerk shall receive any compensation, besides justice, &c., to
his regular salary or allowance, for making or issuing, in any capacity, uouJa'compe^'
comjilaints, warrants, subpoenas, or other criminal jiroccss, whicli he is by satiou.
law authorized to issue ; or for any service performed by him in the dis- J^; m',^x
charge of his official duties in said court.
POLICE COURT OF BOSTOST.
Sect. 35. The justices of the police court of the city of Boston shall Three justices,
continue to hold their oftices according to the tenor of their conimis- ^™ l!" ^'*" ^'
sions, and as vacancies occur others shall be ajipointed in the manner li- s. 7, § i.
provided by the constitution, so that there shall be three justices.
Sect. 36. The senior justice shall be the first justice of the court; First justice.
and when the court is not in session any justice thereof may issue war- j^eie^^a'rrant's
rants and receive complaints. &c., wben,&c.' •
Sect. 37. The assistant-clerks shall receive annu.al salaries from the ^ .'^■.**'' V''
_ , , , ^ ,, , j^ ■ I , Salaries of 38-
treasury oi the commonwealth, as lollows: the first assistant-clerk, sistaut-cicrks.
eighteen hundred dollars ; the second, seventeen hundred dollars; the
third, one thousand dollars, and the fourth, nine hundred dollars.
Sect. 38. The court shall be held for criminal business by one or court, when to
more of the justices daily in the forenoon at nine o'clock, and in the hK/l'blls'i'ne's""
afternoon, except on Saturday, at three o'clock or some hour thereafter, "■.^■'-.v^'v
It may be held on Saturday afternoons if it appeal's expedient to any of "^''' ''''"•
the justices.
Sect. 39. The court shall be held for ci\'il business by one or more for civil busi-
of the justices, weekly. Each term shall commence on Saturday, and J^''^- j,. ., j^
actions therein may be continued to any future day fixed for the sitting n. issii' iru, §'4.
«+"tI,„ „«„^f ^ ■' =• 3 Pick. 508.
01 the court. 0 i-j^k. no.
Sect. 40. Different justices may hold difierent sessions at the same nifleront scs-
time for the trial of civil or criminal cases, in any rooms in the court ^j'jj"f "* ^'""'^
house or in other places assigned by the aldermen of the city of Boston, ito^, iro, § 1.
Sect. 41. The court shall have the same jurisdiction as justices of Jurisdiction,
the peace in all civil actions and proceedings ; which shall, when all the "^"^eouciH-rent.
plaintifts and defendants reside within the district, exclude the jurisdic- k. s. sr, §11.
tion of other police courts and justices of the peace. Tlie court shall issb', liio.'
also have jurisdiction concurrently with the superior court in the county ^"'^ §§ ^^' ^^•
of Suftblk of all personal actions and jiroceedings in civil cases in which
the amount demanded or the value of the property claimed exceeds one
hundred dollars and does not exceed three hundred dollars : jvovided,
the defendants reside or have their usual place of business in the county
of Suft'olk. All cases and proceedings pending in or returnable to the Records, &c., of
justices' court for the county of Sufiblk, and the records and jurisdiction {"^'gftrred"^
of said court, .are transferred to said police court.
Sect. 42. The justices shall meet from time to time to establish justices to
necessary rules for tlie orderly and uniform conducting of the business J^'^*'' rules,
of the court, and also to arrange, distribute, equalize, and insm-e a prompt it. s. sr, § le.
and punctual discharge of their duties.
Sect. 43. The clerk of the court shall render to the board of accounts cierk to render
574
PROBATE COURTS — JURISDICTION.
[Chap. 117.
account of fees, of the county of Suffolk a quarterly account of all criminal costs and fees
R?'s. 87, § 22. taxed by him, and the board upon approval thereof shall certify the
1B59, 196. same to the treasurer of the county of Suffolk, who shall pay the same
to the persons entitled thereto.
CHAPTER 117.
OF PROBATE COURTS.
conets and jueisdiction.
Section
1. Judge and register of the court.
2. General jurisdiction.
3. Jurisdiction, first taken, effect of.
4. when not to be contested.
5. Court may enforce specific performance of
contracts of deceased persons to convey
lands.
6. Who to convey ; effect of the conveyance.
APPEALS.
7. S. J. C. to be supreme court of probate, &c.
8. Appeal.
9. when to be claimed and entered.
10. reasons of to be filed, &c.
11. omitted by mistake, &c., allowed on peti-
tion.
12, 13, 14, proceedings on petition for.
15. proceedings in probate court suspended
by, &c. — may be waived.
16. proceedings in supreme court upon.
17. when appellant fails to enter.
18. Jury trial in supreme court.
MISCELLANEOUS PROVISIONS.
19. Rules of practice, how and by whom estab-
lished.
Section
20. Judge may frame and iseue necessary war-
rants, &c.
21. Decrees, &c., to be in writing, and what
papers to be recorded.
22. Regularity of proceedings presumed in cer-
tain cases.
23. Acts in vacation.
24. Court may revoke commissions, &c.
25. Power of court as to costs.
26. Executions therefor.
27. Accountants may be sworn out of court, in
case, &c.
28. Oaths of other persons, how administered.
29. Parties may select newspaper for notice.
30. What copies register shall make free of
charge ; and for what he may receive pay.
31. Books and stationery.
32. Clerks, &e., not to be commissioners, ex-
cept, &c.
SESSIONS OF THE COURTS.
33. .Judge may keep order and punish for con-
tempt.
34. Adjournment of court.
35. No court without register.
36. Times and places of holding courts.
Judge and re-
gister of the
court.
R. S.S3,§§1,20.
1858, 93.
General juris-
diction.
R. S. M, § 3.
R. S. 83, §§ 5, 6.
1851, 256.
1851, 334.
5 Pick. 20, 370,
519.
10 Cush. 17.
2 Gray, 231.
Jurisdiction
first taken, ef-
fect of
R. S. 62, § 20.
R. S. 64, § 3.
R. S. 79, §31.
R. S. 83, § 14.
when not to
be contested.
R. S. 83, § 12.
9 Mass. 513.
5 Pick. 20, 370.
2 Gray, 231.
COURTS AND JTJRISDICTION.
Section 1. The judge and register of probate and insolvency for
each county shall continue to be judge and register of the probate court
of such county, and shall have all the jurisdiction, power, and authority,
given to judges and registers of probate respectively.
Sect. 2. The probate court for each county shall have jurisdiction
of the probate of wills, granting administnation of the estates of persons
who at the time of their decease were inhabitants of or resident in the
county, and of persons who die without the state leaving estate to be
administered within such county ; of the appointment of guardians to
minors and others, and of all matters relating to the estates of such
deceased persons and wards; and of petitions for the adoption of chil-
dren and the change of names.
Sect. 3. When a case is wthin the jurisdiction pf the probate court
in two or more counties, the court which first takes cognizance thereof
by the commencement of proceedings, shall retain the same; and admin-
istration or guardianship first granted shall extend to all the estate of
the deceased or ward in this state, and exclude the jurisdiction of the
probate court of every other county.
Sect. 4. The jurisdiction assumed in any case by the court, so far as
it depends on the place of residence of a person, shall not be contested
in any suit or )ii-occeding, except in an appe.al in the original case, or
when the want of jiuisdiction appears on the same record.
Chap. 117.] probate courts — appeals. 575
Sect. 5. When a person who has entered into a written agreement Court may en-
for the conveyance of real estate dies or is put under guardianship before p"rt^i?^"„peof
making such conveyance, the probate court shall have iurisdiction con- contracts of de-
=' . , , •' .,*.., ^ ^ ,. ** .^ ,^ erased persons
current with the supreme judicial court to entorce a specific perlorm- to convey lands.
ance, and upon a petition therefor presented by any person interested in }'^J ^S\'-
the conveyance, shall order the petitioner to give notice to all persons 7 Gray ,'533'.
interested, that they may appear and show cause either for or against
the prayer of the petition.
Sect. 6. If upon the hearing it appears that the deceased, if living, WTio to convey;
or the ward, if not under guardianship, would be required to make the effect of convey-
conveyance, the court shall order the executor or administrator of the 1^35,374, §2.
deceased or the guardian of the ward to make the same ; and when so '
made it shall have like force and effect as if made by the person who
entered into the agreement to convey.
APPEALS.
Sect. 7. The supreme judicial court shall be the supreme court of s. .t. c. tobc
probate, and have api»ellate jurisdiction of all matters determinable by oi'p'r'obat™&c.
the probate courts and the judges thereof, except in cases in which other «• S- w, §»:i.
provisions are specially made.
Sect. 8. Any person aggrieved by an order, sentence, decree, or Appeal.
denial, of the coi'rt or judge, except in cases otherwise provided for, h'smI^iw.**'
may appeal therefrom to the supreme judicial court. 8 Cush. 529. 6 Gray, 137. !' "^'''- ■^?"-
Sect. 9. The appeal shall be claimed and notice thereof given at the ^ijontobe
probate office within thirty days after the date of the act a]ipealed from, cinimed anden-
and be entered in the su]>reme judicial court at the rule day appointed Jil^s.'&i, §§ 34,
by said court for the same county, next after the expiration of fiftv davs w-
from the date of the act so appealed fi-om. it.5u, 237, § 12.
Sect. 10. The appellant shall file in the probate office his reasons of reasons of to
appeal, and cause an attested copy thereof to be served on the adverse k. s.'s3,*37.
party fourteen days at least before the time when the appeal is to be
entered.
Sect. 11. If a person aggrieved omits to claim or prosecute his omittedhy
, . , 1 ,.' , 1 •'' , ,1 J i- 1 i -r •» mistake, A-c.,al-
appeal, without default on his part, the supreme court of probate, it it lowed on peti-
appears that justice requires a revision of the case, may on the petition jj™; g.,, 539,
of the jiarty aggrieved, and upon such terms as it deems reasonable, 1 Gray, 522.
allow an appeal to be entered and prosecuted with the same effect as if
it had been done seasonably. Such petition may be entered in the
clerk's office at any time, and the order of notice thereon may be made
returnable at a rule day.
Sect. 12. Such appeal shall not be allowed without due notice to proceedings
the party adversely interested, nor unless the petition therefor be filed j" ?'. (i)J°§4o?'^'
within one year after passing the decree or order complained of, except
as provided in the following section.
Sect. 13. If the jietitioner was without the United States at the j.J'^^^^J'if'^-
time of passing the decree or order, he may file his petition at any time
within three months after his return, and within two years after the act
complained of.
Sect. 14. Appeals and petitions for appeal shall be entered on a entry of, &c.
docket with cases in equity, and shall have the same rights as to hear-
ing and determination as such cases.
Sect. 15. After an appeal is claimed, and notice given at the probate proceedings
office, all proceedings in pursuance of the order, sentence, decree, or loiin' Bu^-pcnd-
denial appealed from, shall cease until the determination of the supreme '■''^''''t;/;^;,"^^
court of probate is had ; but if the appellant in writing waives his appeal u, s. S3, § 43.
before the entry thereof, proceedings may be had in the probate court 4Cush.40.
as if no appeal had been taken.
Sect. 16. The supreme court of probate may reverse or affirm, in proceedings
576
PROBATE COURTS MISCELLAMEOUS PROVISIONS. [ChAP. 117.
m supreme
court upon.
E. S. s:i, § «.
Proeoocliu'^^B
when upitilhmt
fails to iMirer
his appeal.
E. S. M, § 45.
Jury trial in su-
preme court.
E. S. S3, § 46.
whole or in part, the sentence or act appealed from, and may pass such
decree thereon as the probate court or judge ought to have passed, and
remit the case for further proceedings, or take any other order therein,
as law and justice shall require.
Sect. 17. If the appellant fails to enter and prosecute his appeal,
the supreme court of probate may, upon the complaint of any ])erson
interested, affirm the former sentence or take such other order as law
and justice shall require.
Sect. 18. If, upon the hearing of an appeal in the supreme court of
probate, any question of tact occurs proper for trial by jury, the court
may cause it to be so tried upon an issue formed for the purpose under
the direction of the court.
Eules of prac-
tice, how aud by
whom estab-
lished.
E. S. S3, § 8.
Judge may
frame aud issue
necessary war-
rants, &e.
E. S. S3, § 9.
Decrees, Ac, to
be in writiu;^,
and what pa-
pers to be re-
corded.
E. S. 83, § 7.
6 Met. 369.
Eegularity of
proceediugrs
presimied iu
certain cases.
E. S. 83, § 13.
Acts in vaca-
tion.
E. S. 83, § 4.
Court may re-
voke commis-
sions, &c.
E. S. 83, §31.
Power of court,
as to costs.
E. S. Ki, § 47.
7 Gray, 472.
Executions
therefor.
E. S. 83, § 48.
Accountants
UnSCELLANEOITS PEOTISIONS.
Sect. 19. The several judges shall fi-om time to time make rules for
regulating the practice and conducting the business in their courts in all
cases not expressly provided for by law ; and shall return a statement
of their rules and course of proceedings to the supreme judicial court,
as soon as conveniently may be after making the same. The supreme
judicial court may alter and amend the same, and make other and
further rules from time to time for regulating the proceeding in the pro-
bate courts as it deems necessary, iu order to secure regularity and uni-
formity in the proceedings.
Sect. 20. The judge shall make and issue all warrants and processes
necessary or proper to carry into effect the powers granted to him ; and
when no form for a warrant or process is prescribed by statute or the
rules of the court, he shall frame one in conformity with the principles
of law, and the usual course of proceedings in this state.
Sect. 21. All his decrees and orders shall be made in writing, and
the register shall record, in books to be kept for the purpose, all decrees
and orders, wills jiroved in the court, with the ]M-obate thereof, letters
testamentary and of administration, w.aiTants, returns, rejjorts, accounts,
and bonds ; and all other acts and proceedings required to be recorded
by the rules of the court or a special order of the judge.
Se(::t. 22. When the validity of a decree is drawn in question in
another suit or proceeding, every thing necessary to have been done or
proved in order to render the decree valid, which might have been
proved by parol evidence at the time of making the decree, and was not
required to be recorded, shall after twenty years from such time be pre-
sumed to have been done or proved, unless the contrary a])pears on the
same record.
Sect. 23. Orders of notice and other official acts which are passed
as matters of course and do not require a previous notice to an adverse
party, may be made and done in vacation as well as in court.
Sect. 24. Any warr.ant or commission for the a])]iraisement of an
estate, for examining the claims on insolvent estates, for the partition of
real estate, or for the assignment of dower or other interests in real
estate, may be revoked by the judge for sufficient cause ; and he may
thereupon issue a new commission, or proceed otherwise as the circum-
stances of the case shall require.
Sect. 25. In cases contested either before the probate court or su-
preme court of probate, costs in the discretion of the court may be
awarded to either party, to be paid by the other, or to either or both
parties to be jiaid out of the estate which is the subject of the contro-
versy, as justice and equity shall require.
Sect. 26. When costs are awarded to be paid by one party to the
other, said courts may is.sue execution therefor in like manner as is prac-
tised in the courts of common law.
Sect. 27. When an executor, administrator, guardian, or trustee,
Chap. 117.J probate courts — sessions. ^'j^j
who is required to make oath to an account, is unable by reason of may be sworn
sickness or otherwise to attend personally in the probate court, the ^5e''&c""^' *"
judge may administer the oath to the accountant out of court, or may e.s'. 83,529.
by his commission authorize a justice of the peace to administer it.
And a certificate of the oath with the account and vouchers produced
therewith, :ind the commission, if any, shall be returned into the registry
of probate and there tiled and recorded.
Sect. 28. x\ll other oaths required of executors, administrators, oaths of other
guardians, and trustees, and all oaths required of commissioners of in- PCTsons how
1 • T • 1 ^ ^ ^ T , ... administered.
solvency, appraisers, dividers ot estates, and other persons, m relation k. s. i5,§4«.
to any proceeding in the court, may be administered by the judge or {^^sTi'.*^"'
register in or out of court, or by a justice of the peace, or by the city or
town clerk where there is no justice of the ])eace, and a certificate
thereof, when administered out of court, shall be returned into the
registry of probate and there filed and recorded.
Sect. 29. Persons having business in tlie court may select such Parties may se-
newspapers as they may prefer for the publication of "legal notices forMo'tice'"'^"
ordered upon their applications, but if the judge deems thenewspajjer isoi.ias. '
thus selected insufficient to give due publicity, he may order the publica-
tion in one other newspaper.
Sect. 30. The register shall make, ■nithout charge, one copy of all what eoiiies
wills iiroved, inventories returned, and accounts settled; of all partitions ''<'!;'»''■■; shall
i- 1 ^ » 1 ■ ^ f ^ 1 L- 11 1 11 make, free of
of real estate and assignments ot dower; and ot all orders and decrees chaijje; and for
of the court; and shall deliver the same when demanded to the exeeu- "0''" ' pay""'"^^"
tor, administrator, guardian, widow, heir, or other jiarty principally n- ^- >^'> § =3.
interested. For additional copies of such documents, and copies of
other jjapers, he shall be paid by the person demanding the same at the
rate of twelve cents a page.
Sect. 31. Each county shall provide all books necessary for keeping Books and sta-
the records and all printed blanks and stationery used in probate pro- j{'"s'^s:i 654
ceedings. r Gray, '«.;.'
Sect. 82. No clerk or other person em])loyed in the office of a pro- clerks, &e., not
bate court shall be commissioner of insolvency or a])praiser or divider of s°ouerB"cxcent
an estate in anv case within the iurisdiction of the court, unless his &e.
appomtment is requested by aU parties in interest. 1839, iw, «a.'
SESSioxs OF the coijets.
Sect. 3.3. The judge may keep order in court and punish any con- Judgemaykeep
temjit of his authority in like manner as such contempt might be pun- ^''^^^f^jjo
isheil in the superior court.
Sect. 34. He may adjourn the court as occasion requires; and when Adjournment of
he is absent at the time appointed for holding a court, the register shall 5{''s''83 §3
adjourn it as he thinks necessary, or as ordered by the judge ; the regis- isao, 41.'
ter may also adjourn the court when there is a vacancy in the office of
judge.
Sect. 35. No court shall be held by adjournment or otherwise txnless No court with-
the register, assistant-register, or a temporaiy register is present. k"Vm^?20
Sect. .36. Probate courts shall be held in each year at the times and Times and
within the cities and towns hereinafter mentioned, in such iilaces therein pii"^e>' ofhoid-
i_ 1 • 1 1 11 /» • ■ . rt» ■ . /> ingr courts.
as trie several judges sliall from time to time appoint ; sumcient notice ot Const. Ch. 3,
which appointments shall be given by the respective judges as often as n'^g^gs §§2 35
changes take place, by advertisement in some newsjiaper, or by posting sn, 57.
the same in some public places, viz. : — 3^ck! sos.
For the county of Suffolk, at Boston, on every Monday in each Suffolk.
month, exeejit July : '^'^' ^*-
- For the county of Essex, at Salem, on the first Tuesday of each r^ s^'s3, § 55.
month; at Lawrence, on the second Tuesday of each month, except jm'42^'
April, Jlay, July, August, and October ; at Gloucester, on the second isso! 1.
49 73
578
PROBATE COURTS — SESSIONS.
[Chap. 117.
Middlesex.
1S57, 78.
Worcester.
1S37, 141.
1848, 235.
1854, 318.
1856, 162.
Hampshire.
K. S. Ki, § 55.
1S43, 40.
Hampden.
1850, asr.
Franklin.
K. S. 8.3, §
1850, 244.
Berkshire.
1857, 16.
Norfolk.
1{. S. S3, § 55.
1844, 127.
Brifltol.
1S57, 149.
Tuesday of April and October; at Newburyport, on the third Tuesday
of each month, except March, May, August, September, and Novem-
ber; at Haverhill, on the third Tuesdays of May and November; at
Ips^^-icli, on the third Tuesdays of March and September :
For the county of 3Iiddlesex, at Cambridge, on the second Tuesdays
of each month, (except July,) and on the fourth Tuesdays of January,
February, March, April, August, November, and December ; at Lowell,
on the first Tuesdays of February, A]iril, June, September, and Decem-
ber ; at Concord, on the first Tuesdays of January, March, May, and
October; at Groton, on the fourth Tuesdays of May and September;
and at Framinghani, on the fourth Tuesdays of June and October:
For the county of Worcester, at West Brookfield, on the second
Tuesdays of May and October; at Clinton, on the third Tuesdays of
May and October ; at Templeton, on the Thursdays next after the
third Tuesdays of May and October ; at Ban-e, on the Fridays next
after the third Tuesdays of May and October; at Milford, on the fourth
Tuesday of May and the Wednesday next after tlie fourth Tuesday of
October; at Uxbridge, on the fourtli Tuesday of October; at Fitchburg,
on the Wednesdays next after the third Tuesdays of May and October;
and at Worcester, on the first Tuesdays of every month :
For the county of Hampshire, at Northampton, on the first Tuesday
of every month ; at Amherst, on the second Tuesdays of January and
August ; at Belchcrtown, on the second Tuesdays of May and October;
and at Chesterfield, on the third Tuesdays of May and October:
For the county of Hampden, at Sjiringfield, on the first Tuesdays of
January, February, March, A]iril, June, July, and November; and on
the fourth Tuesdays of Ajiril, August, and September; at Westfield, on
the third Tuesdays of March, June, September, and December ; at Mon-
son, on the second Tuesday of June; and at Palmer, on the second
Tuesday of September :
For the county of Franklin, at Greenfield, on the first Tuesday of
every month except November; at Northfield, on the second Tuesday of
May and September; at Orange, on the second Tuesday of jMarch and
December; at Lock's Village, in Shutesbury, on the second Tuesday of
July ; at Conway, on the third Tuesday of May ; at Charlemont, on the
fourtli Tuesday of May ; at Shelburne Falls, on the second Tuesday of
February and fourth Tuesday of October :
For tlie county of Berksliire, at Lenox, on the first Tuesdays of Jan-
uary, February, ilarch, Ajiril, May, June, Se])tember, October, and De-
cember, on the third Tuesday of July, and on the second Tuesdaj' of
November ; at Great Barrington, on the Wednesdays next after the first
Tuesdays of February and May, next after the third Tuesday of July,
and next after the second Tuesd.ay of November ; at Lanesborougli, on
the second Tuesdays of January and October, and on the fourth Tues-
days of April and July ; at Adams, on the Wednesdays next after the
second Tuesdays of January and October, and next after the fourth
Tuesdays of Ajiril and July :
For the county of Norfolk, at Dedham, on the first Tuesday of every
month; at Quincy, on the fourth Tuesdays of February, May, August, and
November; at Roxbury, on every Saturday, excejit the third, fourth, and
filth Saturdays of July, and the first and second Saturdays of August ;
at Wrentham, on the third Tuesdays of May, August, and November;
at Medway, on the third Tuesdays of February, June, and October:
For the county of Bristol, at Ta\inton, on the first Tuesdays of Jan-^
nary, March, and .June, and on the Friday next after the first Tuesday of
November; at New Bedford, on the first Tuesday of February, on the^
Friday next after the first Tuesday of May, on the last Tuesday ot-
August, and on the first Tuesday of December; at Pawtucket, on the
first Tuesday of April ; at Fall 'River, on the Fridays next after the
Chap. 118.]
COURTS OP INSOLVENCY.
579
first Tuesdays of April and July, and on the first Tuesday of October;
at Attleborougli, on the first Tuesday of May; at Norton, on the first
Tuesday of July ; at Seekonk, on the first Tuesday of Sejitember; and
at Rehoboth, on the Friday next after the first Tuesday of September:
For the county of Plymouth, at PlJ^uouth, on the third Mondays of Pij-mouth.
January, February, and May, on the second Mondays of April and Au- {lif'ra''^^*'
crust, and on the first Monday of December; at Scituate, on the first isso^ioi.
Tuesday of June, and last Tuesday of Xovember ; at Hingham, on the ipslsao!
first Tuesday of ^Nlarch and last Tuesday of August; at East Bridge- 1*50,122.
water, on the first Tuesdays of April, July, and October; at Bridgewater,
on the last Tuesday of February ; at Xorth Biidgewater, on the last Tues-
day of July ; at Middleborough, on the first Tuesdays of May and August,
and last Tuesday of October ; at Wareham on the Wednesdays next af-
ter the first Tuesdays of May and November ; at Abington,on the second
Monday of January ; and at Hanover, on the last Momlay of September :
For the county of Barnstable, at Barnstable, on the second Tuesdays Barnstable,
of January, February, March, August, September, and December, and mf^ifs^^u'
on the third Tuesdays of May and June; at Sandwich, on the sec- I85.%r4'
end Tuesday after the first Monday of November; at Falmouth, on the '' "■*■
second Wednesday after the first Monday of November ; at Harwich,
on the third Monday of April and the last Monday of October ; at
Brewster, on the Tuesday next after the thii-il Monday of April ; at
Dennis, on the Thursd.ay next after the second Tuesday of October; at
Orleans, on the Wednesday next after the third Monday of April •■uid
on the Tuesday next after the last Monday of October ; at Wellfleet,
on the Wednesday next after the la.st Monday of October ; at Truro, on
the Thursday next after the third Monday of A]iril ; and at Province-
town, on the Friday next after the third Monday of April and on the
Thursday next after the last Monday of October.
For the county of Dukes County, at Tisbury, on the third Monday of Dukos Cmmty.
April and on the first ^Mondays of March and Sejitember; at Edgar- i^-.n'.!^ ^*^'
town, on the third Mondays of January and July, and on the first issu', so.
Mondays of June and December ; and at West Tisbury, on the third
Monday of October :
For the county of Nantucket, at Nantucket, on the first Tuesday of Nantucket.
every mouth. ^^^' i'^'-
CHAPTER 118.
OF COURTS OF INSOLVENCY.
general provisions.
Section
1. Courts of insolvency. .Judges. Registers.
2. to have original jurisdiction, *c.
3. to be held in shire towns, &c. Adjourn-
ment of.
4. Judge may approve bonds, Ac.
5. may punish for contempt, .idminister
oaths, &c.
Proceedings to be matters of record. Evi-
dence.
Register, duties of. Docket.
may administer oaths and adjourn court,
fees of, for copies.
Pocket, A'C.open to inspection.
Warrants, &e., when returnable, &c., how
executed, &c.
12. Parties may select newspapers.
1.3. Counties to furnish court rooms, and room
for records, &c.
0.
lO.
.1.
Section
14. Commonwealth to pay expenses.
15. Judges may make rules, &c.
16. Jurisdiction, &e., of S. J. C.
APPLIC.\TIONS BY THE DKBTOR. FIRST
MEETING.
17. Who may petition, A-c.
18. Judge to issue warrant to messenger. Con-
tents of warrant.
10. Messenger to receive debtor's property.
20. Debtor to deliver property and seiiedule.
21. Perishable, &c., property may be sold bo-
fore appointment of assignee.
22. First meetiug. Ketum of warrant. Sched-
ules.
23. If no notice, meeting adjourned.
24. If debtor dies, proceedings to continue.
DEBT.S .\XI> PROOF OF CLAIMS.
25. What debts and demands may be proved.
580
COURTS OF INSOLVENCY.
[Chap. 118.
Section
26. Slutual debts may be set off,
27. Provision in case of mortgage, pledge, or
lien.
28. Claims to be proved on oath. Form of
oath.
29. Oath may be made by attorney,
30. before a justice of the peace.
31. Certain claims may be postponed.
32. Claims in certain cases not to be allowed.
33. Judge to allow debts proved. Creditor
may act by attorney.
34. Appeal from judge's decision on claims.
Entry of appeal.
35. Proceedings on appeal.
36. Judgment on appeal. Costs.
37. Evidence of claims may be withdrawn by
leaving copy attested, &c,
ASSIGNMENT AND ASSIGNEE.
38. Assignee, choice of, &c.
39. judge to approve, and may order new
electiou, &c.
40. to give bond, &c.
41. failing to give bond, to be removed.
42. judge to assign property to.
43. to record assignment and give notice,
44. Effect of assignment.
45. Attachments, how preserved.
46. Assignee to demand and sell estate, and
keep accounts.
47. to commence and prosecute suits, which
shall not abate on his death.
48. Certain drafts, &c., assigned, not to be off-
set, &c.
49. Money and property of debtor to be kept
separate by assignee.
50. court may direct temporary investment
of, when, &c.
51. Assignee to give notice of meetings.
52. compeusatioa of.
53. may submit controversies to arbitration.
54. may sell perishable property pending dis-
pute of title. Property recovered by action,
&c.
55. to certify and render accounts.
56. removal of, by creditors.
57. by judge upon complaint,
58. when out of state and refusing to obey,
&c., or any cause,
59. may resign.
60. vacancies in office of, may be filled by
appointment or election.
61. effect of resignation, &c., of,
62. vesting of estate upon death, &;c., of.
63. former to execute deeds, &c. Judge to
pass orders for fulfilment of duties, &c.,of.
64. preferred creditors not to vote for, &c.
Ineligibility of, not to affect titles.
65. penalty on, for neglect, &c.
EXAMINATION, &C., OF DEBTOR.
66. Debtor to submit to examination.
67. examination of, when in prison.
68. when sick or unable to attend.
69. when out of state mthout wilful default.
70. to do acts necessary to confirm the as-
signment and enable assignee to recover,
&c.
71. proceedings against, for refusing to exe-
cute instruments or obey decrees of judge,
&c.
SECOND AND THIRD MEETINGS. OATH AND
DISCHARGE.
72. Judge to appoint second meeting. Debtor
may amend schedule of creditors. Oath.
Section
73. Upon failure to call or hold meeting, court
may order.
74. If meeting liable to be defeated, register
may call on order of judge.
75. Third meeting. Certificate of discharge.
76. Effect of discharge.
77. Debtor imprisoned, &c., to be discharged
on certificate.
78. discharged from arrest, &c., and property
exempt from attachment, &c.
79. Debts arising from defalcation and claims
for necessaries not discharged.
80. Sureties, &c.
81. Discharge by assent of creditors.
82. upon second and third insolvency.
83. Creditors may assent notwithstanding ap-
peal.
84. Debtor failing by accident, &c., to take
oath, may be discharged.
85. Appeal from decision of judge on questioD
of discharge.
8li. Proceedings on appeal.
MATTERS AVOIDING DISCHARGE.
87. Discharge forfeited by proceedings in fraud
of creditors. Who may contest.
88. Fraudulent preferences avoid a discbarge.
PREFERENCES.
89. Fraudulent payments, &c., void. Creditor
not to prove claim.
90. Preceding sections not to apply to necessa-
ries.
91. Sales, Ac, to prevent property from com-
ing to assignee, &c., void.
ALLOWANCE AND SURPLUS.
92. Allowance to debtor.
93. in case of death.
94. Surplus to be returned to debtor.
ACCOUNTS AND DIVIDENDS.
95. Assignee to exhibit accounts on oath if re-
quired. Judge to order dividend.
96. Preferred claims.
97. Reservation for absent creditors.
98. Second dividend. Assignees' accounts.
99. Outstanding debts, &c., may be sold.
100. Suits on claims sold by assignees. Costs.
101. Further dividends if nec<?8sary.
102. Former dividends not to be disturbed.
APPLICATIONS BY CREDITORS.
103. Applications by creditors.
101. Warrant to issue. Proceedings thereon.
105. If attachment is not dissolved through ac-
cident or mistake, proceedings may be
stayed.
CONCEALMENT OF PROPF-KTY, &C.
106. Debtor to be deemed guilty of misde-
meanor in certain cases.
107. Proceedings against persons fraudulently
concealing, &c., property, &c.
PARTNERSHIPS.
108. Proceedings in case of partners.
109. Choice of assignee and afljustment of joint
and separate property and debts.
110. Provision in case of limited partnerships.
111. Separate allowance to each partner.
112. Certificate of discharge to each partner,
INSOLVENT CORPORATIONS.
113. Corporations may petition by authorized
officer.
Chap. 118.] courts of insolvency — general provisions. 581
Section
114. Proceedings similar to those against a
pi.'rsuu.
llo. Chiiins before last dividend provable.
110. Si;iiedulcs. Duties, .tc, of officers. Oath.
117. Kraucliise of corponitious autiiorized to
tuke toll, may be sold. Purchaser may-
have corporation organized anew.
118. Property may be sold ia shares, and pur-
chasers organized.
119. Land damages preferred claims.
120. Void preferences.
121. No allowaace or discharge to corporation,
&c.
12-*. Proceedings against a corporation.
r,';!. llc'ii mjttion of mortgages.
V^i. ilurtgagL'6 not affected.
FEES AND COSTS.
125. Fees for warrant, &c.
Section
12G. Register to receive and account for fees.
127. Costs when attachments are dissolved.
128. award of.
129. execution may issue for.
VACATING PBOCEEDIXGS.
130. Proceedings may be vacated.
RETURNS.
131. Judges to make returns. Returns to be
recorded and open for inspection.
CASES BEFORE COMMISSIONERS, &0.
132. Jurisdiction of commissioners, &c., in cases
pending.
133. Removal of cases upon death, &c., of com-
missioner, &c.
134. papers, &c., to be deposited in probate
office.
GENERAL PROVISIONS,
Section 1. The couits of insolvency in the several counties shall Courts,
continue courts of record, and the judges and registers of probate and te^rsf^^* ^^^''
insolvency in their respective counties shall be judges and registers issfi, 2>h,§i.
,1 n IKS'*, .32, § 1.
tbereot. igsg, 93.
Sect. 2. The courts shall have original jurisiliction in their respec- to have on^
tive counties of all eases of insolvency arising under the provisions of tion.Tc. "^
this chaiiter. isssl 9:i,'§ 10.
Sect. 3. Each court- sliall be held at the shire towns of the county tobciicidiji
at such times as the judge apjioints, and may be held at such other io."^ "°^'
places as will best i)rouiote the convenience of the public. The iud<i;e J?-!??' '?■'}' f '*•
may adjourn a}iy court or meeting trom time to time as occa.sioii re- igas, as, §11.
quires, and all tilings lawfully done at an adjourned meeting shall have 4Cush*5s4
like force and eftect as if done at the original meeting. 8 Gray, 193.
Sect. 4. The judge may in vacation as well as in court approve Judge may ap
comjiositions and assignees' bonds, approve or order sales, receive peti- ^"^'^ ''"" ^'
tions, issue ordere of notice and warrants, and do such other official acts issc, 2»4, §4-
as are done as matters of course and do not require notice to an ad-
verse party.
Sect. 5. The judge may keep order in his court, and punish any may punish
contempt of his authority ; administer o.ith.s, issue commissions, take adniiu'isur'' '
testimony, and compel the attendance of witnesses and the Ji'ivina; of °'|,!''^'*''^ ,„
testimony, in the same manner and to the same extent as the superior issc, 284, §§7,9.
court ; and may apjioint such otticers to attend upon the court as are "^^'■'' *'''•
necessary for the transaction of its business and keeping order therein.
Sect. 6. The proceedings in courts of insolvency shall be deemed Proceerting-s to
matters of record, and the assignment and certificate of dischaige shall record"* Evi-
be recorded in full. The other iiroceedings need not be recorded at <i™ce.
. 18-38 103 6 14
large, but shall be carefully filed, kept, and numbered, in the office of isssj 32, '§§ 1,2.
the register. Copies of all ])arts of the records, and of records of prior ^ p,|'*i,''|';'*g
proceedings in insolvency deposited in his office, duly certified by the c Cushl iss,' 362.
register, shall in all cases be admissible as evidence, prima facie, of the i^orayl'-^i'
facts therein stated.
Sect. 7. The register shall keeji a docket with an al])habetical index of Register, duties
all cases in court, in which he shall enter short memorandums, with the picket,
numbers, of all ]iroceedings and papers filed. He [shall] make all com- Jf?i'S''!n
pututions of dividends and orders of distribution, and shall furnish to igss',' 32, '§§ 1, 2.
the assignee a certified co]3y of such orders, and of the schedules of Jo^cubIi'ms^^^'
creditors and assets filed in each case.
Sect. 8. He may administer all oaths required in the course of pro- , may adminis-
,.,„,*' , ti-111 • ter oaths and
ccedmgs before the court, except the oath described by section seventy- adjourn court.
"49*
582
COURTS OF IXSOLVEXCY — APPLICATION BY DEBTOR. [ClIAP. 118.
1S3S, 1(13, § 14.
1850, 284, § !.■).
1S5S, 141, § 5.
fees of, for
copies.
1850, 284, § 22.
Docket, &c.,
opea to inspec-
tion.
1850, 2S1, § 13.
Warrants, &c.,
when return-
able, &c.
1SH8, 304, §fi.
1850, 284, § 6.
Tarties may se-
lect newspa-
pers.
1851, 138.
Counties to fur-
nisli court
rooms, and
room for rec-
ords, &c.
1850, 2S4, § 3.
Commonwealth
to pay ex-
penses.
1850, 284, §23.
Judges may
maice rules,
&c.
1850, 284, § 10.
Jurisdiction,
.fee., of S.J. C.
1838, 163, § IS.
185 1, .327, § 10.
2 Met. 509, 573.
4 Met. 3a2, 5IM.
6 Met. 537.
8 Met. I'J.
9 Met. 23, 409.
1 Cusll. 170,449.
2 Cush. 294.
4Cush. 127,270,
448
7 Cusll. 181, 183.
10 Cusll. 173.
11 Cush. 582.
1 Gray, 584.
3 Gray 239, 242,
248, 533.
4 Gray, 431.
Who may peti-
tion, &c.
18.38, 103, § 1.
1S41, 124, § 1.
1855, 303, § 1.
1.H58, 93, § 10.
4 Met. 401, 403.
7 Met. 427.
8 Met. 129.
1 Cush. 531.
Judgfe to issue
warrant to mes-
senger.
Contents of
warrant.
18.38, ira, §§ 1, 2.
1841, 124, § 1.
1844, 178, S 10.
two ; and in tlie absence of the juclge or a vacancy in that office he may
adjourn a court or meeting.
Sect. 9. For copies of orders for disti-ibution and of schedules, in
addition to those required by law, and for copies of other pa])ers, lie
shall be paid by the person demanding the same, at the rate of iburteeu
cents a page, and no more.
Sect. 10. The docket, and all books, records, documents, and papers,
iu his office, relating to insolvency, shall at all reasonable times be open
to the inspection of the ]iublic.
Sect. 11. All assignments, warrants, orders of notice, and processes,
issuing from the court, shall be under the seal thereof, and shall be
executed and obeyed throughout the commonwealth ; and any officer or
person to whom "they are legally directed may serve the same in any
county. All warrants shall be returnable not less than ten nor more
than si.xty days from the issuing of the same.
Sect. 12. Persons having business in court may designate the
newspa|)ors in which notices under their a]iplications shall be published;
but if tile newspapers thus selected are deemed by the judge insufficient
to give publicity to the notice, he may order publication in one other
newspajjor.
Sect. 13. E.ach county shall provide suitable court rooms in the
shire towns; and a suitable lire-jjroof room, in which shall be kept all
the records, books, documents, ami papers, appertaining to the business
of the court, and the records in all cases in iusoheney.
Sect. 14. All expenses attending the sessions of the courts, and the
transaction of business therein, for blank books for records, and for
blank forms and stationery necessary for the business of the courts,
shall be jtaid out of the treasury of the commonwealth.
Sect. 15. The judges or a majority of them shall from time to time
make rules in writing for regulating the practice and conducting the
business of the courts in all cases not provided for by law. They .shall,
as soon as conveniently may be after making and adopting such rules,
submit a co|)y thereof to the supreme judicial court for approval, and
amendment or alteration.
Sect. 10. The supreme judicial court shall have a general su]ierin-
tendence and jurisdiction of all cases arising under this cha]iter ; and,
exce))t when special ]irovision is otherwise made, may, upon the bill,
petition, or other proper jirocess, of any party aggrieved, hear and
determine the case as a court of equity. It may from time to time
make such general rules and forms as it deems necessary to establish
and maintain a regular and uniform course of proceedings in all the
countie.s. The powers thus granted may be exercised either by said
court or by any justice thereof in term time or vacation, except that
general rules and forms shall be made only at a law term.
applications by the debtor, first meeting.
Seht. 17. Any inhabitant of this state owing debts contracted while
such inhabitant, may apply by petition to the judge for the county
within which he resides, setting forth his inability to pay all his debts,
and his willingness to assign all his estate and effects for the lieuefit of
his creditors, and praying that such proceedings may be had in the
premises as are provi<led in this chajiter.
Sect. 18. If it ajipears to the satisfaction of the judge that the
debts due from the a])plicant amount to not less than two hundred dol-
lars, he shall forthwith issue a warrant under his hand to the sheriff of
the county or either of his deputies, directing him forthwith as mes-
senger to take possession of all the estate real and personal of the
debtor, except such as may be by law exerajst from attachment, and of
Chap. 118.] couets of insolvency — proof of claims. 583
all his deeds, books of account, and papers, and keep the same safely ima, ins, § 4.
until the appointment of an assignee; to i)nblish notice in such news- jyj'o, ?!«! ^^ ^' ^"
papers as the warrant specifies, send written notice by mail or otherwise 1^?]' .l:i;"*' |V
to all creditors upon the schedule furnislicd him by the debtor, and to ■.; Mct.l'iis.
give such personal or other notice to any persons concerned as the war- jo^ji'i*;^
rant prescribes ; which notice shall state : — 7 Cusii. 144.
First. That a warrant has issued against the estate of the debtor : ^ ^"'^'' ~*^-
Second. That the payment of any debts, and the delivery of any
property belonging to such debtor, to him or for his use, and the trans-
fer of any property by him, are forbidden by law :
Third. That a meeting of the creditors of the debtor to prove their
debts and choose one or more assignees of his estate, will be held at a
court of insolvency to be holden at a time and jilace designated in the
warrant, not less than ten nor more than sixty days after the issuing of
the same.
Sect. 19. The messenger shall as soon as may be demand and re- Mosspnpror to
ceive fi-om the debtor and other persons all the estate in his or their p'r'o'piM'ty! ''""^'^
possession respectively, which is herein ordered to be assigned, witli 'J^'^ "■^i. §•!■
all the deeds, books of account, and jiapers, of the debtor, relating 2'cush'. 4s.'
thereto. ^ 3 (jray, -.^a.
Sect. 20. Upon demand made by the messenger under the preeed- Debtor to do-
ing section, the debtor shall forthwith deliver to him such jjart of the a,l,rsKui^f
estate and other things demanded as is within his ])ossession or power, jS;;'.'';:!' |^-
and shall disclose the situation of such jiarts thereof as arc in the pos- in.54! s-.-o! §3!
session of any other person, so as to enable the messenger to demand j; jJ^J; ^j'' ''^'
and receive the same. The debtor shall also within three days after the 9 Met. 292.
date of the warrant make and deliver to the messenger a schedule, con- jGrayim
taining a ftdl and true account of all his creditors, with the place of
residence of each creditor, if known to the debtor, and the sum due to
each of them. The schedule shall also set forth the nature of each
debt, whether founded on written security, account, or otherwise, and
also the true cause and consideration thereof, and a statement of any
existing mortgage, pledge, or other collateral security, given for the
payment of the same.
Sect. 21. When it appears to the satisfaction of the judge that tiie PerishaWe, *c.,
estate of the debtor or any part thereof is of a perishable nature, or i'o'soidL"ore
likely to deteriorate in value before an asssignee can be appointed, he :'!^'l'"'j'|''"'™' °^
may order the same to be sold in such manner as he deems expedient, 'i,vin7:;ih,§is.
under the direction of the messenger, who shall hold the funds received,
in place of the estate disposed of
Sect. 22. At the meeting held in pursuance of the notice the mes- First meeting,
senger shall make return of the warrant and of his doings thereon, and «'-t^'"-" of war-
deliver to the register the schedule of creditors received from the srhe.iuies.
debtor; and at the same meeting, or within such further time as the mn i!!4!§2.'
court may, for cause shown, allow therefor, the debtor shall deliver to l^^^^^f^^'
the register a schedule of all his real and personal estate, giving a
description of the same and stating where it is situated.
Sect. 23. If it appears to the judge that the notice to the creditors iino notice,
required by section eighteen has not been given, he shall forthwith j^lirac,?. ^'
adjourn the meeting and order such notice. is4s, 304, §8.
Sect. 24. If the debtor dies after the issuing of the warrant, the pro- if cM)tm- dies,
ceedings shall be continued and concluded in like manner and with like conthui'""^
validity and efiect as if he had hved. '***• i"-', §5.
debts a2*d proof of claims.
What debts and
Sect. 25. Debts due and payable from the debtor at the time of the d;,„^ndfraay
first ]mblication of the notice of issuing the warrant may be proved and b'; prove '
allowed against his estate at any meeting ; and all debts at that time 7^12'^ 13.
584 COURTS OP INSOLVENCY — PROOF OF CLAIMS. [ChAP. 118.
" :sret. 62. absolutely due; .altliougli not payable, may bo proved and allowed as if
0 Met! 203 305 payable, with a discount or rebate of interest when no interest is pay-
537- able by the contract. Moneys due on any bottomry or resjiondentia
435. ' ' ' bond or policy of insurance may be proved and allowed, if the contin-
io*M*t 'io4 ""' goncy or loss happens before the making of the first dividend, in like
scush. ir3J 204. manner as if the same had happened before the first publication of the
i Cush! S"'!*.'"' notice. If the debtor is liable for any debt in consequence of having
3 Cush. m, 194, made or indorsed a bill of exchange or promissory note before said first
rl c'ush. 557. publication, or in consequence of the payment by any jiarty to a bill or
7 Cijsii- 1S3, 594. note of any part of the money secured thereby, or of the payment of
1 Gray, 305. any suui bv a surety of the debtor in any contract, if the payment is
4 Gray,' 2*4.' n'ia<le before the making of the first dividend, such ilebt may be proved
5 Gray, 574. and allowed as if it had been due and payable by tlie debtor before the
uGray, . ^^.^j. publication. All demands against the debtor for or on account of
goods or chattels wrongfully obtained, taken, or withheld, liy him, may
be proved and allowed as debts, to the amount of the lalue thereof.
No debt other than those above mentioned shall be proved or allowed
against the estate.
Set off of debts. Sect. 26. If it appears that there has been mutual credit given by
fi*Met'«7^'^' *'^° debtor and any other person, or mutual debts between them, the
10 Met. 194. account between them shall be stated, and one debt set oif against the
4 Gray,' 2*4.' Other, and the balance shall be allowed or paid on either side.
7 Gray, 425. Sect. 27. When a creditor has a mortgage or [iledge of real or per-
case"f'niort- sonal estate of the debtor, or a lien thereon, for securing the payment
ga^e, pledge, of a debt claimed by liim, the projierty so held as security shall, if he
ismHcs. §3- I'equires it, be sohl, .and the proceeds ap])lied towards the p.ajnnent of
e Met. 305. his debt, and he shall be admitted as a creiUtor for the residue. The
2Cusii. 294. sale shall be made in such manner as the judge orders, and the creditor
4Cush'o9'*' ^^'^ assignee respectively shall execute all deeds and papers necessary
7Cusi).'i8.i or proper for eifecting the conveyance. If the creditor does not require
0 Gray] 523.' such sale and join in eifecting the conveyance, he may release and de-
liver up to the assignee the premises held as security and bo admitted
as a creditor for the whole of his debt. If the ])ro]ierty is not so sold,
or released and delivered uj), the creditor sliall not be allowed to prove
any part of his debt.
Claims to be Sect. 28. No debt shall be proved or .allowed unless the creditor, or
Form of oath. ' if he residos in a foreign country and the debt is founded on a contract
1S.38, 103, §§4, ninde by the debtor with the consignee or agent of the creditor residing
1K48, 304, ? 14. in the United States, such consignee or agent, makes oath in substance
1851, 189, § 1. as follows-
1851, 349, § 1. ^* lOUOWS .
1852, 189, §§1,2. T J ..V .. r u / ■ .^ i. j-
1856, 284, §35. ^' • "" swear that , oi , by (or as.imst) whom proceedings
1858, 93, § 9. in insolvency have been instituted, at and before the d.ite of such proceedings, was, and
still is, justly and truly indebted to me in the sum of , for which sum or any
part thereof I have not. nor has any other person to my use, to my knowledge or be-
lief, received any security or satisfaction whatever, bi-yond what has been disposed of
asrreeably to law. And I do further swear, that said claim was not procured by me
for the purpose of intluencin<^ the proceedings in this case. And I do further swear
that I have not, directly or indirectly, made or entered into any bargain, arrangement,
or agreement, express or implied, to sell, transfer, or dispose of, my claim, or any part
of my claim, against said debtor, nor have, directly or indirectly, received or taken,
or made or entered into any bargain, arrangement, or agreement, express or implied,
to take or receive, directly or indirectly, any money, property, or consideration, M'hat-
soever, to myself, or to any person or persons to my use or benefit, under or with any
under.standing or agreement, express or imnlied, whereby mv vote for assignee, or my
assent to the debtor's discharge, is or shall be in any way affected, influenced, or con-
trolled, or whereby the proceedings in this case are or shall be affected, mfluenccd, or
controlled.
No claim shall l)e allowed unless all the statements set forth in the
oath are true.
Oath may be Sect. 29. If the creditor is ilisnbled liy .".bsence from the state, sick-
matie by attor- uogs, or other cause, fi-om proving his claim, the above oath may be
Chap. 118.] courts of insolvency — assignment and assignee. 585
made by his agent or attorney testifjdng to the best of his knowledge isaa, iso, §§1,2.
and belief; in which case the judge may re<iiiire such further proof of
the truth of the statements therein as he deems expedient.
Sect. 30. The oath may be made before a justice of the peace ; but omi mnj' be
the judge may at any time require the personal appearance in court of {^^^"orK'^
the ])ai'ty making such affidavit, to be further interrogated on oath, pence.
The debtor and any party proving a debt ma}^ be examined on oath in i85l|s«,§y?'
presence of the judge on all matters relating thereto.
Sect. 31. When a claim is presented for proof before the election of Certain claims
the assignee, and the judge entertains doubts of its validity or of tlie po',Jed!' ''°'""
right of the creditor to prove it, and is of opinion that such validity or iwu, aw, §33.
right ought to be investigated by the assignee, he may postpone the
proof of the claim till after the assignee is chosen.
Sect. 32. A person who has since the sixth day of July eighteen claims in cer-
hundred and fifty-six accepted any preference, having reasonable cause Jf,'be''ano«"'d
to believe that the same was made or given by the debtor contrary to i«s n«, § 10.'
any provision of this chapter, shall not prove the debt or claim on ac- ''**''' 2<*i. §32.
count of which the preference was made or given, nor receive any
dividend thereon.
Sect. 33. The judge shall allow all debts duly proved, and shall DoMs proved.
cause a list thereof to be made and certified by the register; and any 1," I'y'atto'mey
creditor may act at all meetings by his duly constituted attorney the iNis,itn,§§2,i5.
same as though personally present.
Sect. 34. A supposed creditor whose claim is wholly or in part re- Appeal from
jected, or an assignee who is dissatisfied with the allowance of a claim, ^i"|'ehi'h,ls'' ' eJI?
may ajipeal fi-om the decision to the sujicrior court; but no appeal shall try of api)eai.
be allowed unless it is claimed and notice thereof given to the register, is.-i!i' niii!
to be entered with the record of the jiroceedings, and also to the ,■'*'';'■ .,'^-
assignee or creditor, as the case may be, Mithin ten days after the de- ijMet'w.
cision appealed fi-om. The apjieal shall be entered at the term of the 4 (-"l^] l^o.
superior court which shall be first held within or for the county next 5 Cunh. 015.
after the expiration of fourteen days from the time of claiming the same. 1 Gray, 5.4.
But if the appellant in writing waives his ai)peal before the entry sGray, iie.
thereof, proceedings may be had in the court of insolvency as if no
appeal had been taken.
Sect. 35. U]ion entering the appeal the creditor shall file in court a Proceeciin^s on
statement in writing of his claim, setting forth the same substantially as i£fg™i'e3 §4.
in a declaration for the same cause of ;iction at law, and the assignee
shall plead or answer thereto in like manner ; and like proceedings shall
be thereupon had in the pleadings, trial, and detennination of the cause,
as in an action at law commenced and prosecuted in the usual manner;
except that no execution shall be awarded against the assignee for the
amount of a debt found due to the creditor.
Sect. 36. The final judgment of the court shall be conclusive; and Judgment on
the lists of debts shall, if nocessar^-, be altered to confonn thereto. The 'iK'™,';-,:,,^™*'
party prevailing in the suit shall be entitled to costs against the adverse " Jitt. ss.
party, to be taxed and recovered as in suits at law ; if recovered against
the assignee they sh.all be allowed out of the estate.
Sect. 37. A bill of exchange, promissory note, or other instramcnt. Evidence of
used as evidence upon the proof of a claim and left in court or depos- wi'ti"(fr,"wu i,y
ited in the office, may be delivered by the register to the person who ),' ■'*,|"" ''"Py
used it, upon his filing a copy thereof attested by the register; the regis- iVo:;, is'j.gs.
ter also indorsing upon it the name' of the party against whose estate
it has been proved, and the date and amount of any dividend declared
thereon.
ASSIGNMENT AXD ASSIGNEE.
Sect. 38. The creditors shall at the first meeting in the presence of '^I'^'^l^^V
the judge choose one or more assignees of the estate of the debtor; the ib38,~i03,'§a.'
74
586
COURTS OF INSOLVENCY — ASSIGNMENT AND ASSIGNEE. [ChaP. 118.
As8i<,^noo,jud*?e
to approve
choice of, &c.
ISoS, H1,§1.
to give bond,
&c.
1844, 1?S, §11.
1S18, XH, § 1-2.
4 Gray, 2h J-2S8.
0 Gray, ;ilH.
See Ch. 101.
failing to give
bond, to be re-
moved.
1S33, 11(5.
judge to as-
Bign property
to.
1838, l(i:!, § o.
to record as-
signment and
give notice.
183S, 103, § 11.
Effect of assign-
ment.
law, KB, §5.
Whut to vest.
2 Met. 25S.
3 Met. 13U, 305,
522.
4 Jlet. 137, 34;;,
537.
5 Met. 49, 5S2.
6 Met. 403, 517.
7 Met. 1(14, 34S,
424. 8 Met. 10.
13 Met. 17.
2 Cusll. 480.
4 Cush. 33, 532.
5 Cusll. 422.
6 Cusll. 30, 87.
7 Cusll. 20:i, 505.
10 Cusll. 02.
3 Gray, 245, 302,
308.
Kights of ac-
tion.
2 Met. SfpO.
3 Met. 522.
Attacliinents,
how preserved.
1841, 124, §5.
185S, lili.
18S7, 247.
4 Met. 470.
13 Met. 200.
2 Cusll. 124.
3 Cush. 318.
4 Gray, 120, 420.
eGray, 112,523.
choice to be made by the !;i-e.atcr p.irt in vabie of tlie crerlitors who have
proved their debts : jvuvided, th;it wlieii the number of creditors present
amounts to five and k^ss tlian ten, the votes of two at least, and wlien
the number of creditors amounts to ten or more, the votes of tliree at
least, shall be necessary for a choice. If no choice is made by the
creditors at said meeting, the judge shall appoint one or more as-
signees. If an assignee so chosen or apjiointed fails, within four days,
to express in writing his acceptance of the trust, the judge may fill the
vacancy.
Sect. .39. All elections of assignee shall be subject to the approval
of the judge; and when in his judgment it is for any cause needful or
expedient he may appoint additional assignees or order a new election.
Sect. 40. The judge at any time may, and upon the request filed in
writing of any creditor who has proved his claim shall, require the
assignee to give good and sufficient bond to the judge and his succes-
sors in office, with a condition for the faithful perfonuance and discharge
of his duties. The bond shall be approved by the judge by his indorse-
ment thereon, shall be filed with the record of the case, and inure to
the benefit of all creditors proving their claims, and may be prosecuted
in the manner provided for the ])rosecution of administration bonds.
Sect. 41. If the assignee fails to give the bond within such time ns
the judge orders, not exceeding ten days after notice to him of such
order, the judge shall remove him and appoint another in his place.
Sect. 42. The judge shall, by an instrument uniler his hand, assign
.and convey to the assignee all the estate real and personal of the
debtor, except such as is by law exempt from attachment, with all his
deeds, books, and jiapers relating thereto.
Sect. 43. The assignee shall forthwith cause the assignment to be
recorded in the registry of deeds in each district or county in which
there may be real estate of the debtor on which it may operate ; and
shall give such public notice of his ajipointment as the judge shaU
order.
Sect. 44. The assignment shall vest in the assignee all the ]iro]ierty
of the debtor real and jiersonal which he could have lawfully sold,
assigned, or conveyed, or which might have been taken on execution
iqion a judgment against hiin, at the time of the first publication of the
notice of issuing the warrant, although the same is then attached on
mesne process as the jn'ojierty of the debtor; and shall be efi'ectual to
pass all said estate, and, subject to the jirovisions of the following sec-
tion, to dissolve any such attachment. The assignment shall vest in the
assignee all debts due to the debtor or any person for liis use, and all
liens and securities therefor, and all his rights of action for goods or
estate real or personal, and all his rights of redeeming such goods or
est.ate. The assignee may redeem all mortgages, conditional contracts,
])ledges, and liens, of or u])on any goods or estate of the debtor, or sell
the same subject to such mortgage or other incumbrance.
f. Met. 537.
2 Cush. 404.
S Cush. 442.
OCush. 114,362.
(i (irny, 243.
Dissolution of attach- 8 Met. 200, 403. 2 Cush. 124.
ment. 7 Met. 318. 3 Cush. 30ii, 318.
Time of vesting.
Met. 25S.
8 Met. 29.
9 Met. 23.
13 Met. 200,
535.
4 Cnsh. 357, 393, 4 Jlet. 340.
441.
10 Cush. 317.
3 Gray, 245.
6 Met. 537.
7 Met. 318.
1 Cush. 300.
21 Pick. 109.
22 Pick. 4.50.
3 Met. 251,410.
7 Gray, 242,5.39. 4 Met. 29.S, 470,481, .504.
Sect. 45. If a debtor whose property is attached, conveys before
judgment and execution in the suit any part of such property, and sub-
sequently thereto and before execution issues, proceedings are com-
menced by or against him as an insolvent debtor, or if a dissolution oi
an attachment under the jireceding section might prevent the projierty
attached from passing to the assignee, the judge before whom jnoceed-
ings in insolvency are jiending, or the court to which the process o)
attachment is returnalile, may upon ap]5lication made on or before the
day of the third meeting of creditors by any person interested, and
Chap. 118.] courts op insolvenxy — assign.ment and assignee. 587
cause shown thereon, order the lien created by the attachment to cou-
tinue. The action may be continued or execution stayed until the assignee
is chosen and takes charge of the action. The assignee may proceed
with the action and levy the execution at the cost and expense of the
estate ; and the amount recovered exclusive of costs due to the original
plaintifl' shall vest in the assignee.
Sect. 46. The assignee shall demand and receive from the messen- Assignee to dc-
ger and all other persons, all the estate in his or their possession assigned "rtliVp^'ii'i'/kcen
or intended to be assigned under the jirovisions of this chapter ; and he aiTounts.
shall sell all such estate, real and personal, which comes to his hands, on lo ciisb.'irs!"
such terms as he thinks most for the interest of the creditors; but upon
petition of any person interested and for cause shown, the court may
make such order concerning the time, place, or manner of sale, as will
in its opinion promote the interests of the creditors ; and the assignee
shall keep a regular account of all money received by him as assignee,
to which every creditor shall at reasonable times have free resort.
Sect. 47. He shall have the like remedy to recover all said estate, to commence
debts, and effects, in his own name, as the debtor might have had if no snits'wh'icii*"^
assignment bad been made. If at the time of the assignment an action shall not iiiwte
is pending in the name of the debtor for the recovery of a debt or other is:is Kti'lss.'
thing which might or ought to pass to the assignee by the assignment, I HH jjljlj-
the assignee shall, if he requires it, be admitted to prosecute the action 4 jiet. .wi!
in his own name, in like manner and with like effect as il' it had been aCusil! 442!
orisjinallv commenced bv him. No suit i)endinu- in the name of the i' cusii. .•ifl2.
assignee shall be abated by his death or removal; but upon the motion 3(iiiiy|L4i,'38a.
of the surviving, remaining, or new assignee, as the case may be, he ■* ^''"^'' '**•
shall be admitted to prosecute the suit in like manner and with like
effect as if it had been originally commenced by him. In suits prose-
cuted by the assignee, the assignment made by the judge shall be con-
clusive evidence of his authority to sue.
Sect. 48. Drafts, bills of exchange, promissory notes, claims, demands, certain drafts,
and causes of action, which subsequently to the sixth day of July in the not'trbeolrset
year eighteen hundred and fifty-six, and within six months beibro the *c.
filing of the petition by or against a debtor, are assigned, transferred, ' '
conveyed, or delivered, to any person indehti'd or liable to the debtor,
shall not be ofiset or pleadalile in defence in any suit by the assignee to
I'ecover such debt or liability; but the assignee may recover the same
notwithstanding such draft, bill of exchange, promissory note, claim,
demand, or cause of action : proL'idfd, that the person to whom the same
are so assigned, transferred, conveyed, or delivered, had at the time of
such assignment, transfer, conveyance, or delivery, reasonable cause to
believe the debtor insolvent.
Sect. 49. The assignee shall as soon as may be after receiving any Money and
money belonging to the estate, deposit the same in some bank, in Kortobe
his name as assignee, or otherwise keep it distinct and a])art from all kept separate
other money in his possession ; and shall as far as practicable keep all i.^wf nS'.Tn.
goods and effects belonging to the estate separate and apart from all ^'•^'^ Cb. 57, § 63.
other goods in his possession, or designated by appropriate marks ; so
that they may be easily and clearly distinguished, and may not be
exposed or liable to be taken as his property or for the payment of his
debts.
Sect. 50. When it appears that the distribution of the estate may court may
be delayed by litigation or other cause, the court may direct the tern- r;',ry','n\!'est'ment
porary investment of the money belonging to such estate in securities ofVwben, &c.
to be ajiproved by the judge; or may authorize the same to be de- i'^"' "^' § i-
posited in any bank in this state upon such interest, not exceeding
the legal rate, as the bank may contract with the assignee to pay
thereon.
Sect. 51. He shall give written notice to all knowTi creditors by Assignee to
588
COURTS OF INSOLVENCY — ASSIGNMENT AND ASSIGNEE. [ChAP. 118.
^ve notice of
nu^otings.
lS4(i, 10.S, § 4.
1S50, 319.
Assi;^ee, com-
pensation of.
1S38, 103, § 11.
may submit
controversies
to .arbitration.
l.s:iS, l(i3, § n.
11 Gush. 5S^.
may sell per-
ishable iiropcr-
ty peudini,^ dis-
pute of title.
Property recov-
ererl by action,
&c.
1858,73, §§ 1,'J.
to certify
and render ac-
counts, when,
&c.
1814, l-.S, § 7.
10 Cush. 173.
removal of,
by creditors.
1838, 1153, § 11.
1859, 69.
by judge upon
complaint.
1848, 3W, § 12.
when out of
state, and refus-
ing to obey, &c.,
or any cause.
1851, 349, §2.
1858, 141, § 1.
may resi^.
1858, HI, §3.
vacancies in
office of, may Ije
filled by ap-
pointment or
election.
mnil or otlierwise of all diviilonds; and sucli notice of meetings after
tlie tir.st as the judge shall order.
Sect. 5'2. He shall be allowed, and may retain out of the money in
his liands, all the necessary disbursements made by him in the discharge
of his duty, and a reasonable compensation for his services, in the dis-
cretion of the judge.
Sect. 53. He may, under the direction of the judge, submit any
controversy arising in the settlement of demands against the estate, or
of debts due to it, to the determination of arbitrators, to be chosen by
him and the other party to the controversy ; and may under such di-
rection compound and settle any such controversy by agreement with
the other party as he thinks proper and most for the interest of the
creditors.
Sect. 54. When it a])pears to the satisfaction of the judge that the
title to any portion of an estate which has come into possession of the
assignee is in dispute, and that the property is of a perishable nature,
or liable to deteriorate in value, he may on the petition of the assignee,
and after such notice to the claimant, liis agent, or attorney, as the
judge deems reasonable, order it to be sold under the direction of the
assignee, Avho shall hold the funds received, in place of the estate dis-
posed of; and the proceeds of the sale shall be considered the measure
of the value of the pro]ierty in any suit or controversy between the
parties. But this provision shall not prevent the recovery of the prop-
erty from the possession of the assignee by action of replevin com-
menced at any time before the judge orders the sale.
Sect. 55. When an assignee has received from the estate assets suf-
ficient to pay fifty per cent, of the debts and claims proved against it,
he shall certify the fact and render his accounts therefor to the judge ;
and when he has received twenty-five per cent, more from the assets,
he shall in like manner certify ami render his accounts therefor. He
shall also certify and render his accounts .at any time when required by
the judge.
Sect. 56. At a meeting called by order of the judge in his discretion
for the purpose, an<l which shall be called upon the application of a
majority of the creditors either in number or value, the creditors may
with the consent of the judge remove any assignee by such a vote as is
provided in .section thirty-eight for the choice of assignees.
Sect. 57. The judge after due notice and hearing may remove an
assignee if it appears to him upon the complaint of any person interested
in the estate that the assignee has fraudulently received, concealed, em-
bezzled, or convcj'ed away, any of the money, goods, eUl'cts, or other
estate, of the debtor, or lias been interested in any suit at law in relation
to saiil estate for the purjjose of securing to himself a preference or
priorit}' over the other creditors, or has in his ])ossession or control any
portion of the estate with intent to appropriate the same unlawfully' to
his own use, or has been guilty of any fraudulent act in relation to the
same.
Sect. 58. He may also remove an assignee who having removed from
the state unreasonably refuses or neglects to obey any lawful onler for
calling meetings of the creditors, to settle his accounts, or otherwise
unreasonably refuses or neglects to discharge his duties; and for any
other cause which in his judgment renders such removal necessary or
expedient.
Sect. 59. An assignee may with the consent of the judge resign his
trust and be discharged therefrom.
Sect. 60. Vacancies caused by death or otherwise in the office of
assignee may be filled by apjjointment of the judge, or at his discretion
by an election of the creditors in the manner prescribed in section thirty-
eight at a regular meeting, or at a meeting called for the purpose, with
Chap. 118.] courts of ixsolyency — examination, &c., op debtor. 5S9
such notice thereof in writing to all known creditors, and by such per- ]8.'is,ira,§§2, ii.
son, as the judge sliall direct. '*^'*' '■"• *S-' ^■
Sect. 61. The resignation or removal of an assignee shall in no way AssinTicc, effect
release him from pertbiming all things requisite on his jjart for the ^i ''"^jgnation,
proper closing u]) of his trust and the transmission thereof to his sue- isos, i4i, §3.
cessors ; nor aflect the liability of the principal or surety on the bond
given by the assignee.
Sect. 62. When by de.ath or otherwise the number of assignees is vesting of es-
reduced, the estate of the debtor nut lawfiilly disposed of shall vest in &,!!;"'r"'™*'''
the remaiuinsj assignee or assignees, and the persons selected to fill i^'i-*, hb, § 11.
vacancies, with the same powers and duties relative thereto as if they li^ii^iswj §2r
were originally chosen.
Sect. 63. Any former assignee, his executors, or administrators, upon former to exe-
request, and at the expense of the estate, shall make and execute to the j.'.'i.'iTo rats'
new assignee all deeds, conveyances, and assurances, and do all other onins for fuim-
lawful acts, requisite to enable him to recover and receive all the estate ; &™of.' '^""°^'
and the judge may pass all orders which he deems expedient to secure }S^' JJi*' f .''•
the proper fulfilment of the duties of any former assignee, and the rights issn', nij §4.
and interests of all persons interested in the estate.
Sect. 64. No ]ierson who has received any preference contrary to preferred
the provisions of the laws relatinsr to insolvencv, shall vote for or be "^'"'itors not to
eligible as assignee, but no title to property', real or personal, sold, trans- imii-ihiiity
ferred, or conveyed, by an assignee, shall be aifected or impaired by ii'tiVs" '^^'"^^
reason of his ineligibility. isao, 284, § 34.
Sect. 65. An assignee refusing or unreasonably neglecting to execute penalty on,
an instrument when lawfully required by the judge, or disobeying a law- i(^s"iij'^ s'ja**'"
ful order or decree of the judge in the jireinises, may be coiiuiiitted to
and detained in the jail of the county where he is found, or in which he
dwelt when he w.as appointed, until he obeys such order or <leci-ee, or is
released by the supreme judicial court or some justice thereof on a writ
o{ habeas corpus.
EXAMIXATIOX, &C., OP DEBTOR.
Sect. 66. The debtor shaU at all times before the granting of his Debtor to sub-
certificate, upon reasonable notice, attend and submit to an examination "iou*" ''^'""^''-
on oath before the judge and the assignee upon all matters relating to ims, 103, §0.
the disposal of his estate; to his trade and dealings with others, and his a)iet!2U2!
accounts concerning the same; to all debts due or claimed from him ; ^ Gray, us, 250.
and to all other matters concerning his estate, and the due settlement
thereof according to law ; which examination shall be in writing when
so required by the judge, shall be signed by the debtor and filed with
the other proceedings.
Sect. 67. If the debtor is in jail in any suit or jirocoeding for or on examination
account of any debt or demand that is ])rovable against his estate, at any prison™"'
time before the granting of his certificate and when his attendance is isas, ig3, §9.
required before the court or the assignee, or at any meeting of his cred-
itors, the judge may, in his discretion, by warrant under his hand require
the jailer to produce the debtor for the jiurposes aforesaid, at a time and
place to be specified in the warrant.
Sect. 68. If the debtor by reason of imprisonment, sickness, or any when sick or
Other cause deemed sufficient by the judge, is unalde to attend before tc'uli'.''' *'"''
the judge, or the assignee, or at any meeting of his creditors, the judge, i838, 163, §9.
or some person deputed by him for that puri)ose, and the assignee, or
some person ap]winted by him, shall attend the debtor, in jail or else-
where, if he is within this state, in order to take his examination; and
the examination thus taken shall be of the same force and effect as if
the debtor had attended in person before the judge or assignee, or at the
meetings aforesaid, and had there undergone the same examination.
Sect. 69. If the debtor is without this state and unable to return when out of
50
590 COURTS OF INSOLVENCY — SECOND AND THIRD MEETINGS, &c. [ChaP. 118.
state vcithout
wilful default.
183S, 103, § 9.
Debtor to do
acts necessary
to confirm the
assignment,
and enable as-
signee to re-
cover, &c.
ISK, 163, § 5.
3 5Iet. 251.
proceedings
against, for re-
fasino^ to exe-
cute instru-
ments or obey
decrees of
judge, &c.
1838, 163, §23.
2 Met. 5?3.
and give his personal attendance at any of the times and for the pur-
poses specified in this chapter, and if it appears that such absence was
not caused by his wilful default, and as soon as may be after the re-
moval of sueli impediment he oflers to attend and submit to an exami-
nation on oath before the judge and the assignee as herein provided, and
to do and perform all things required by this chapter for the purjiose of
obtaining liis certificate, he shall be entitled tliereto in like manner as
if he had done the same things at the times respectively herein j)re-
scribed.
Sect. 70. The debtor shall, at the expense of the estate, make and
execute such deeds and writings, and indorse such bills, notes, and other
negotiable papers, draw such checks and onlcrs for moneys deposited in
banks or elsewhere, and do all such other lawful acts and things, as the
assignee at any time reasonably requires, and which may be necessary
or useful for confirming the assignment, and enabling the assignee to
demand, recover, and receive, all the estate and effects so assigned,
especially any part thereof which is without this state.
Sect. 71. If the debtor refuses or unreasonably neglects to execute
an instrument when lawfully required pursuant to an order of the judge,
or disobeys any lawful order or decree, the judge shall issue his warrant
to any civil officer, commanding him to arrest and commit the debtor
to the jail in the county where he may be found, or where he dwelt at
the time of his insolvency; and he shall remain in close custody until
he obeys such order or decree, unless he is released by the supreme
judicial court or some justice thereof on a writ of habeas corpus.
Judge to ap-
point second
meeting.
Debtor may
amend schedule
of creditors.
Wis, in3, § 7.
ISo'-l, 329, § 3.
3 Met. 213.
7 Met. 420, 431.
11 Cush. 104,
311, 44r.
Form of oath.
See§»4.
Upon failure to
call or hold
meetiug, court
may order.
18J4, 329, § 1.
If meeting lia-
ble to be defeat-
ed, register may
CiiU on order of
judge.
1854, 329, § 2.
Third meeting.
Certificate of
discharge.
SECOND AND THIED MEETINGS OATH AND DISCHARGE.
Sect. 72. The judge shall appoint a second meeting of the creditors,
to be held at a court not more than three months after the date of the
warrant, regard being had to the distance at which the creditors reside.
The debtor shall then be allowed to amend and correct his schedule of
creditors, and shall take and subscribe an oath before the judge, which
shall be certified by him and filed in the case, in substance as follows: — ■
" I do swear that the account of ray creditors containei in the schedule made
and signed by me and now on file in court is in all respects just and true, according
to my best knowledge and belief. And I do further swear, that I have delivered to
, the messenger, all my estate, (excepting such parts thereof as are by law ex-
empted from attachment, and such as have been necessarily expended for the support
of myself and my family,) and all my books of account and papers relating to my said
estate, that were within my possession or power when the same were demanded .of me
by the messenger ; that I have delivered to my assignee all such of ray said estate,
books, and papers, as have since corae to my possession ; and that if any other estate,
effects, or other things, which shall or ought to be assigned and delivered to the as-
signee, shall hereafter come to my knowledge or possession, I will forthwith disclose
or deliver the same to him. And I do further swear, that there is not any part of my
estate or effects made over or disposed of in any manner for the future benefit of my-
self or my family, or in order to defraud my creditors."
Sect. 73. When a failure to call or hold a second or third meeting
within the time prescribed occurs, the court may, upon the petition of
an interested party, order such meeting with like effect as to the validity
of the proceedings as if the meeting had been duly held.
Sect. 74. U])on the death, resignation, or neglect, of the assignee,
or his absence from the county, whereby a meeting to be notified by
him is liaVile to be defeated, such meeting may be notified by the regis-
ter on the order of the judge, on petition of any interested party, with
notice at the discretion of the judge to the assignee if living, and with
the like effect as if the meeting liad been called and notified by the
assignee.
Sect. 7-5. The judge shall ap]ioint a third meeting of the creditors
to be held within six "months from tlie time of the appointment of the
Chap. 118.] courts of insolvency — discharge of debtor. 591
assignee ; at which meeting or some meeting thereafter, if it apjjears mis, ig3, §§ 7,
to the satisfaction of the judge that the debtor has made a full disclosure jji^^ 178, §3.
and delivery of all his estate as herein required, and that he has in all {"(-ii'^^J^;,!*-
things conformed himself to the directions and requirements of the laws 4 rush.' .529.
relating to insolvent debtors, the judge shall grant him a certificate, J/cugf,'';!^
which shall state all fiduciary debts specially exempt from discharge, and
be in substance as follows : —
Commonwealth or Massachusetts.
as. Court of Insolvency.
To all people to whom these presents shall come, I, A. B., judge of the court of Form of wr-
insolvency for said county of , send greeting. "/""Je '
Whereas, it has been made to appear to me, that C. D., of B., in the said county of
, merchant, whose estate has been assigned for the benefit of his creditors,
according to law, has made a full disclosure and delivery of all his estate, and that he
has in all things conformed himself to the requirements of law in that behalf made
and provided : I do accordingly certify that said C'. D. is absolutely and wholly dis-
charged from all his debts which have been or shall be proved against his estate as-
signed as aforesaid, and from all debts which are provable against his estate, and which
are founded on any contract made by him within this state or to be performed within
the same, and made since the last day of July in the year eighteen hundred and thirty-
eight, and fi'om all debts which are provable as aforesaid, and which are founded on
any contract made by him since that date, and due to any persons who were resident
within this commonwealth on the day of last, being the day of the first
publication of the notice of the warrant issued for the seizure of the estate of said C. D. ;
and from all demands agamst him for or on account of any goods or chattels wrong-
fully obtained, taken, or withheld, by him, according to the pro^•isions of chapter one
himdred and eighteen of the General Statutes. And I do further certify that said C. U.
is by force of said chapter forever discharged and exempted fiom arrest or imprison-
ment in any suit, or upon any proceeding, for or on account of any debt or demand
whatever which might have been proved against his estate assigned as aforesaid.
Given under my hand and the seal of said court this day of , in the
year
Sect. 76. The debtor shall thereupon, except as provided in section Effect of dis-
seventy-nine, be absolutely and wholly discharged from debts proved i^;',''f[i;3_57_
against his estate; and from all delits provable under this chapter, and ish', irs', §3.
founded on any contract made by him subsequently to the last day of 2^'piok. '1I2!'
July in the year eighteen hundred and thirty-eight and while an inhab- ^ Met. 213.
itant of this state, if made within this state, to be performed within the 0 Mot! 2w!
same, or due to any person resident therein at the time of the first ])ub- 3i'''32i',«o!'"^'
licatign of the notice of the issuing of the warrant; and from all de- 424;-i:-.u "_'
mands for or on account of any goods or chattels wrongfully obtained, lol'.'iia."' ' '
taken, or withheld, by liim, as mentioned in section twenty-five, while ^^^'i^Jf: ^•''^' ^^-'
such inhabitant. 12 Met.'470.
5 Cush. &3, 8f>, 8 Cash. 375. 3 Gray, 252,551. 12 Met. 470. 10 Cash. 623. Pr'JffMIn
484. 10 Cush. 43, Sa?. 5 Gray, 51, 310. 1 Cush. 430. 2 Gray, 43. 5 r^= V ,-q' qt,
6Cu8h.225. 1 Gray, 305, 023. Contracts out of 5 Cush. 83. 3 Gray, 551. -1 r„c , 4ai
7 Cush. 15, 242, 2 Gray, 43, 111, state. 7 Cush. 16, 242, 5 Gray, 487, 5.39, i r"'!!' ^X,
455, 5U2. 148. 10 Met. 594, 597. 455. 552. 1 Uusn. W/.
Sect. 77. If the debtor at the time of obtaining his certificate is in Debtor impris-
jail on any suit or proceeding for or on account of any claim provable Ji'Jse]',',*,'e;i*on'"^
against his estate, he shall be discharged from such imprisonment u]ion ccrtincate.
producing to the jailer his certificate granted pursuant to the provisions '*' ' ^
of this chapter.
Sect. 78. The debtor shall also be forever thereafter discharged and discharged
exemi>t from arrest or imprisonment in any suit or u]ion an)- proceed- 2^J."",i"'i|;'j^',^p.
ing for or on account of any debt or deinau<l which might have been orty exempt
proved against his estate. And the property and estate of the debtor nK-nn^&c."
by him acquired subsequently to the time of the fir.st publication of the ;«*•, ira, §7.
notice of the issuing of the wairant, shall not be subject to attachment, r M(.t.'i57.
by trustee process or otherwise, in any suit to recover a debt which ^ Met. 102.
may have been so provable and due to any person or ])ersons not resi-
dent in this state at the time of such first ])ul)lication, or founded on
any contract existing at the time of said first publication and made or
to be performed out of the limits of this state.
592
COURTS OP INSOLVENCY — DISCHARGE OF DEBTOR. [ChaP. 118.
Debts from de-
falcation aii'I
for necessi.ries
not discharged.
ia38, 163, §r.
1844, 178, § :i.
1848, 304, § 10.
10 Cush. 4.1.
See Ch. 90, § 29.
Sureties, &c.,
1838, 103, § 7.
5 Cush. 014.
1 Gray, 023.
Discharge by
assent of cred-
itors.
1848, .304, § 9.
8 Cush. 109.
10 Cush. 43.
1 Grav, 023.
2 Gray, .519.
3 Gray, 254.
upon second
and third insol-
vency.
1841, 178, §§ 5, 0.
1830, 257.
5 Cush. 83.
8 Cush. 104.
13 Gray, 203.
Creditors may
assent whose
claims are ap-
pealed, &c.
1852, 293.
3 Gray, 233.
Debtor failing
by accident,
&c., to take
oath, may be
discharged.
1868, 121.
Appeal from
decision of
judg^e on ques-
tion of dis-
charge.
18:W, l(i3, §8.
1S4S, .304, § 11.
1839, 196.
Proceeding's on
appeal.
18.38, 163, § 8.
1839, 196.
Sect. 79. A debt created subsequently to the fifteentli day of April
in tlie year eighteen hundred aud forty-four by the debtor's defalcation
as a ])ublic officer, executor, administrator, guardian, receiver, trustee,
or assignee of an insolvent estate, shall not be discharged under this
chapter, but the dividend declared thereon shall be payment of so much,
of said debt. A claim for necessaries furnished to the debtor or his
family shall not be so discharged unless the claim is proved against his
estate.
Sect. 80. A discharge shall not release or discharge any person
liable for the same debt as a partner, joint contractor, indorser, surety,
or otherwise, for or with the debtor.
Sect. 81. A discharge .shall not be granted to a debtor whose assets
do not pay fifty per cent, of the claims proved against his estate, unless
the assent in writing of a majority in number and value of his creditors
who have proved their claims is filed in the case within si.Y months after
the date of the assignment.
Sect. 82. A discharge shall not be gi-anted to a debtor a second
time insolvent whose as.sets do not pay fifty per cent, of the claims
proved against his estate, unless the assent in writing of three-fourths in
value of his creditors who have jiroved their claims is tiled in the case
within six months after the date of the assignment. No discharge shall
be granted to a debtor a third time insolvent. But a debtor who has
paid all the debts owing by him at the time of his previous insolvency,
or who has been voluntarily released therefi'om by his creditors, shall be
entitled to a discharge in the same manner and with the same effect as
if he had not been ])reviously insolvent.
Sect. 83. A creditor may assent to the debtor's discharge under the
two preceding sections, notwithstanding an appeal from the allowance
of his claim is pending, and such assent shall be vaUd if the claim is
finally allowed.
Sect. 84. When a discharge is refiised a debtor for the sole reason
that the assent of the requisite majority of his creditors has not been
seasonably obtained or filed, or for the reason that he has not taken
the oath required by section seventy-two, the judge, upon the a])j>lica-
tion of the debtor made within twelve months after the date of the
assignment and with the written assent of three-fourths in number and
value of the creditors who have proved their claims, may grant his dis-
charge if he satisfies the judge on a hearing had after public notice of
said application that the failure to obtain or file the assent was occa-
sioned by accident or mistake, and by no fault of his own ; or that the
omission to take the oath, was owing to his inability by reason of sick-
ness to attend and take the same ; and if he is present and takes the
oath and abides and performs all lawful orders of the court.
Sect. 85. Either the debtor or the assignee may within ten days
after the decision of the judge upon the question of granting the cer-
tificate of discharge, and not after, iqion giving notice to the register to
be entered with the record of proceedings, appeal from such decision to
the terra of the superior court which shall be first held within and for
the county next after the expiration of fourteen days from the time of
claiming the appeal. But if the a])])ellant in writing waives his a]i]ieal
before the entry thereof in the superior court, proceedings may be had
in the court of insolvency, as if no apjieal had been taken.
Sect. 86. The appeal may be heard aud determined by the superior
court or any justice thereof ; and the assignee or any creditor may ap-
pear and object to the allowance of the certificate. If after a full Iieai-
ins of the ])arties it apjiears to the satisfaction of the court that the
debtor has made a full disclosure and deliveiy of ail his est.ite as herein
required, and that he has in all things conformed himself to the directions
of this chapter, ihe court shall cause a certificate thereof in substance
Chap. 118.] courts of insolvency — matters avoiding discharge. 593
like tli:rt prescribeil in section seventy-five, to be made under the seal of
the coiu-t, signed by the clerk, and delivered to the debtor.
MATTERS AVOIDING DISCHARGE.
Sect. 87. A discharge shall not be granted, or valid, if the debtor Discharg-c for-
has wilfully sworn falsely as to any material fact in the course of the c^edin.'riS"^"
proceedings, or if he has fraudulently concealed any part of liis estate, fraud Sf cred-
or effects, or any books or writings relating thereto; or if, being insol- is:3s, iia, §§ lo.
vent and bavins reasonable and sufficient cause to believe himself so, !?!',' !:Mo'
he has, withni one year next betore the hung ot a petition by or against is4s, 3<m, § 9.
him, paid or secured, either directly or indirectly, in whole or in part, l^^'^sff'^^''
any boiTowed money, or preexisting debt, or any liability of liis or ■] Jii't- 2i3.
for him ; or if, within six months before the filing the petition by or 420.^ ' ' '
against him, he has procured his lands, goods, money, or chattels to !> euli,^4K)**''
be attached, sequestered, or seized on execution; or if, subsequently to 7 Cush." lai,' 14«.
the sixth day of July eighteen hundred and fifty-six, he has destroyed, i^^'^sh. 103, 377,
altered, mutilated, or falsified any of his books, documents, papers, i" Cusii. 545.
writings, or securities, or has made or been ju'ivy to the making of any 'who'may con-
false or fraudulent entrv in anv book of account or other document *S^l- . ..^,
with intent to defraud his creditors; or has removed himself, or re- i.i Mtt. te!
moved or caused to be removed any part of his property, from the state, « Gray,' 327"
•with intent to defraud his creditors; or lias made any fraudulent pay- Seejuo.
ment, gift, transfer, conveyance, or assignment of any i)art of liis prop-
erty, or spent any part thereof in gaming ; or if, iiaving knowledge
that any ])erson has proved a false debt against his estate, lie has not
disclosed the same to his assignee within one montli after such knowl-
edge ; or it^ being a merchant or tradesman, he has not subsequently
to said date kept proper books of account. And the discharge shall
be null and void, if the debtor, or any ])erson in his belialf, shall have
procured the assent of any creditor thereto by anj' pecuniary consid-
eration.
Sect. 88. If any person, in contemplation of becoming insolvent Fraudnient pre-
and of obtaining a ilisoharge in insolvency, makes any ]>ayment, pledge, Jiis'Xi'it'"* "'' *
assignment, transfer, or conveyance of any part of his property, directly J^-is, ';;'!> §^u-
or indirectly, absolutely or conditionally, for the pur])ose of preferring ikjCs iisi^ lai.
any creditor or person having a claim against him, or wlio is or may be sMet-U'-SjO?,
under any liability for lam, or for the purpose of jireventing the prop- 7 cnsh. !«.
erty from coming to the hands of his assignee in insolvency, or of being ^'^'^Sao.
distributed under the laws relating to insolvency in satisfaction of his
debts, except as provided in section ninety, he sliall not be entitled
to a discharge, and any discharge received by him shall be void and of
no effect.
PEEFEKEXCES.
Sect. 89. If any person, being insolvent or in contemplation of insol- Franduicnt
vency, within six months before the filing of the jietition by or against 5tc.^™'^" 8\oi ,
him, with a view to give a preference to any creditor or person having jjS?' J.u'fj""
a claim against hiin, or who is under any liability for him, procures any issn! 2S4' §§ 25,
part of his property to be attached, seqiiestered,'or seized on execution, 4 j[7t.' f^'' ^'''''
or makes any payment, pledge, assignment, transfer, or convej'ance of 5 Met. 49.
any part of Iiis property, either directly or indirectly, absolutely or g '{Jif ; 'tl^'i; ^f";
conditionally, tlie person receiving such payment, pledge, assignment, », '''■'■ -'-''-li^y''-
transfer, or conveyance, or to be benefited therein", having reasonable iVusii. 170.
cause to believe such person is insolvent or in contemplation of insol- ^^i'"*''- IT^'*^-
,,,' .11 . ' .3 Ciisli. Ili9.
vency, and that such payment, pledge, assignment, or conveyance is 7 Cush. isi;, isi.
made in fraud of the laws relating "to insolvency, the same shall be s^GrV.y'oftl'ggo.
void; and the assignees mav recover the propertv, or the value of it, 4 Gray, 101.
J? .1 ■ • -i ill 'i?.. 1 ' fi Gray, 100, .324.
from the person so receiving it or so to be benented. See §96.
50* 75
594
COURTS OF INSOLVENCY -
[Chap. 118.
Preceding; sec-
tions not to ap-
ply to necessa-
ries.
isofj, aw, § 23.
See Ch.«0,§29.
Sales, ic, to
prevent prop-
erty from com-
ing to a8sig:nee,
&c., void.
18511, 2S4, ? 37.
8Met.ry>fir,377.
7 Cush. HIS.
13 Gray, 18.
Sect. 90. The provisions of the throe preceding sections shall not
ajijily to any payment of money, or transfer of property in payment,
not exceeding twenty-five dollars in amount, upon a debt contracted
for necessaries furnished to the debtor or his family.
Sect. 91. If any person, being insolvent or in contemplation of
insolvency, within six months before the filing of the petition by or
against him, makes any sale, assignment, transfer, or other conveyance
of any description, of any ]iart of his property, to any person who then
has reasonable cause to believe such person insolvent or in contemjjla-
tion of insolvency, and that such sale, assignment, transfer, or other
conveyance is made with a view to prevent the property from coming
to his assignee in insolvency, or to prevent the same fi-om being dis-
tributed under the laws relating to insolvency, or to defeat the object
of, or in any way impair, hinder, impede, or delay the operation and
effect of, or to evade, any of said provisions, the sale, assignment, trans-
fer, or conveyance shall be void, and the assignee may recover the
property or the value thereof as assets of the insolvency. And if such
sale, assignment, transfer, or conveyance is not made in the usual and
ordinary course of business of the debtor, that fact shall he jvima facie
evidence of such cause of belief.
Allowance to
debtor.
1N.1S, 1113, §§I3, 8.
8 (Juhh. lOU.
See §111.
in case of
death.
183s, 163, § 5.
Surplus to be
returned to
debtor.
IKIS, 1(13, § 13.
6 Met. 203.
ALLOWANCE AND SURPLUS.
Sect. 92. The debtor shall receive from the assignee one dollar a
day for his attendance on the judge or the assignee when required
under section sixty-six. He shall also be allowed out of his estate, for
the necessary sup))ort of himself and his family, such sum, not exceed-
ing the rate of three dollars pei- week for each member of his lamily,
and for such time, not exceeding two months, as the judge may oi-der.
And every debtor who is discharged shall be allowed five per cent, on
the net produce of all his estate received by the assignee, if such net
produce, after such allowance, is sufficient to pay the creditors entitled
to a dividend the amount of fifty per cent, on their debts ; but the
allowance shall not exceed in the whole the sum of five hundred
dollars.
Sect. 93. If an allowance to the debtor on the net produce of his
estate becomes due and is not paid to him in his lifetime, it shall be paid to
his executors or administrators, and disposed of and distributed in like
manner as any other property of which he may be possessed at the time
of his decease.
Sect. 94. If after the payment of all debts proved any surplus
remains in the hands of the assignee, it shall be paid or re-convoyed to,
or re-vest in, the debtor or his legal representatives.
Assignee to ex-
hibit accounts
on oath if re-
quired.
.Jud^e to order
dividend.
1838, 1(13, § 12.
10 CuBh. 1?3,
198.
Preferred
claims.
1M8, 1(13, §§ 12,
24.
IWI, 124, §f).
lain, 218.
isas, nil, §§1,2.
11 Met. 234.
2 Cush. 173, 371.
ACCOUNTS AND DIVIDENDS.
Sect. 95. At the third meeting the assignee shall exhibit to the
judge and creditors present, fair and just accounts of all his recei))ts and
"payments touching the estate, and shall, if required by the judge, be
examined on oath as to the truth of such accounts. The judge sliall
thereupon order a dividend of the estate and effects, or of such part
thereof as he deems fit, among such of the creditors as have proved their
claims, in proportion to their respective debts.
Sect. 96. In the order for a dividend under the preceding section
the following claims shall be entitled to priority or preference, and to
be first paid in full in their order :
First. All debts due to the United States, and all debts due to and
taxes assessed by this state:
Second. Wages due to any operative to an .amount not exceeding
Chap. 118.] courts of insolvency — accounts and dividends. 595
iifty dollars for labor perfoiined within one year next preceding the first 3 Cush. 3«.
publication of the notice of insolvency, or for labor for the recovery of
payment for which a suit commenced within one year after the perfonn-
ance thereof is pending, or has terminated within one year from said
first publication :
Third. All debts due to physicians for medical attendance on the
debtor or his family, rendered within six months jjrior to the institu-
tion of proceedings in insolvency, to an amount not exceeding fifty
dollars :
Fourth. All debts due to any persons who by the laws of the
United States, or of this state, are or may be entitled to a priority or
preference in like manner as if this chapter had not been enacted :
Fifth. Legal fees, costs, and expenses, of suit, and for the custody
of the ])roperty proved as preferred under section one hundred and
twenty-seven.
Sect. 97. If .at the time of ordering the dividend it appears probable Reservation for
that there are just claims against the estate which by reason of the dis- "torT* "^""^
tant residence of the creditor or for other sufficient reason have not isas, ic3, § 12.
been proved, the judge shall in ordering the dividend leave in the hands ^ 'ck. 312.
of the assignee a sum sufficient to pay every such absent creditor a pro-
portion equal to what shall be then paid to the other creditors, which
sum shall remain thus unapjiropriated in the hands of the assignee
until the final dividend is declared, or until the judge orders its dis-
tribution.
Sect. 9S. The assignee shall, at such time as the judge directs within Soeond divi-
eighteen months after the appointment of the assignee, make a second 'vssi^ecs' ac-
dividenil of the estate, if the same was not wholly distributed upon the counts.
. . . . ■ 1KJ.S 103 5 13
first dividend, and shall give notice of a meeting of all the creditors of r'sict. sis.
the debtor for that purjiose. At such meeting the accounts of the 20 rick. 312.
assignee shall be produced and examined as provided in section ninety-
five, and settled by the judge; and any balance appearing to be in the
hands of the assignee, shall, by order of the judge, be divided among all
the creditors who have jiroved their debts, in proportion thereto.
Sect. 99. If at any time before the final dividend there remain in Outstanding
the hands of the assignee any outstanding debts or other ]u-operty due Jli.'soi/'^''"*^
or belonging to the estate which cannot in the opinion of the judge be isss, 103, § 13.
collected and received by the assignee without unreasonable or inconven-
ient delay, the assignee may, under the direction of the judge, sell ar.d
assign such debts or other jiroperty in such manner as the court sh;Jl
order.
Sect. 100. Suits upon claims sold by assignees shall be brought in Suits on claims
the name of the purchasers. The fact of sale and of purchase \<y the sf^Jes."^'
plaintitf shall be set forth in the wiit, and the defendant may avail hiin- Costs.
self of any matter of defence of which he could have availed himself in 12 c'usii. 282.
a suit upon the claim by the assignee. Costs in such suits shall be
recovered by or against the plaintifi', and the assignee shall not be hable
therefor.
Sect. 101. Such second dividend shall be final unless a suit relating Further divi-
to the estate is then depending, or part of the estate is outstanding, or dcndBifneces-
unless some other estate or effects of the debtor afterwards come to the isss, i63, §13.
hands of the assignee; in which cases another dividend shall be made
by order of the judge. Further dividends sh.all be made in like m.an-
ner as often as occasion requires.
Sect. 102. No creditor whose debt is proved at the time of the Former div-i
second or anj' subsequent dividend shall disturb any prior dividend, but disturhed.
he shall be jiaid so far only as the funds remaining uuai>propriated in .In p' 'i'^afo ^"
the hands of the assignee are sufficient therefor.
596
COUETS OF INSOLVENCY -
[Chap. 118.
Applic^itious
by creditors.
1838, 103, § li).
ISH, 178, §§9,
12, 13.
1851, ISO, §2.
183fi, 281, §§ 25,
2 Met. .573.
4 Met. :!a2, 5M.
n Met. r)18, 521.
11 Mot. 2112, 459.
11 Met. 2:i:i.
1 Vuah. 149.
4 Cush. 121.
5 Cush. 409.
8 Cush. 101.
4 Gray, 550.
5 Gray, 144.
0 Gray, 329.
Warr.int to is-
sue. I'rooeed-
ings tliereon.
1838, 1(>!, § 19.
«Mot. 518.
9 Met. 450.
i Cu8h. 121.
Tfattfte'imentia
uot di.^ lived
tiirou^.i iieei-
deivtor miIs-
talce, proceed-
ings may be
Btayed.
1851, 189, § 3.
Debtor to be
deemed f^uilty
of luisde'meauor
in certain cases.
1850, 284, § 30.
APPLICATIONS BY CREDITORS.
Sect. 103. If any person arrested on mesne process in a civil action
for the sum of one liundred dollars or upwards, founded upon a demand
in its nature provable against the estate of an insolvent debtor, has not
given bail therein on or before the return day of such process ; or lias been
actually imprisoned for more than thirty days, in any civil action founded
on such contract, for the sum of one hundred dollars or upwards ; or if
any person wliose goods or estate are attached on mesne process in any
civil action founded on such contract, for the sum of one hundred dol-
lars or upwards, has not within seven days fi'om the return day of such
process dissolved the attachment in the manner provided in chapter one
hundred and twenty-three ; or if any person has removed himself or
any part of his projierty from the state, with intent to defraud his cred-
itors ; or has concealed himself to avoid arrest, or any part of his prop-
erty to prevent its being attached, or taken on a legal jn'ocess ; or j)ro-
cured himself or his ]5ro]jerly to be arrested, attached, or taken, on any
legal process ; or made any fraudulent payment, conveyance, or transfer,
of any part of his property ; any of his creditors whose claims provable
against his estate amount to the sum of one hundred dollars, may, within
ninety days tliereafter, apply by petition to the judge for the county in
which the debtor resides, or, in case the debtor has ceased to reside in
this state within one year next before the commencement of proceedings
against him, in the county in which he last had his residence, setting
forth the tacts and the nature of such claims, verified by oath, and pray-
ing that his estate may be seized and distributed according to. the pro-
visions of this chapter.
Sect. 104. The judge, after notice of the petition given to the debtor
by a copy thereof served upon him jjersonally or left at his last and
usual place of abode, and a hearing before him of the petitioner and
debtor, or a default by the debtor to appear in pursuance of said notit-e,
if the facts set forth in the ])etition appear to be true, shall forthwith
issue his warrant to take possession of the estate of the debtor. The
wan-ant shall be directed, and the jiroperty of the debtor shall be there-
on taken and distributed, in the same manner and with simihir proceed-
ings to those herein provided for the taking possession and distribution
of the property of a debtor upon his own petition.
Sect. 105. When a person by accident or mistake has failed to dis-
solve an attachment within the time required by section one hundred
and three, he may forthwith ajiply by ]ietition to the judge before whom
proceedings against him are ])eiiding, for a stay of the proceedings, and
after such notice to tlie petitioning creditor as the judge orders, or with-
out notice if the urgency of the case does not allow notice to be given,
the proceedings may be stayed by .an order of the judge until a hearing;
and if upon the hearing he proves to the satLsfaction of the judge th.at
he is in foct solvent, or that for any other cause the proceedings ought
to be stayed, the judge shall order the proceedings to be stayed and finally
suppressed.
CONCEALMENT OF PROPEKTY, &C.
Sect. 106. If a debtor after notice of the filing of a petition by or
against him secretes or conceals any property belonging to his estate,
or any books, deeds, documents, or writings, relating thereto, or re-
moves or causes to be removed the same or any ]iart thereof out of the
state, or otherwise disjwses of any p.art thereoli with a view to prevent
it from coming to the possession of the messenger or assignee, or to
hinder, impede^ or delay either of them in recovering or receiving the
same; or makes any jjayment, gift, sale, assignment, or conveyance of
any property belonging to his estate; or spends any part thereof in
Chap. 118.] courts op insolvency — partnerships. 597
gaming or otherwise, except such parts as mriv reasonably be expended
for the support of himself and his family, not exceeding the amount
allowable l)y law ; he shall be punished by imprisonment in the state
prison not exceeding five years, or in the jail not exceeding two years.
Sect. 107. A judge before whom proceedings are pending in rela- Prorwdin^s
tion to the estate of a debtor may, upon the complaint under oath of fniu'lui-u'try""*
any person interested therein, against any one suspected of having (•oiici-aiinj.'.&c.,
fi-amlulently received, concealed, embezzled, or conveyed away, any jMl'ri'iB^V/i"
money, goods, etfects, or other estate, of the debtor, cite the suspected itusU. «».
person to appear before him and be examined on oath upon the matter
of the complaint. If the person cited refuses to appear and submit to
such examination or to answer such interrogatories as are lawfully pro-
pounded to him, the judge may commit him to the jail of the county,
there to remain in close custody until he submits to the order of the
court. All such interrogatories and answers shall be in writing, signed
by the party examined, and filed in court.
PARTXEESHIPS.
Sect. 108. When two or more persons who are partners become inc.nscof
insolvcTit, a warrant may be issued as jirovided in this chapter, by tiie )'^!J"5'n3'so]
jiidge in whose county either of the partners resides, u])on the petition iMi'i, i^4' §3?'.
of one or more of the jjartners, (reasonable notice being first given by 2S^'ick!45'o.'
the judge to the other partners, if within the state, to show cause why * Jiet. .w, o3r.
its prayer should not be granted,) or u]ion the petition of any creditor w siet. i?' **'
of the partners; upon which warrant all the joint stock and pro])crty of ^ J\"^[[- Z,,"!'- .
the company and the separate estate of each of the partners shall be 5 Cush.' i.}], o':'
taken, exeej)t such parts as may be by law exempt fiom attachment; 9 cusii! sS' '*' '
and all the creditors of the company, and the separate creditors of each 10 Cusii. 4.')8,
partner, may prove their respective debts. 3 Gray, 2:19, S4,.
Sect. 109. The assignee shall be chosen by the creditors of tlie com- * 9^"^ '''-?' ^'^'- ■
pany; and shall keep separate accounts ot the joint stock, or property choice of as-
of the comjiany, and of the separate estate of each member thereof; siguceandad-
and after deducting out of the whole amount received by him the total jniut 'md scpa-
expenses and disbursements paid, the net ])roceeds of the joint stock "l^^i a'",Fs"^
shall be api>ropriatod to pay the creditors of the companj-, and the net isis, kb, §21.
proceeds of the sei)arate estate of each partner shall be ajipro])riated to loSjusii.^^fe
pay his separate creditors. If there is any balance of the separate estate ^oa.
of a partner after the payment of his separate debts, it shall be added 5 Gray"; 574! "'
to the joint stock for the payment of the joint creditors. If there is a ^^ ^"S"' "•''•
balance of the joint stock after the jiayment of the joint debts, it shall
be diviiled and approjiriated to and among the sei)arate estates of the
several partners according to their respective rights and interests there-
in, and as it would have been if the partnership had been dissolved
without insolvency; and the sum so appropriated to the separate estate
of each partner shall be applied to the payment of his scjjarate debts.
Sect. 110. The provisions of the two preceding sections shall apyily Prorisionin
to hinited partnerships formed under chapter fifty-five, or under chapter plrtrnTsWris^
thirty-four of the Revised Statutes, when such partnerships become in- is3s, i63, §22'.
solvent ; but the separate estates and separate debts of the special part-
ners shall not be subject to the proceedings against the partnership.
Sect. 111. In all proceedings against ]iartners each shall be entitled Separate aiiow-
to allowance as herein before provided for the maintenance of himself partiiw-'^'"''
and his family; and the allowance on the net jiroduce of the estates as imn uti. §21.
j)rovided in section ninety-two, shall be computed on the joint estate, ^ '^'^'^' '**'
and also on each of the separate estates, as if there had been a separate
■warrant against each ; but neither of the partners shall receive in the
whole more than five hundred dollars.
Sect. 112. The certificate of discharge shall be granted or refused Certificate of
598 COURTS OF INSOLVENCY — INSOLVENT CORPORATIONS. [ChAP. 118.
discharge to to eacli partner as it would or ought to be if the proceedings had been
isas iS'§° i' against him alone. In all other respects the proceedings against
partners shall be conducted in the same manner as against a single
person.
ns^SOLVEXT CORPOEATIONS.
Corporations Sect. 113. Any Corporation created by authority of this state, ex-
auttiorizrfoffl-'' "cpt railroad and banking corporations, may ajijily by jietition signed
wr. \)y an officer duly authorized by a vote of a majority of the corporators
is'ivicttsdi! '' "' present and voting at a legal meeting called for the ]iurposc, to tlio
3 Gray, 531. judge for the couuty where the corporation has its principal jilaee of
business, setting forth its inabiUty to pay its debts and its willingness
to assign all its estate and effects for the benefit of its creditors, and
praying that such proceedings may be had in tlie premises as are here-
inafter provided. The judge shall thereupon forthwith issue a warrant,
.as In the case of an application by a debtor under section seventeen,
but requiring the notice given by the messenger to state further that
the making of any contract by the corjwration is forbidilen by law.
Proceedings Sect. 114. Thereuijon like proceedings shall be had, with like ]iow-
r^^UaBt'iVw"^" ers, duties, and privileges, of the judge, register, messenger, assignee,
eoo. ^ and creditors, as are herein before provided upon the petition of a
' ' ' debtor, except as hereinafter mentioned.
Claims before Sect. 115. Claims ou account of bills of exchange, indorsements,
provable!™'' money due on bottomry or respondentia bonds, paid upon iudorse-
1S51, 327, §3. ments, or as surety, may be proved against an insolvent corporation be-
fore the making of the last dividend, in like manner as against the
est.ate of an insolvent debtor before the making of the first dividend.
Sciieduies. Du- Sect. 116. The schedules to be furnished shall be prepared and fur-
ti(«,&c., ofoffi- jjjgj^g^] i,y the treasurer or other financial officer of the corjioration,
1851, 327, §§6, -with such assistance as he requires from the other officers; and all the
^' **■ provisions of this chapter which a]jply to the debtor or set forth his
duties in regard to executing papers, submitting to examinations, dis-
closing, making over, secreting, concealing, conveying, assigning, or pay-
ing away, his money or property, shall in like manner, and with like
force, eftect, and penalties, apply to each an<l every officer of the cor-
poration, in relation to the same matters concerning the coqioration,
and the money and property thereof And said officers shall at the
second meeting severally make and subscribe an oath in substance as
follows : —
Oath. I> > (presidem, &c., or treasurer, &c.,') do swear that I verily believe the ac-
count of the creditors of the corporation, contained in the schedule si^'ncd by A. B.,
and now on file in court, is in all respects just and true ; that I do verily believe that
all the property and estate of said corporation, and all its books of account and papers,
have been delivered to the messenger or the assignee ; and that if any goods or estate
not so delivered, hereafter come to my knowledge, I will faithfully and diligently ap-
prise the assignee thereof. And I do further swear that, to the best and utmost of my
knowledge, information, and belief, there is no part of the estate or effects of said cor-
poration made over or disposed of in any manner in fraud of the laws relating to in-
solvency or of the creditors of said corporation.
Fr.inchise of Sect. 117. In the casc of a turnpike, canal, bridge, or other coqiora-
corporatioa au- tj^jj authorized bv law to take toll, the assignment to the assignee shall
toll, may be cmpower him to sell and convey the tranchise ot the corporation, antl
??«,'■ oo- «« anv and all propertv and riohts connected with the exercise thereof, to
such persons as become the purchasers ot the same ; and by virtue ot
such sale and conveyance such purchasers and their associates shall be
deemed to be so far the owners of all such franchises, that they may
have such corporation organized anew by themselves as its sole mem-
bers, in the manner provided in section three of chapter sixty-eight, and
the provisions of law ap])lic.able to such coqioration. When the coqio-
ration has been thus organized anew, it shall be deemed to be lawtully
Chap. 118.] courts of insolvency — insolvent corporations. 599
possessed, as of its own property, of all tlie franchises to such corpora-
tion previously granted, and of all the ])roperty and rights so sold and
conveyed with such franchises ; and such purchasere, their associates,
successore, and assigns, shall be the only members of the coi-poration.
When such corporation is so organized anew, it shall not be liable to
any suit at law or in equity, founded on any contract (jierformable
within this state or made with any citizen thereof) which existed prior
to such organization, nor for any claim provable under this chapter.
Sect. 118. When an assignee proceeds to sell the franchises of a Propiitv may
corporation under the preceding section, he shall, if the judge has so sJia'i!^',^'.',"! pur-
ordered, expose the property, estate, or assets, of the corjioration, for ?ii;is<''-8 ur{fau-
sale in shares, in number equal to the whole number of shares of the i^j^air, §2r.
capital stock of the corporation, and such shares may thereupon be sold
separately, and the purchasers thereof may organize anew in the man-
ner in said section provided.
Sect. 119. All claims against any turnjiike, canal, or other coi-jiora- Lanri dumagea
tion authorized to take land or mateiials, for damages for taking land J'|"jn"'''*
or materials, or laying out such road, canal, or turnj»ike, shall be pre- i»oi, :u7, § 19.
ferred debts, next after debts due to the United States and to the com-
monwealth.
Sect. 1"20. All payments, conveyances, and assignments, made fraud- void prefer-
ulent and void by sections eighty-nine and ninety-one, when made by a j^'f^'j.j- 59
debtor, shall in like manner, to the like extent, ami with like remedies,
be fraudulent and \oid when made by a corporation which is subject to
the provisions of this chapter.
Sect. I'll. An allowance or discharge shall not be granted to any Xo discharge,
corporation, or to any person as officer or member thereof. ^J;„' '^ ^rp"""*-
Sect. 12"2. If a corporation whose goods or estate are attached on Procwdings
mesne process in a civil action founded on a contract for the sum of one pfi'","i','n '^'"'"
hundred dollars or upwards, whidi is in its nature provable under this iN".i,:i-'r, §17.
chapter, does not within fourteen days from the return day of the writ, '^''> ■^*^> 5 *>•
if the terra of the court to which the process is returnable so long con-
tinues, or on or before the last day of the term if the same sooner ends,
dissolve the attachment in the manner j)rovided in chapter one hundred
and twenty-three ; or if a corporation makes any fiaudulent payment,
conveyance, or ti-ansfer, of its projierty or any part thereof; any of its
creditors whose claims provable against its estate under this eha])ter
amount to the sum of one hundred dollars, may apply by petition, stat-
ing the facts and the nature of said claim or clauns, verified by oath, to
the judge in the county in which the cor]ioratiou is established, praying
that its estate may be seized and distributed according to law ; and
thereupon, after notice of the presentment of the petition given to the
corporation by a cojjy thereof served on its president, treasurer, or clerk,
thirty days at least before the return day of tlie notice, and a hearing
of the petitioners and coqioration, or after default of the corporation to
appear at the time and place in the notice appointed, if the facts set
forth in the petition appear to be true, the judge shall forthwith issue
his warrant to take possession of the estate of the coqioration ; and such
flirther proceedings shall be had thereon as ujjon a warrant issuing upon
the petition of a corporation under section one hundred and thirteen.
Sect. 1'23. If a mortgage is foreclosed pending j)roceediugs imder Redemption of
the ten preceding sections and before the appointment of an assignee, Jsil^a-'PI'^o
the assignee when appointed may redeem the same at any time within
sixty days after his appointment, \\ith similar remedies to those pro-
vided by law for the redemption of mortgages before foreclosure.
Sect. 124. Nothing in the preceding -sections shall give validity to Mortgages not
or affect any mortgage made by a coi-jjoration for any purpose whatever. ]^''J^'|ji'j, §26.
jOO courts op insolvency — VACATING PROCEEDINGS, RETURNS. [ChAP. 118.
Fees for war-
rant, &c.
IS56, 284, § 21.
Register to re-
ceive and ac-
count for fees.
1856, 2S4, § 24.
Costs when at-
tachments are
dissolved.
1S41, 124, §6.
11 Met. 213.
2 Cush. 173.
3 Cush. 342.
See § 96.
award of.
ISoli, 2S4, § 3S.
1859, 190.
execution
may issue for.
1850, 281, § 39.
FEES AND COSTS.
Sect. 125. In each case there shall be allowed and paid the follow-
ing fees, and none other, viz.: —
For issuing the wavnint, five dollai-s :
For each day on which a meeting is held, seven dollars :
For each order for a dividend, five dollars.
Such fees shall have )»riority of payment over all other claims out of
the estate, and before a warrant issues the ])etitioner shall deposit with
the register, or with the judge to be delivered to tlie register, forty dol-
lars, as security for the payment thereof; and if there are not sufficient
assets for the payment of the fees, the jierson upon whose ])etition the
warrant is issued shall pay the same, and the court may issue an execu-
tion against him to comijcl payment to the register.
Before any dividend is ordered, the assignee shall ]iay out of the
estate to the messenger the following fees and no more : —
First. For service of the warrant, two dollars :
Second. For all necessary travel, at the rate of four cents a mile :
Third. For each written notice to creditors named in the schedule,
ten cents :
Fourtli. For custody of property, publication of notices, and other
services, his actual exjjenses, upon returning the same in sjiecitio items,
and making oath that they have been actually incurred and paid by
him, and are just and reasonable:
For cause shown and upon hearing thereon, such further allowance
may be made as the court in its discretion may determine.
Sect. 126. The register shall receive all fees, and account for and
pay over the same to the treasurer of the commonwealth quarter-yearly,
on the first Mondays of January, A])ril, July, and October.
Sect. 127. When an attachment on mesne ])rocess has been made
and is not dissolved before commencement of proceedings in insolvency,
if the claim upon which the suit was commenced is proved against the
estate of the debtor, the plaintilf may also jirove the legal fees, costs,
and ex])enses, of the suit and of the custody of the property, and the
amount tliereof shall be a privileged debt.
Sect. 128. In all matters of insolvency contested before a court of
insolvency, the superior court, or in the su]ireine judicial court, said
courts may in their discretion award costs to cither jiarty to be paid by
the otlier, or to either or both parties to be paid out of the estate which
is the subject in controversy, as justice and equity may requirf.
Sect. 129. When costs are awarded to be paid by one party to the
other, said courts respectively may issue execution therefor.
VACATING PEOCEEDTNGS.
Proceedings Sect. 130. When a creditor who has proved his debt petitions the
184S 3&/Tw"''' J^'^'y^ to vacate the proceedings in a case, the judge may order the pro-
.3 Gray, 531. ceedings to be stayed, and aiter due notice to nil persons interested in
e Gray, 243. ^j^j, estate and a hearing of the matter, if no objection is made by the
debtor or any such creditor, pass an order vacating all proceedings
therein.
KETI'RNS.
Judges to m-ike Sect. 131. Each judge shall on or before the tenth day of each month
turns°to be're- 'n!»ke a return to the secretary of the commonwealth of the n.ame, resi-
cordqd and open dciice, and occuiiation, of each person by or against whom as an insol-
for inspection. » i i .. i j. .^i I- i ' i? ^i i • i r i •
iMii, Ills, §3. vent flebtor, and oi the name oi each corporation, the kind ot business
iboi, 327, § 24. for which it was created, the place or])laees where its business was jirin-
cipaUy done, by or against which, as an insolvent corporation, a petition
Chap. 119.] judges and registers of probate and insolvency. 601
h.is been filed in Iiis court during the next preceding month, with the
dates of sucli petitions. The secretary shall enter such returns, conven-
iently for reference, in a book which shall be open to the inspection of
the pubUc.
CASES BEFORE COMMISSIONERS, &C.
Sect. 132. Nothing in this chapter shall affect the jurisdiction of a Jurisdiction of
commissioner of insolvency or master in chancery in any case pending ftc^'inoiBes^"'
before him .at the time of its enactment; but such jurisdiction .shall con- penrting.
tinue in full with the same fees of such commissioners, musters, and y'Met.m "''
their clerks, as heretofore established.
Sect. 133. If a commissioner of insolvency or master in chancery Removal of
before whom proceedings upon any case in insolvency mentioned in the dS"i-c"of
preceding section are pending, dies, is removed from the charge of the commissioner,
case, or for any cause is unable to perform the duties required of liini, i^h, irs, §15.
the case and till pajjers connected therewith shall be transferred to the ]^'-'r,%'
court of insolvency for the county in which the case is pending. The ib5ojS4i§2.
court shall thereupon h.ave jurisdiction of the case and proceed therein
as if it had been originally commenced in said court.
Sect. 134. Upon the closing of proceedings in a case pending before Papers, &c., to
a commissioner of insolvency or master in chancery, all papers and rec- pro'i'lateomre."
ords relating thereto shall be returned to and deposited in the office of wi'<, ^ijJ, § 14.
the register of jsrobate and insolvency for the county. '
CHAPTER 119.
OF JUDGES AND REGISTERS OF PROBATE AND INSOLVENCY,
JUDGES.
Section
1. Ai)pointmGnt of judges of probate and in-
solvency.
2. Oath of judge.
3. Judges may interchange, &c.
4. case of abnence, interest, vacancy, &c.
6. Register to certify, &c. Ronds, &c.
6. Judges not to be counsel or attorney in
certain cases.
REGISTERS.
7. Registers* oaths.
8. Bonds of.
9. Register not to be of counsel, nor to receive
fees in certain cases.
Section
10. Register to have custody of books, &c., be-
longing to probate office, »S:c.
11. Assistant registers for Suffolk, Middlesex,
Worcester, Essex, and Noribik.
Vi. duties of.
13. Vacancy, how filled.
14. Temporary register, when appointed.
15. oath, &c., of.
S.\LAKIE3 AND FEES.
Ifi. Salaries of judges, registers, and assistant
registers.
17. Compensation of temporary register.
18. Judges, «!i:c., not to receive fees.
JUDGES.
Section 1. The judges of probate and insolvency shall continue to Appointment.
hold their offices according to the tenor of their commissions, and as ar°t"i^ch' s'^"^'
vacancies occur they shall be filled in the manner in-ovided by the con- art. i.
stitution, so that there shall be one judge in each county. i^rs, jj, si.
SEf'T. 2. Each judge, before entering upon the duties of his office, Oath of jadg:e.
in addition to the oaths iireserihcd by the constitution, shall take and n,™"]* ' ^mcna.
subscribe an oath that he will faithfully discharge said duties, and that const, nrt. n.
he will not during his continuance in office directly or indirectly be insn.oM. § le.
interested in or benefited by the fees or emoluments arising from any isss, 93, §§ 2, 3.
suit or matter ponding in either of the courts of which he is judge;
which oath shall be file<l in the probate office.
51 76
602
JUDGES AND REGISTERS OF PROBATE AND INSOLVENCY. [ChAP. 119.
Judj^es may in-
tercnan;,'e, &c.
185'J, 110.
ia case of ab-
sence, iuterest,
vacaucy, &c.
K. S. m, § la.
18.51, 2.5:i.
IHSli, 2ns.
isai;, :1S4, § 3.
5 Pick. 4s:j.
9 Pick. 287.
21 Pick. 101
22 Pick. 50?
11 Met. .390.
3 Cush. W4.
7 Gray, 3111.
Register to cer-
tify, &c.
Bonds, &c.
1859, 110, § 3.
Judges not to
be counsel or
attorney in cer-
tain eases.
K. S. M, §20.
18.5 1, 281, § 18.
ISoS, y:i, §§ 2, 3.
Sect. 3. The judges may interchange services or perform each
other's duties when they find it necessary or convenient.
Sect. 4. If a judge is a party, or interested to the amount claimed
of one hundred dollars exclusive of interest, in any case arising in his
county, or is absent or unable to perform his duties, and no judge acts
for him under the provisions of the preceding section, or if there is a
vacancy in the office in any county, the duties shall be performed in
the same county by the judge of any other county designated by the
register from time to time as necessity or convenience may require.
Sect. 5. The register shall certify on his records the times during
which, or the cases in which the judge of another county acts. Bonds
required to be given to the judge shall be given to the judge ajipointed
for the county, or in case of vacancy to the acting judge, and his suc-
cessors in office, and all business shall be done in his name, or the name
of the probate court or the court of insolvency for the same county, as
the case may be ; but bonds may be approved, and other acts required
to be done or certified by the judge maybe approved, done, or certified,
by the acting judge. •
Sect. 6. No judge shall be retained or employed as counsel or at-
torney, either in or out of court, in any suit or matter which may depend
on or in any way relate to a sentence, decision, warrant, order, or de-
cree, made or passed by him; nor for or against an e.xecntor, adminis-
trator, or guardian, appointed within his jurisdiction, in a suit brought
by or against the executor, administrator, or guardian, as such ; nor in
a suit relating to the official conduct of such party ; nor for or against
a debtor, creditor, or assignee, in a cause or matter arising out of or
connected with any proceedings before him ; nor in an appeal in such
cause or matter.
Rei^iHter, oaths
of.
Const. Ch. 0,
art. 1. Amend,
const, art. (i.
K. S. Ki, § 21.
isjil, -JNI, § 12.
1S58, Hi, § 5.
bonds of.
R. S. Sl,§21.
IW., J>l, § 12.
i.sjr, 15.
Isos, 'j:i, §§ 5, 8.
not to be of
counsel, nor to
receive fees iu
certain cases.
K. S. 83, !) 27.
ISoli, 28-1, § 17.
1858, 93, § 5.
to liave custo-
dy ol'l)ut)ks,.\:e.,
ljeloii.,^iiiu' to
probate ofliee,
&c.
R. S. 83, § 22.
18SI), 284, § 13.
1858, 93, § 5.
Assistant regis
ters for Suffolk,
Middlesex,
Worcester, Es-
REGISTERS.
Sect. 7. Every register of probate and insolvency, before entering
upon the duties of his office, in addition to the oaths prescribed by the
constitution, shall take and subscribe an oath that he will faithfully
discharge said duties, and that he will not during his continuance in
office directly or indirectly be interested in or benefited by the fees or
emoluments arising from any suit or matter jiending in either of the
courts of which he is register ; which oath shall be filed in the probate
office.
Sect. 8. He shall give bond, with condition that he will faithfully
discharge the duties of his office, to the treasurer of the commonwealth
ill a sum not less than one thousand and not exceeding ten thousand
dollars, as ordered by the judge, with one or more sureties approved
by him.
Sect. 9. No register shall be of counsel or attorney either in or out
of court, in any suit or matter pending in either of the courts of which
he is register ; nor in an appeal therefrom ; nor shall he be executor,
administrator, guardian, eoinmissioner, a]i])raiser, divider, or assignee,
of or upon an estate within the jurisdiction of either of the courts ot
which he is register ; nor be interested in the fees or emoluments aris-
ing from either of said trusts.
Sect. 10. The register sliall have the care and custody of all books,
documents, and pa])ers, apiiertaining to the courts of ^\■luch he is regis-
ter, or deposited with the records of insolvency or filed in the probate
office; and shall carefully preserve the same to be delivered to his suc-
cessor. He shall perform such other duties a]i])ertaining to his office as
may be required by law or prescribed by the judge.
Sect. 11. The judges for the counties of Suffiilk, Middlesex, Worces-
ter, Essex, and Norfolk, may each appoint an assistant register of pro-
bate and insolvency for his county, who shall hold his office for three
Chap. 119.] judges and registers of probate and insolvency. 603
years unless sooner removed b)' tlie jmlge. Before entering upon the sex, and Nor-
clischarge of his duties the assistant register shall take the oaths pre- Ji'o^jtch.c,
scribed by the constitution, and shall give bond, with condition for the »■'• '• Amend,
fllithful performance of the duties of his otHce, to the treasurer of the isss, 93, §§ e, 8.
commonwealth in a sum not less than tive hundred nor more than live
thousand dollars, as ordered by the judge, with one or more sureties
approved by him.
Sect. 12. The assistant register shall perform his duties under the Assistant rraa-
direction of the register, and shall pay over to him all fees and sums re- Ss''ua,"§5c,V.
ceived as his assistant, to be accounted for as required by law. He may
authenticate papers and perform such other duties as are not performed
by the register. In case of the absence, neglect, removal, resignation,
or death, of the register, the assistant may complete and attest any
records remaining unfinished, and act as register until a new register is
qualified, or until the disability is removed.
Sect. 13. If a vacancy occurs in the office of register, the governor v.icanoy in of-
with the advice and consent of the council may ap]ioint some ]jerson to {"Xr'irs^'s'^^'^'
fill the oftice until another is elected as provided in chapter ten. i.^o>|u.!,'§i2'.
Sect. ] 4. Upon the death, resignation, removal, or absence, of the Temporary
register, if there is no assistant register, or if he is also absent, the ju<lge k.'s!'^,' s 23.
shall appoint a suitable person to act as temporary register until a "*':>,;"■'.§'*•
register is appointed or elected and qualified', or until the disability is intnIu:),'^ ;;,•),
removed. 5, a. '
Sect. 15. Such temporary register shall be swora before the judge, oath, ,tc., oc.
and a certificate thereof, with his aj)]iointment, shall be recorded with {^'iJi' '^i.l^* sj^i'l'^"
the proceedings of each court iu which he acts. is. WI 93.
SALARIES AND FEES.
Sect. 16. Judges, registers, and assistant registers, shall receive from Saiarioaof
tl»e treasury of the commonwealth annual salaries as follows: — tcrf&'cr^^
For the county of Suftblk, the judge and retrister each three thousand, iso.sy3,§§ 13,14.
n •! ■ ^ i • » txti 11 11 V? See Cb. 15, § 38.
and the assistant register tirteen lumdred, dollars: .suitoII-
For the county of JNIiddlesex, the judge two thousand, the register jiiiuiiesex.
fifteen hundred, and the assistant register one tlujusand, dollars:
For the county of Worcester, the judge eighteen hundred, the regis- Worcester,
ter fifteen hundred, and the assistant register one thousand, dollars :
For the county of Essex, the judge and register each fifteen hundred, Essex.
and the assistant register eight humlred, dollars :
For the county of Norfolk, the judge fourteen hundred, the register Norfolk.
one thousand, and the assistant register six hundred, dollars :
For the county of Bristol, the judge eleven hundred, and the register Bristol,
thirteen hundred, dollars :
For the county of PljTnouth, the judge and register each one thou- Piymoutu.
sand dollars :
For the county of Berkshire, the judge and register each eight hun- Berkshire,
dred dollars :
For the county of Hampden, the judge and register each eight hun- Hampden,
dred dollars:
For the county of Barnstable, the judge and register each seven Barnstable,
hundred dollars :
For the county of Hampshire, the judge six hundred and fifty, and Hampshire,
the register seven hundred and fifty, dollars :
For the county of Frankhn, the judge six hundred, and the register Franklin,
seven Juuulred, dollars:
For the county of Nantucket, the judge and register each three hun- Nantucket
dred dollars :
For the county of Dukes County, the judge two hundred and fifty, Dukes.
and the register three hundi-ed and fifty, doUars. ''*'*' "^'
G04
JUSTICES OF THE PEACE — CIVIL JURISDICTION. [ChAP. 120.
Compensation
of tt'niporury
re;,'-ister.
K. S. M, § 24.
isaii, a»4, § H.
1S5S, 93.
.Judges, &c., not
to receive lees.
K. S. al, § ryl.
J867, 274, § 2.
185S, 93, §§ 2,
3,5.
Sect. 17. When a tcinporary register is ajipointeJ, lie shall be en-
titlefl to the same eoiiipensatioii as the register, and shall be paid by
him if the appointment is caused by his absence. If caused by the
death, removal, or resignation, of the register, he shall receive from the
treasury of the commonwealth the salary of the register.
Sect. 18. No judge or register of ])robate and insolvency shall re-
ceive any fee or compensation in addition to his salary for holding
courts or acting as judge in any county, nor for .any thing done in his
otiicial capacity, except in cases exjjressly provided by law.
CHAPTER 120.
OF JUSTICES OF THE PEACE.
JURISDICTION AND PROCEEDINGS IN CIVIL
MATTERS.
Section
1. Original and exclusive juristiiition.
2. Coucurreut jurisdiction.
3. Justices may issue scire facias against ex-
ecutors, &c.
4. Within what time to be served.
5. Proceedings thereon.
0. Writs, forms of, wliere to run.
7. may run into any county for attachment.
8. service of, on absent defendants.
9. When, &c., causes may be heard.
10. On faihire of justice to attend, other justice
may attend, &c.
11. Judgment for plaintiff on default, &c,
12. for defendant.
13. Cases concerning real estate may be re-
moved to superior court, &c.
14. If party does not recognize, justice shall
try tlie case.
15. Proceedings on such appeal.
K). Pleas before a justice.
17. Jury in actions over twenty dollars, when,
&c.
18. Summoning, attendance, &c., of jury. Judg-
ment.
19. Six jurymen.
20. Proceedings on trial.
21. Duty and fees of oflacer attending.
22. Jurors' fees.
2.1. deficiency in number of jury, how supplied.
24. Chapter one hundred and tliirty-two appli-
cable.
25. Appeal allowed to the superior court.
2(».
30,
Appellant to recognize,
to produce papers, &c., or former judg-
ment affirmed.
Pleadings on appeal.
Proceedings on judgment after death of
justice.
Same subject,
31. Execution, how issued thereon.
jurisdiction, &C., in CRIMINAL MATTERS.
32. General powers.
trial justices.
Section
33. Justices commisaioned to try criminal
cases.
.34. number of.
35. authority to cease on change of domicil.
36. jurisdiction of.
37. Same subject.
38. Jurisdiction of breaches of the peace.
39. to biud over offenders to sui)erior court.
40. by-laws ; selling liquor, &c.
41. of larcenies, buying, &c., stolen goods,
&c., obtaining property by false pretences,
trick, &,c. Punishment. Kestitution.
42. 43. concurrent, in certiiin cases. .
44. of larcenies from building, &c.
45. to arrest, bind over, &c., for felonies,
misilcmoiniors, ttc.
40. Appeal allowed to superior court.
GENERAL PROVISIONS.
47. Justices to frame and issue necessary writs,
&c.
48. may grant summons in criminal cases.
49. may administer oaths, &C.
50. punish for contempts.
51. to keep record.
52. may adjourn courts.
53. not to commence actions before them-
selves. '
54. not to be of counsel or attorney, &c.
55. power of to continue after commisBion
expires to issue execution.
56. when commission of, expires and is re-
newed.
57. to account for all fines, A-c, received.
58. to make annual returns to couuty treas-
urers of fees of sheriffs, A'c.
59. to secretary, of crimes, costs, &c.
(iO. penalty on, for neglect.
01. Secretary to furnish forms, ttc.
62. This chapter not to affect police courts.
JURISDICTION AND PROCEEDINGS IN CIVIL MATTERS.
Original and SECTION 1. JusticGS of the peace may severally hold courts within
excTusive juris- ^|^^j^. eounties, and shall have exclusive original jurisdiction of all actions
R?s^85,§i. of replevin for beasts distrained or impounded in order to recover a
Chap. 120.] justices cf the peace — civil jurisdiction. G05
penalty or forfeiture supposed to have been incurred by their going at R. s. 104, §4.
large, or to obtain satisfaction for damages alleged to have been done by ''ji^.'sy'i?''^'
them; actions of forcililc entry and detainer; and actions of contract I,' p'.'*'.'- '-''£'■ .
and tort wherein the debt or damages demanded do not exceed twenty seocii! 143!
■iollars.
Sect. '2. Tliey shall have original and concurrent jwrisdiction Mith Concurrent ju-
.he superior court of all actions of contract, tort, or replevin, where the i^'s^m,"§2.
lebt or damatres demanded or value of the property alleged to be detained "*■''. 3h, § 1.
s more than twenty and does not exceed one hundred dollars. 1 aitt.'aoi).
Sect. 3. They may issue writs of scire facias against executors and Justices may is-
idministrators, upon a suggestion of waste after judgment against them, agaJusTlxecu^
md also aijainst tlie bail taken in a civil action before them, and in-oceed 'i"'^.'*P- „
,.^., , ... ^1. K. .S. So, § 10.
.herein to judgment and execution 111 the same manner as the supenor See rn. 12s, §10.
;ourt might do in like cases.
Sect. 4. Such writs shall be served not less than seven nor more winiin what
than sixty days before the time when they are returnable, and may run 8™',,^° "^
into any county in which the defendant may be found. i*- *■ '^> § "'•
Sect. 5. It shall be no bar to such suit that the debt and costs on ProccctUngB
the original judgment together exceed the sum of one hundred dollars ; h.'^^J^; 5 is.
but judgment and execution may be awarded by the justice for the whole
sum due to the plaintitF with the costs of the new suit.
Sect. 6. The original writ in all civil actions commenced before a ■Writs, forms of,
justice of the peace, shall be a summons or a capias and attachment, and ];''|'"'s6Y"°"
shall be signed by the justice. Tiie forms of such writs shall be regu- See §4.'
lated as provided in chapter one hundred and twenty-three ; but no writ cii. m/§^'i?*''
issued by a justice of the peace shall run into an)' other county than that
in which it is returnable, except as provided in the following section and
section seventy-seven of chapter one hundred and forty-two.
Sect. 7. Writs issued bv iustices of the ijcace may be directed to the "">y run into
m • i !• ii c • i» 1 * ""y '"unty for
proper omcers in any county tor the purjiose ot causing an attachment i,ttiiciinu-nt.
of property therein; but no more than one dollar and fifty cents shall i^'s, i2i,§i.
be chargeable to or taxed against the defendant for the service of such
writ.
Sect. 8. When an attachment is made upon a writ return.able before service of, on
a justice of the peace, and the defendant is out of the state, so that no *lJ™" ''''''^'"^'
service can be made on him, and he has no agent or attorney residing ims, 121, §2.
within the st.ate, the justice may order the action to be continued until ""'' ■'""■
notice thereof is given to the defendant in such manner as the justice
shall order. Upon proof of such notice having been given, if the defend-
ant fails to appear on the return day of such notice, judgment may be
entered and execution issued for the plaintitt", upon his giving bond to
the defendant with sufficient surety for double the sum for which execu-
tion is to be issued, to repay the amount recovered if within one year
fi'oin the rendition of the judgment it is reversed.
Sect. 9. Actions before justices of the peace may be heard and deter- When, Ac,
mined at their dwelling-houses or any other convenient and suitable [.""Jj^ °'"^ ^
places; and writs and processes maybe made returnable accordingly, n.s. sa, §31.
but not earlier th.an nine o'clock in the forenoon nor later than live i cuVh'.'455.
o'clock in the afternoon.
Sect. 10. If a justice fails to .attend at the time and jjlnce to which a On failure of
civil process is returnable or continued before him, any other justice for temCother^jus-
the same county may .attend ar^ continue the process not exceeding tice may attend,
thirty days, without costs and sOTing the rights of all ]iarties; and he itn's, 193, §§ 1, 2.
shall make a certificate thereof, which shall be filed with the papers in
the case and entered upon the record by the justice before whom the
process was returnable.
Sect. 11. If any person duly sensed with process fails to appear and .ludsrment for
answer thereto, his default shall be recorded and the charge against him HJuit'l&c"" ^^'
in the declaration taken to be true. Upon such default, or when the
61*
606
JUSTICES OF THE PEACE — CIVIL JURISDICTION. [ChAP. 120.
E. S. 85, § 9.
2 Gray, ilO.
Judgment for
deft'iKiaiit.
K. S. 85, § 10.
Cases concem-
iiiLr real estate.
k: .S. K5, §:J.
1!. S. 1(M, § 9.
4 Pick. llii).
19 I'iek. 419.
1 Jlet. 309.
8 Met. W7.
10 Met. 250.
0 Cush. 270.
SeeCll.l3r,§10.
If party does
not recojniize,
&e.
K. S. 85, § 4.
1859, 190.
19 Pick. 419.
See Cll. 13r, § 9.
Proceeding's ou
eucil appeal.
K. S. 86, §5.
19 Pick. 419.
Pleas before
a justice.
K. S. 85, § II.
I Mass. 2:)4.
6 Mass. 1.
II Mass. 313.
19 Pick. 419.
8 Met. 167.
11 Gush. 315.
Jury in actiouB
over twenty
dollars, when,
&c.
18.52, 314, §2.
1858, 71.
Snmmonino' at-
ti*ndanee, Ac, of
jury.
Judgment.
1852,314, §2.
See Ch. 132.
Six jurymen.
1852, 314, § 3.
Proceedings on
triiU.
1852, 314, §§.3,4.
I>uty and fees
of officer attend-
ing.
plaintiff m.aiutains liis action upon a trial, the justice shall award and
enter judgnient for such sum, not exceeding the amount of his jurisdic-
tion in the case, as he upon inquiry finds the plaintiff is entitled to
recover, with costs.
Sect. 12. If the plaintiff fails to enter and prosecute his action, or if
upon a trial he does not maintain the same, the defendant shall recover
judgment for his costs, to he taxed by the justice.
Sect. 13. When it appears by the pleadings or otherwise, in an
action pending before a justice of the peace, that the title to real estate
is concerned or Ijrought in question, the fact, if it does not ajipear by the
pleadings, shall be stated on the record, and the case shall at the request
of either p.arty be removed to tlie superior court, to be there tried and
determined in lilce manner as if it had been originally commenced in
that court.
Sect. 14. The party requiring the case to be removed shall recognize
to the other party in a reasonable sum with sufficient surety or sureties,
with condition to enter the action at the superior court next to be held
in the county; and if he fails so to recognize, the justice shall hear and
determine the case as if there had been no request to remove it.
Sect. 15. The party recognizing shall ])ro(luee at tlie court a copy of
the record and all papers required to be produced by an appellant, and
if he fails so to do, or so to enter the action, he shall upon the com-
])laint of the adverse party be there defaulted or nonsuited, as the case
may be, and such judgment shall be thereujjon rendered as law and jus-
tice may require.
Sect. 16. In civil actions the trial may be had at the election of the
defendant, cither upon pleadings in writing as heretofore used, or the
defendant without filing any written plea may orally deny the jilaintiff's
right to maintain his action ; in which case an entry shall be made on the
record that the defendant apjiears and denies the plaintiff's right to
maintain his action, and puts himself on trial, or in words to that effect.
Upon the issue so joined a trial may bo had, and any matter may be
given in evidence by either party which would have been admissible
if the defence had been made under any plea in bar.
Sect. 17. Either party to a civil action before a justice of the peace
where the debt or damage exceeds twenty dollars, and in actions of
replevin where the value of the property alleged to be detained does
not exceed one hundred dollars, may on the return day of the writ, upon
all ])arties filing a written waiver of all right of a]i]ieal, demand a trial
by jury, which shall be granted; and there shall be no right of appeal
from the judgment of the justice upon tlie verdict of the jury.
Sect. 18. Upon granting such trial the justice shall issue a wiit of
venh-e facias, directed to the sheriff of the county or either of his dep-
uties, or a constable of the city or town where the court is held, requir-
ing the attendance of six jurors from such city or town at the time and
place stated in the warrant, but not more than twenty-one days from its
date. The same proceedings shall be had in drawing and summoning
such jurors as in other cases, except that it shall be sufficient to summon
them two days before the trial. The jury so summoned may try any
number of cases before the justice, but shall not be detained more than
fourteen days, except to finish a case commenced within that time.
Judgment shall be entered according t» the verdict of the jury.
Sect. 19. The jury shall consist of six persons, who shall be sworn
and empanelled by the justice.
Sect. 20. They shall choose a foreman by ballot, and the trial shall
be conducted before the justice in the same manner as nearly as may be
as jury trials before the supreme judicial court.
Sect. 21. A sheriff or constable shall attend such trials and attend
on the jury when they retire to make up tlieir verdict. His fees shall
Chap. 120.] justices of the peace — civil jurisdiction. 607
be one dollar a day for attendance, and such other sum as he may have 1852, 314, §5.
to pay, not exceeding two dollars a day, for the use of rooms in which
to hold the court, to be allowed by the justice.
Sect. 22. The fees of the jurors and of the officer who summons jurors' fcce.
the jury and attends on the court, including the charge for rooms, shall i>*52>3ii>§8-
be certified by the justice or his clerk, and paid by the county treas-
urer.
Sect. 23. When by reason of challenge or otherwise a sufficient Deficiency in
number of juror.s cannot be obtained for the trial of a cause, the justice ".""^uppHl"^'
shall cause jurors to complete the panel to be returned by the sheritf or it-sj, an, § 6. '
constal)le from the by-standers, or from the city or town.
Sect. 24. The provision of chapter one hundred and thirty-two, so riiapter i.32 ap-
far as applicable, shall extend to jurors and trials before justices of the Si'Isn, §7.
peace.
Sect. 25. A party aggrieved by the judgment of a justice of the Appeal aiiDwed
peace in a civil action, except upon the verdict of a jury, may within J.J'.JJ.t'; *"p*''""^
twenty-four hours after the entry of the judgment apjieal therefrom to jii'^^j?-
the superior court, then next to be held in the county; in which case is>,'!i.'i%.
no execution shall issue on the judgment appealed from, and the case ] | j*' J''j,''go
shall be entered, tried, and determined, in the court ajtpealed to, in like 1 <;niy, noijooa.
manner as if it had been originally commenced there. -M.ray, oso.
Sect. 26. The appellant shall before the allowance of his appeal Appellant to
recognize with sufficient surety or sureties to the adverse jiarty, if h" s°''^^'5 14.
required by him, in a reasonable sum with condition to prosecute his see Ch.'i37, § 9.
appeal with effect, and to pay all such costs as may arise after the
appeal.
Sect. 27. The appellant shall produce at the court appealed to a to produce
copy of the record, and of all the papers filed in the case, excejit that UJlimer ju'd''"'^
when depositions or other written evidence or documents are so filed the n,"'"* atfinned.
originals shall be produced in the court appealed to instead of copies ; iVcush! m'
and if the appellant fails to produce such copies or papers, or to enter SeeCh. 114,515
and prosecute his appeal, the court may on the complaint of the adverse
party affirm the former judgment or render such other judgment as law
and justice may require.
Sec T. 28. Any case so appealed may be tried at tlie court appealed Pleadings on
to upon the issue joined before the justice, or the court may order the 'k.'s."s5, § 12.
defendant to plead in the usual manner, and the case shall then be tried
ujjon such issue as shall be joined therein.
Sect. 29. When a justice of the peace dies while a judgment ren- I'mroeiiing-s on
dered by him remains unsatisfied, any other justice in the same county 'Jkl'itii of juste.
may upon the a])plication of the creditor cause the record of the judg- K-S. 85, §19.
ment to be brought before him, and sh„ll thereupon transcribe the same
upon his own book of records and deliver the original to the person who
produced it, noting on the original that he has so transcribed it.
Sect. 30. The justice applied to in such case shall when necessary Same subject.
issue a summons to the executor or adiuinLstrator of the deceased jus- ks-8o, §20.
tice, or to any other person supposed to have the custody of the reeoids,
requiring him to produce the same or to submit to an examination on
oath as to the place where they may be found ; and the justice may
commit such person asfor contenijit until he submits to such examination
if required and produces the record if within his custody or control.
Sect. 81. After the record has been so transcribcil by the justice, he Execution, how
may issue execution on the judgment as if it had been rendered by u^s.'^'tsl'ja™"'
himself, changing the form as the circumstances require; and any co])y
of the record certified by hun shall have the same effect as au authenti-
cated copy of the original.
608 JUSTICES OF THE PEACE — CRIMINAL JCKI3DICTI0N. [ClIAP. 120.
JUEISDICTIOX, &C., IN CrajnXAL MATTERS.
General pow- Sect. 32. Justices of the peace niny, as conservators of the peace,
K^s 85 §27. "pon view of any affray, riot, assault, or battery, witiiiu their respective
K.s.sr,'§§j,33. counties, without any warrant in writino;, command the assistance of
ills' tlsil"'. every sheriff, deputy-sheriff, and constahle, and of all other persons
8 CuRh. 210. present, for suppressing the same, and for arresting all who are concerned
4 Gray,' 83. therein as provided in chapters [one hundred and] sixty-nine and [one
See Ch. 116, § 17. hundred and] seventy; and they may issue warrants against ])ersons
charged with criminal offences. Persons so arrested shall be brought,
and warrants so issued shall be returnable, before some police court or
trial justice for examination, and no fees shall be allowed to the justice
issuing such warrants.
TRI.\X JUSTICES.
Justices com- Sect. 33. The justices of the peace designated and commissioned
™imin!ifcnses^^ Under chapter one hundred and thirty-eight of the statutes of eighteen
isos, rw, § 1. hundred and fifty-eight, shall continue to hold their offices and powers
1859, 19.3. according to the tenor of their several commissions ; and the governor
with the advice and consent of the council shall from time to time
designate and commission in the several counties a suitable number of
justices of the peace as trial justices,
number of. Sect. 34. Such trial justices shall be distributed as the convenience
1858, 138, §2. Qf j]jg several counties requires, and the number in commission shall not
exceed, in Barnstable, nine ; Berkshire, twelve ; Bristol, thirteen ; Dukes
County, two ; Essex, nineteen ; Franklin, ten ; Hampden, ten ; Hamp-
shire, eight; Middlesex, thirty; Nantucket, two; Norfolk, seventeen;
Plymouth, fitleen ; Sutiblk, one; Worcester twenty-six.
authority of,to Sect. 3.5. If a trial justice changes his domicil, his authority and
of'domici'i'*''"*'''' jurisdiction as such justice shall thereujion cease, and another trial jus-
1858, 13S, §2- tice may Ije designated and a])])ointed in his place,
jurisdiction of. Sect. 36. Trial justices shall have and exercise within their respec-
185S, 13S, § 1. j^j^.g counties, all the powers, authority, and jurisdiction, in criminal
cases hereinafter set forth ; and when any criminal jurisdiction is given
to justices of the peace it shall be construed to mean trial justices ; and
justices of the peace not commissioned as trial justices shall have no
power, authority, or jurisdiction, in criminal cases, except as conservators
of the peace and to receive complaints and issue warrants.
.Same suhject. Sect. 37. Trial justices shall have jurisdiction of all offences which
1858, 45, §2. may be subject to the penalties of either a fine or forfeiture not exceed-
ing fitly dollars, or imprisonment in the jail or house of correction not
exceeding six months, or both of said penalties.
Jurisdiction of Sect. 38. They may punish by fine not exceeding ten dollars, or
breaciR-soitiio imjirisoiiment in the jail or house of correction not exceeding ninety
ii.'s.'sj, §24. days, all assaults and battei'ies, and other breaches of the peace, when
^f'ii'.x^'^ix^ the offence is not of a high and aggra\-ated natui-c, and cause to be
11 Met. .140. Stayed and arrested all aflVayers, riotei's, disturbers and breakers of the
11 Cusil! 2;i2! peace, and all who go armed offensively to the terror of the jieople, and
See Cb. ir4, § 2. gneh as utter menaces or threatening speeches, or are otherwise danger-
ous and disorderly persons,
to bind oTcr Sect. 39. Persons arrested for any of sai<l offences shall be exam-
porior'TOurt.'*'' '^nei\ by the justice, before whom they are brought, and may be tried
K. .s. .s5,§25. before him, and if found guilty, may be reijuired to find sureties of the
2Me't.'iii. ' peace, and be punished by fine as before provided; oi-, when the offence
is of a high and aggravated nature, they may be committed oi- bound
over for tiial before the superior court, as provided in chapters one
hundred and sixty-nine, and one Inindred and seventy.
R'l'^^Pi'n' Sect. 40. They shall have jui-isdiction of offences against city and
is49,'2ii, §r.' town orders and by-laws; of offences mentioned in section thirty of
Chap. 120.] justices op the peace — trial justices. 609
chapter eighty-six; of offences for keeping billianl tahles or bowling i.'^ss, 209.
alleys contrary to the provisions of section seventy of chapter eighty- j^-'''> ^'s, §§ is,
eight; of violations of the laws relating to the public health ; and of J^^r, iw, §§ 1,2.
ofiences against pro]ierty in cemeteries ; Init no single penalty imposed 5 Gravi m. '
for the last named oflences shall exceed fifty dollai's. |™ ^s'i~vi
Sect. 41. They shall have jurisdiction concurrent with the superior ChiTaa, §13.
court,
First. Of larcenies mentioned in section eighteen of chapter one of larcenies,
hundred and sixty-one, ■^^■hen the money or otlier property stolen is not ion "OT(is7&c'.?
alleared to exceed the value of fifteen dollars, and of all other larcenies obtmnin"; prop-
when the value of the projaerty stolen is not alleged to exceed the value pretences, trick,
of five dollars : ^^'g jjg 55 jg
Second. Of offences of buying, receiving, or aiding in the conceal- 23.
ment of, stolen goods or other property, where they would have juris- Issr] t«^ ^^ *' ^'
diction of a larceny of the same goods or property : «*^"ol'' T??"
Third. Of offences of obtaining property by any false pretence, or §§ in-is, ui.'as-
by any privy or false token; or by the game of three-card monte, or »". <'i-i5, 54-57.
any other game, device, sleight of hand, ]iretcnsions to fortune-telling,
trick, or other means, by the use of cards or other iin]ileinents or in-
struments, where they would have jurisdiction of a larceny of the same
property :
In all which eases the punishment for a first offence shall be by a Punishment,
fine not exceeding fifteen dollars or imprisonment in the jail not exceed-
ing six months; and u])on a second conviction of the like offence, com-
mitted after a former conviction before a jiolice court or a justice of the
peace, the punishment shall be by fine not exceeding twenty dollars or
imprisonment in the jail not exceeding one year: jn-ocided, that if the Kestitutmn.
party convicted of buying, receiving, or aiding in the concealment of,
such stolen goods or pro])erty, makes satisfaction to the person injured to
the full value of the property stolen and not restored, the jjunishment
of the offence m.ay be mitigated as justice may require.
Sect. 42. They shall have jurisdiction concurrent with the sujierior Concurrent
court of all the offences mentioned in sections eighty-two, eiglity-tlirce, c'.r'taii'M'^s"
and eitrhtv-five, of chaiiter one hundred and sixtv-one, when the value J^-.'TJ'-''',,*;'^-
of the trees, fruit, flower, or other projierty, injured, destroyed, taken,
or carried away, or the injury occasioned by the trespass, is not alleged
to exceed the sum of fifteen dollars; and in any such case the punish-
ment shall be by imprisonment in the county jail not exceeding tliirty
days or fine not exceeding fifteen dollars.
Sect. 43. They shall liave jurisdiction concurrent with the superior Same subject,
court of offences under section forty-eight of chapter one humlrod and 1*-'''' 5''' s 2.
sixty-one ; but they shall not impose a fine exceeding ten dollars for any
such offence.
Sect. 44. They may in their discretion t.ake jurisdiction and jiunish .Turisdiction of
by fine not exceeding twenty dollars, or imprisonment in the jail or blJiuih',y', &c"
house of correction not exceeding one year, larcenies from a building, iwuiso, §4.
ship, or vessel, under section fifteen of chapter one luindred and sixty-
one, where the money or property stolen does not exceed in value ten
dollars.
Sect. 4.5. They shall cause to be arrested all persons found within to arrest, bmd
their counties charged Avit h any offences, and persons who after commit- fciouies'J'misdit-
ting any offence within the county escape out of the same ; examine meanors, &c.
• n ' • . .RS85§ ''S
into treasons, felonies, high crimes, and misdemeanors; and commit or ' '
bind over for trial those who a]>])ear to be guilty of crimes or offences
not witliin their jurisdiction, and punish those guilty of such ofi'ences
within their jurisdiction.
Sect. 40. Every person convicted before a justice of the peace of Appeal .-iiiowEii.
any oftence whatever, except militia fines exceeding ten dollare exclusive courT'^""
of costs, may appeal from such sentence to the term of the superior e. s. 12, § 112. .
77
GIO
JUSTICES OF THE PEACE — GENERAL PROVISIONS. [ChaP. 120.
R. S. P5, § 28.
1S49, 31.
1S5S, 45, § 3.
isatl, 19(i.
court then next to be held in tlio s.ame county foi- criminal business, as
provided in chapter one hundred and seventy-three.
Justices to
frame, itc, ne-
cessary writfs,
&c.
R. S. 85, § 29.
2 Met. ar2.
11 Cush. 202.
4 Gray, 83.
may f^rant
.^iiuiiiKins in
iriitiitial eases.
K. S. Si, § 39.
may adminis-
ter oatlis, &c.
E. S. 85, § 36.
punish for
contempts.
R. S. 85, § .33.
2 Gray, 123.
to keep rec-
ord.
R. S. So, § 35.
12 Met. 10.
may adjourn
oourts.
U. S. 85, § 32.
not to com-
mence actions
before tUem-
selves.
1851,273.
not to be of
counsel or at-
torney, &c.
R. S. 85, § 31.
« Cush. 332.
10 Cusll. 494.
UCusll. 315.
2 Gray, 120,410.
power of to
continue .after
■commission ex-
pires, .tc.
Jt. S. 85, §22.
when coramis-
:aion expires
imd is renewed.
E. .S. 85, § 23.
J652, 2s:i, § 4.
-to account for
s.\l lines, &c.,
received.
J;. S. 85, § 37.
te make annu-
al returns to
county treasur-
ers of fi-cri uf
Blieriifs, &c.
lSf7,374,§l.
.to secretary of
GENERAL PROVISIONS.
Sect. 47. Justices of the peace may issue all writs, ■warrants, and
processes, necessary or pro])er to carry into effect the powers granted
to them ; and wlien no form is prescribed therefor by statute, tliey shall
frame one in conformity with the principles of law and the usual course
of proceedings in the courts of this state.
Sect. 48. They may grant summons for witnesses in all criminal
cases pending before any court whatever, when requested by the attor-
ney-general or other person acting in the case in belialf of the st.ate, and
also when requested by the party prosecuted : provided, that in the lat-
ter case it shall be expressed in the summons that it is granted at the
request of the party prosecuted, and the witness shall not be required to
attend unless upon payment or tender of his legal fees.
Sect. 49. They may administer oatlis or affirmations in all cases in
which an oath is required, unless a different provision is expressly made
by law. ,
Sect. 50. They may punish such disorderly conduct as interrupts
any jmlicial proceedings before them, or is a contempt of their authority
or ]ierson, by fine not exceeding ten dollars, or by imprisonment in the
common jail of the county not exceeding fifteen days.
Sect. 51. They shall keep a record of all their judicial proceedings,
both in civil and criminal cases.
2 Gray, 117. 3 Gray, 574. 4 Gray, 29.
Sect. 52. They may adjourn their courts in all cases, civil or crimi-
nal, on trial befoi'e them, to any other time or place as occasion may
require.
Sect. 53. They shall not commence or be concerned in the institu-
tion of civil actions retuiTiable before themselves.
Sect. 54. They shall not be retained or emjiloyed as counsel or attor-
ney before any court, upon appeal or otherwise, in any suit or action
previously determined before themselves ; nor shall they try any civil
action commenced by themselves or by their order or direction ; and
every civil action so commenced shall be dismissed with costs for the
defendant.
Sect. 55. When the commission of a justice of the peace expires
while a judgment rendered by him remains unsatisfied, he .shall never-
theless be authorized to issue execution thereon with the same effect as
if his commission had continued in force.
Sect. 56. When a justice of the peace is commissioned andqu.alificd
anew at or before the expiration of his former commission, his authority
shall be considered as h.aving continued without interruption; and all
business commenced by or before liim under the former commission may
be prosecuted and completed in the same manner as if that commission
had continued in force.
Sect. 57. Justices of the peace shall twice in every year account
with the treasurers of their respective counties and towns, for all fines,
forfeitures, and costs, received upon convictions or other proceedings
before tlieni, and shall pay over to said treasurers respectively all
moneys due and paj'able to them on such account.
Sect. 58. They shall annuallv on tlie first day of January return to
the county treasurers of their respective counties, with a schedule there-
of, all fees of sheriffs, deputy shcrifts, constables and witnes.scs, taxed
and allowed three years previously thereto, and then remaining in tlieir
hands.
Sect. 59. Justices of the peace before whom criminal causes have
Chap. 121.] clerks, attorneys, and other officers of judicial courts. Gil
been commenced or ex.aminecl previously to the first daj' of October in
any ye.ir, shall on or before the fifteenth day of said month return to
the secretary of tlie commonwealth, under oath, a true statement of all
such causes, setting forth therein tlie date of such examinations, the
names of the parties jirosecuted, the crimes, offences, or misdemeanors,
for which the prosecutions were had, the results thereot^ the judgment
of the court thereon, the amount of the bill of costs in each case, and
how the same was paid.
Sect. 60. Any officer neglecting to make the returns required of
him by the preceding section, shall forfeit two hundred dollars.
Sect. 61. The secretary of the commonwealth shall annually in Sep-
tember furnish to justices of the ])eace and police courts, blank forms
for returns under the two preceding sections, with said sections printed
thereon. Ujaon the iecei]it of such returns the secretary shall transmit
the same to the auditor, who shall examine and report upon them to the
general court.
Sect. 62. Nothing in this chapter shall control the regulations con-
cerning any pohce court whereby a diflerent provision is made for the
exercise of any of the powers of justices of the peace.
state, of crimes,
costs, &c.
1852, 2S9, § 1.
1K5-, 40.
1.S5S, W.
1(S58, 155, § 1.
See Ch. 14, §§ 9-
14. Ch. 170, §3.
Penalty on jus-
tices for neglect.
1852, 289, § 3.
Secretary to fur-
nish forms, &c.
1N32, 2S9, §4.
I85S, 155, § 2.
This chapter
not to affect
police courts,
K. S. 85, HO.
1S19, i:i?,'§l.
CHAPTER 121.
OF CLERKS, ATTORNEYS, AND OTHER OFFICERS OF JUDICIAL COURTS.
clerks of the courts.
Section
1. Clerk of S. J. C. for commonwealth. Ap-
pointment, &c.
2. Assistant clerk.
.3, 4. Clerk, duties of.
5. Clerk to account for fees, &c.
6. Clerks, &c., to be clerks of county commis-
sioners.
7. vacancies in office of, how filled.
8. Assistant clerks, tenure of office of. Va-
cancies, how filled.
9. If clerks are unable to perform duties,
clerks pro tempore may be appointed. Rec-
ord to be made.
10. not present at terms, court may appoint
clerk pi'o tempore.
11. Clerks to be sworn.
12. toj^ive bonds.
13. general duties of.
14. to make alphabetical list of names of par-
ties.
15. to exhibit records to S. J. C. at every
term thereof.
16. justices to inspect records of, &c.
17. forfeiture of bond of. Proceeding's.
18. Sum so recovered, how applied.
19. But this not to exempt clerks from other
suits.
20. Assistant clerks, duties of.
21. to pay fees to clerk or other officer ac-
cording to law.
22. Clerks to account under oath for all fees,
except, &c.
23. to retain salary, and one half of excess of
fees.
24. salaries of, in the several counties.
25. When clerk may retain all fees.
26. Salaries of assistant clerks.
Section
27. Salaries of clerks i?ro if mpore.
attorneys at law.
28. Attorneys at law, how admitted to practice.
29. Same subject.
30. to be sworn, &c.
31. oath of office of.
32. No distinction of counsellors, attorneys,
&c.
33. Attorneys, &c., from other states.
34. Attorneys may be removed for malprac-
tice, &c. Expenses thereof, how paid.
35. Parties may manag-e their o^vn suits.
36. Any person specially authorized may man-
age suit, &c.
37. Attorney to have lien for fees, &c.
38. penalty on, for not paying over to client.
39. not to act in suit previously decided by
him.
40. Sheriffs, »tc., not to act as attorneys. Pen-
alty.
MASTERS IN CHANCERY.
41. Masters in chancery. Tenure of office, &c.
42. duties of.
43. fees of.
44. when court may appoint.
45. to finish proceedings, if commission ex-
pires.
AUDITORS.
46. Auditors, when appointed, &c.
47. to give notice to parties.
48. report of majority of, valid.
49. court may discharge, &c.
50. compensation of.
REPORTER.
51. Reporter, appointment of, «frc.
5ii. to make and publish reports annaaUy.
612
CLERKS OF THE COURTS.
[Chap. 121.
Section
5;J. lleporter, how to report ca^'es.
54. when court to give statement of decision
to.
Section
55. Reporter, if absent, deputy to be appointed.
50. compeusation of.
rierknfS..T. C.
fur cominon-
vviiilth. Ap-
pointment, &c.
1K09, lU(i, § 40.
Assistant cleric.
1859, I'jn, §40.
Cleric, duties of.
1S59, 190, § 42.
same subject.
1859, 190, § 43.
CLERKS OF THE COUETS.
Section 1. The clerk of the .supreme judicial court for the com-
ninmvenlth sli:ill be a]ipointed by the court, and hold his office for five
yenrs, unless sooner removed. The clerk of the court for the county
of Suffolk shall act as such clerk until one is apjiointed and qualified.
Sect. 2. An assistant clerk of the court may be appointed by the
court for the commonwealth, to hold his <jffice for three years from the
first day of January next after his ajijiointmenl, unless .sooner removed
by the court.
Sect. 3. The clerk sh.all attend all sessions of the court, preserve
all the files and paj)ers thereof, kec]) a docket record of all questions
transferred, and all petitions, complaints, or other process presented to
the court, entering thereon the name of the parties in full and the name
of the counsel a]5pearing in behalf of either party, with a brief descrip-
tion of the kind of action or proceeding. He shall record thereon
accurate minutes of all orders, decrees, or directions of the court in
each case, transmit forthwith to the clerks of courts in the several
counties all rescripts made or ordered by the court, together with the
papers belonging to the supreme and superior court in each case, and
receive and keep safely all papers transmitted to him by the clerks of
the courts.
Sect. 4. He shall make copies of all papers on file in said court,
and of the docket record thereof when desired, and certify the same
under the seal of the court ; and shall issue such wiits or other jjrocess
as the court directs ; he shall charge the fees provided l)y law for like
services for clerks of courts, and when no express sum is fixed receive
a fiiir compensation for the services required of him in analogy to like
services for which a compensation is fixed by law : promded, that the
fees for entry upon the docket, the record, the transmission of all neces-
sary papers and the rescript in each case, shall not exceed one dollar
and fifty cents in the whole.
Sect. 5. The clerk shall annually before the last "Wednesday of
December, account with and ]iay over to the treasurer of the common-
wealth all fees received by him, and receive from the treasurer an
annual salary of three thousand dollars.
■ Clerks of Sect. 6. The clerks and assistant clerks of the courts of the several
county commis- countics shall be clerks of the county commissioners,
iss?""' Sect. 7. If a vacancy occurs in the office of clerk of the courts in
isodj li. any county, or of the clerk of the supreme judicial court in the county
™-an"/i™offloe of "SuflTolk, the justices of said court, or a majority of them, may appoint
of,_iiow liiied. a clerk, who shall hold the office until the next annual election, or until
isdO, 1,3, §9. another is elected or ajipointed in his stead. Upon a vacancy in the
county of Suffolk in the office of a clerk of the superior court, the
justices of that court shall in like manner appoint a clerk for a simi-
lar term.
Assistant Sect. 8. The assistant clerks of the courts in the counties of Mid-
eierks, tenure of dlesex and Worcester, of the supreme judicial and superior courts in
w.'imh.s, how the county of Suffolk, shall continue to hold their offices according to
the tenor of their ros])cctive appointments. As vacancies occur, the
justices of the supreme judicial court, or a majority of them, shall
appoint an assistant clerk for the counties of Suffi)lk, Middlesex, and
Worcester respectively, who shall hold their offices for the term of
three years, subject to" removal by the court. Upon the occurreiice of
a vacancy in the office of assistant clerk of the su|ierior court in the
county of Suffolk, the justices of said court shall in like manner apooint
an assistant clerk.
to ac"'
fees, & ■
1859, I'.i
SceCli.
■nit for
5 43.
filled.
l,s.Vi, ■>:!fl.
1.S5 1 , .IS.
1855, 449, § 2.
1850, 3?, § 1.
1859, 190, § 9.
13 Gray, 74.
Chap. 121.] clerks of the courts. 613
Sect. 9. If, by re.ison of sickness or other cause, the clerk of the if clerks areun-
coiirts in any county or of the supreme juilieial court is unable to dis- d,',t k'" d"ks""
charge the duties of his office, and there is no assistant clerk or he is pro tr'm,,ure
also unable, the justices of the supreme judicial court, or a majority of "V!' i{.-cOTd'to
them, may ap])oint a clerk pro tempore, who shall ]ierforni the duties of ^'ik'^i'-K' ssi
the office until the clerk or assistant clerk resumes his duties. The is5<j| ili(i!§'9.'
justices of the su)X'rior court may in like manner ajijjoint a clerk pro
tempore, when the clerk and assistant clerk of that court in the county
of Suffolk cannot perform the duties of tlie office. When, after any
such temporary appointment, the clerk or assistant clerk resumes his
duties, he shall make a record of that fact, with the date, under his
signature, in the then latest book of records in each of the courts.
Sect. 10. If at a term of any court neither the clerk nor assistant not present f.t
clerk is present, the court may apiioint a clerk pro tempore, who shall ••''"""'' ''°'."''
perform the duties of the otnce dunug the term or untu the clerk or ckik /i™ ^em-
assistant clerk resumes his duties ; unless an appointment under some Hi's; si, § h.
one of the preceding sections or an election pursuant to law is sooner i'- ^- '**> § '3.
made.
Sect. 11. The clerk, assistant clerk, and clerk /)ro tempore of a rierkstobe
court shall be sworn before a iudge thereof %T'"I";, c„
•^ o K. S. s(i, § S.
1S51,3S, §1. 1S5!,15,S, §2. ISoo, ■H9, §2. 1856, 37, § 1. ISjrt, 173. 1S59, 190, §§ 40, 41. R. S. S», §§4, !■!.
Sect. 12. The clerk and assistant clerk of the supreme judici.il "^"'2*'.§i-
court for the commonwealth shall give bond, a|)proved by the court, R.sftw^sf"'
with sufficient surety or sureties in the sum of two thousand dollars, to J^ii'.lvf s'l
the treasurer of the commonwealth, with a condition for the faithful is.')i!.>i,'§ i.'
performance of the duties of their respective offices, before entering ISi'i; .^?^§^(''
ujion the' same. The clerks and assistant clerks shall give bond in is59; lin';, §41.
like manner to the treasurers of their respective counties, in a sum not
less than five hundred nor more than two thousand dollars, to be
determined by the court; and the clerks p>ro tempore ajipointed under
section nine shall give bond in like manner, if required by the court.
Sect. 13. The clerks shall attend all the courts of which they .are general dutku
clerks when held in their respective counties, and the sessions of the "*^
county commissioners, and record their proceedings; and shall have Sce'§§*o,'!u%i.
the care and custody of all the records, books, and paj)ers apjjertaining
to and filed or deposited in their respective offices.
Sect. 14. They shall keep in every book of records an alph.abetical to m.ike ni-
list of the names of all the ])arties to any suit or judgment therein S'l'iam^ifpar-
recorded, with a reference to the page where it is recorded ; and when <i'x-,
there are several persons, cither plaintiffs or defendants, the name of ^'- *>■**■§ "•
every person, with a like reference, shall be inserted in its approju-iate
place in the alphabetical list.
Sect. 15. At every term of the supreme judicial court, the clerk to exhibit
shall exhibit the then latest book of records of each of the courts in r,''''""''; *" ^- J-
the county, and such others as are required, so that the court m"y have tiiereof.'^'^^ ''™
notice of any errors or defects in the keeping of the records, and cause ^' ^' ***' ^ ''■
the same to be corrected as occasion requires.
Sect. 16. The justices of the several courts sh.all inspect the doings justices to in-
of the clerks from time to time, and see that the records are made up or&c"^°°"'*
seasonably and kept in good order; and if the records are left ineom- e.'s.ss, §8.
plete for more than six months at any one time, such neglect* imless
caused by sickness or other extraordinary casualty, shall be adjudged
a forfeiture of the clerk's bond.
Sect. 17. In case of any neglect causing a forfeiture of the clerk's Forfeiture of
or assistant clerk's bond, the justices shall forthwith give notice thereof p"."ee"!iin<r
in writing to the treasurer having custody of the bond, who shall there- k. s. s>, §9.'
upon cause the bond to be put in suit.
Sect. 18. The sum reco\ered in such suit shall be applied to Sum so rccov-
making up the deficient records under the direction of the court' in piie'ci.''''^'^ "^
52
614
CLERKS OF THE COURTS.
[Chap. 121.
R. S. 88, § 10.
But this not
to exempt
clerks from oth-
er Buita.
K. S. S8, § 12.
Assistant
cl'Tks' duties.
1850, 230, § 2.
1S51,3S, §2.
185l>, 37, § 2.
to pay fees to
clerk or other
officer.
ISOU, 236, § 2.
1S5I,38, §2.
185(j, 37, § 2.
Clerks to ac-
count, under
oatli.tor all fees,
e.xcept, &c.
K. S. S.8, § 15.
1859, lai).
to retain sala-
ry, and one lialf
of excess of
fees.
K. S. 88, § 10.
1859, 190.
salaries of.
K. S. 88, § 17.
lt>57, 272.
1859, 196.
When clerk
may retain all
fees.
K. S. 88, § 18.
Salaries of as-
sistant clerks.
1852, 207.
1854,215.
1850, 37, § 1.
1859, 190, § 40.
of clerks /jro
tempore.
K. S. 88, § 14.
whose records the deficiency li.ajipens, and tlie suq)lus, if any, shall be
carried into his account as treasurer of the county or commonwealth.
Sect. 19. Nothing contained in the preceding sections shall be
construed to exempt the clerlis from a suit for any otlier breach of the
condition of their bonds, or from their liability in any other way or to
any party for neglect or misconduct in their otflces.
Sect. 20. The assistant clerks may perform such of the duties of the
clerk as are not performed by him.
Sect. 21. Each assistant clerk shall perform his duties under the
direction of the clerk, and pay over to him all fees and sums received
as such assistant. Upon the absence, resignation, death, or removal of
the clerk, the assistant clerk shall perform his duties, under the direc-
tion of the court, until a clerk is elected or appointed and qualified. In
case of the death, removal, or resignation of the clerk, the assistant clerk
shall account with and pay over the money in his hands to the officer
with whom the clerk is by law required to account.
Sect. 22. The clerks of the courts in the several counties and of the
su2:)reme judicial and superior courts in the county of Suflblk, shall keep
an account of all fees received by them for their official acts and ser-
vices, except fees for co])ies they are not required by law to furnish;
and shall on the first Wednesday of January in every year render to
the treasurer of the county their account on oath of all fees so received
within the year then past.
Sect. 23. Each clerk of the courts in the se^'eraI counties, and of
the supreme judicial court and sui^erior court in the county of Suffolk,
shall retain the sum liereinafter provided for his annual salary; ami also
one-half of any excess of that sum, fur his own use, and pay the residue
to the treasurer for the use of the county ; and at the same rate for any
part of a jear.
Sect. 24. The sums which the clerks in the several counties may
retain for their annual salaries, shall be as follows, to wit : —
The clerk in the county of Barnstable, one thousand dollars : Berk-
shire, fourteen hundred dollars : Bristol, sixteen hundred dollars : Dukes
County, two hundred and fifty dollars: Essex, two thousand dollars:
Franklin, twelve liundred dollars: Hampden, eighteen hundred dollars:
Hamp.shire, twelve hundred dollars: Middlesex, two thousand dollars:
Nantucket, four hundred dollars : Norfolk, fifteen hundred dollars :
Plymouth, fourteen hundred dollars : Worcester, two thousand dollars :
Suffolk, the clerk of supreme judicial court and superior court for civil
business, three thousand dollars each ; and of the superior court for
criminal business, two thousand dollars.
Sect. 25. If the fees received by the several clerks do not amount
to the salary above jirovided, the clerk shall retain what is received in
full for his services for the year.
Sect. 26. The assistant clerks sh.all receive annual salaries, as fol-
lows : —
Of the supreme judicial court for the commonwealth, fifteen hundred
dollars, to be paid by the commonwealth :
In the county of Suflblk, of the supreme judicial court, fifteen hun-
dred dollars : of the superior court, for civil business, eighteen hundred
dollars :'
In the county of Middlesex, twelve hundred dollars: and
In the county of Worcester, sixteen hundred dollars; to be paid
quarterly by each county res]iectively.
Sect. 27. The several clerks jrro tempore shall receive for their ser-
\'ice8 such compensation as the court appointing them may determine,
to be paid by the clerk or from the county treasury, as the court shall
direct.
Chap. 121.] attorneys at law. 615
ATTOEJTETS AT LAW.
Sect. 28. A citizen of this state, or an alien who has made the pri- Attorneys at
mary deehiration of liis intention to become a citizen of the United ud to'prycti™!
States, and who is an inhabitant of this state, of the age of twentv-one i'- ■''■ i^- § i'-'-
^ * ]So2, 1;)4.
years and of good moral character, who lias devoted three years to the li-sii! m
studj' of the law in the office of some attorney within this state, shall, l^^lf\^^'
on application to the supreme judicial court, or sujierior court, be ad- •
raitted to practice as an attorney in any coint of this state, on complying
with the other requisitions contained in this chapter.
Sect. 29. Any person having the other qualifications required in the same sutiject.
preceding section, although he has not studied the term therein pre- lisf.'i'Si.^"'''
scribed, may, on the recommendation of an attorney, ])etition the su-
preme judicial court, or superior court, to be examined for admission as
an attorney, whereupon the court shall assign a time and ])lace for the
examination, and if satisfied with his acquirements and qualifications he
shall be admitted as if he had studied three full years.
Sect. 30. Whoever is admitted as an attorney shall in open court '<> be sworn,
take and subscribe the oaths to support the constitution of the United AiiMud. const.
States, and of this commonwealth, and the oath of office. 1^8' ss 6 2i
Sect. 31. The oath of office is as follows: —
You solemnly swear that you will do no falsehood, nor consent to the doing of any oath of office
in court ; you will not wittingly or willingly promote or sue any false, groundless, or "f-
unlawful suit, nor give aid or consent to the same ; you will delay no man for lucre j> g '^' 1 22
or malice ; but you will conduct yourself in the office of an attorney within the courts,
according to the best of your knowledge and discretion, and with all good fidelity as
well to the courts as your eUeuts. So help you, God.
Sect. 32. A person admitted in any court may practise in every xo tiistincHon
other court in the state ; and there shall be no distinction of counsellors aud^altorne"/!
and attorneys. Ac.
Sect. 33. A person admitted an attorney or counsellor of the hiLrh- i'- '^^ ***^' § 23.
. . T . , . /> , , ,. 1 • , 1 • , 1 • '- 1 Attorneys, &c.,
est judicial court 01 any other state of which he was an inhal)itant, and from other
who afterwards becomes an inhabitant of this state, may be admitted to k^s^ss §24
practice here upon satisfactory evidence of his good moral character and
liis professional qualifications.
Sect. 34. An attorney may be removed by the supreme jndicial Attorneys may
court or superior court for any deceit, malju-actice, or other gross mis- lf/aiI"'ieUce,&c.
conduct, and shall also be liable in damages to the party injured thereb)-, Kxiienses
and to such other punishment as may be provided by law; and the ex- ],Im,'' ' '"'^
penscs and costs of the inquiry and proceedings in any court for the l'';^',^^^ ^^"
removal of an attorney, shall be paid as in criminal prosecutions in the
same courts.
Sect. 35. Parties may manage, prosecute, or defend their own suits i-arties majr
personally, and by such counsel or attorneys as they may engage ; but ™vI,'"^JI"j'i"^''
no more than two persons for each party shall without permission of h. s. ss, § 26.
the court be allowed to manage any case therein.
Sect. 36. Any person of good moral character may manage, prose- Persons special-
cute, or defend a suit if he is specially authorized by the party for whom i>'^'"'"'""2<'d>
he appears, in writing or by personal nomination in open court. k. s. ss, §27.
Sect. 37. An attorney lawfully possessed of an execution, or who Attorney to
has prosecuted a suit to final judgment in favor of his client, shall have fcles'^il™'"
a lien thereon for the amount of his fees and disbursements in the cause, R. s. ss, §28.
but this shall not jirevent the payment of the execution or judgment to 5jus™309.'
the judgment creditor without notice of the lien. 11 '{ass. aso.
Sect. 38. If an attorney at law unreasonably neglects to pay money 4 Gray, '33s.'
collected by him for and in behalf of a client, when demanded Ijy the penalty on,
client, he shall forfeit and pay to such client five times the laxrful in- o^vertocileitf
terest of the money, from the time of the demand. '*^"> "w. §i-
Sect. 39. No person shall be employed or allowed to ajipear as not to act in
G16
MASTERS IN CHANCERY, AUDITORS, REPORTER. [ChaP. 121.
suit previoiiBly
decided hy liim.
E. S. 89, § 8.
Sheriffs, &c.,
not to act as
attoraoys.
I'eniilty.
li. S.ss, §§29,
30.
li Pick. ■(«.
10 Pick. 45.
counsel or attorney before a court in a suit previously determined be-
fore himself as a judge, or justice of the peace.
Sect. 40. A sherilf, dejiuty-sherifij coroner, or constable shall not
appear in a court nor before a justice of the peace as attorney or coun-
sel for or in behalf of a jiarty in a suit, nor shall he draw, make, fill up,
or alter, a writ, declaration, plea, or process, for such party. Whoever
so oflends shall forfeit the sum of fifty dollars.
^Mastersinchan-
cery. Tenure
oC office, &c.
K. S. (S«, §§ 31,
■■a. isa, ;63.
1844, 9, 173.
1845, 22.
1848, 277.
duties of.
R. S.88,§33.
fees of.
E. S.88, §34.
wben court
may appoint.
R. S. 8», § 35.
to fininh pro-
ceediuj^s, if"
commisuiou
expires.
1814, 138.
MASTERS IN CHANCERY.
Sect. 41. The masters in chancery now in office shall hold their
respective offices according to the tenor of their commissions. As
vacancies occur, the governor, with the advice and consent of council,
shall make aj)]ioiiitnients, so that there shall be not more than five in
any county. They shall be .sworn, and shall hold their offices for the
term of five years, unless sooner removed by the governor and council.
Sect. 42. They shall, under the direction of the supreme judicial
court, jierform the duties apjieitaining to the office according to the
practice in equity, and shall be allowed therefor such fees as the court
shall order.
Sect. 43. Tlieir fees shall be taxed with the other costs, and paid
by such party or in such manner as the court orders.
Sect. 44. If the masters appointed in any county are of counsel or
interested in the suit, or otherwise disqualified or unable to act tlierein,
the court u[)on ordering a reference of any matter in such suit shall
ap)ioint some jierson to act as master.
Sect. 45. Proceedings and processes commenced under the direc-
tion of a master in chancery before the termination of his commission,
shall be ])roeeeded in to their termination by liim in the same manner
and with the same eiiect as if his commission remained in force.
Auditors, when
appointed, &c.
R. S. 96, §§ 25,
.30.
185r>, 202, § 1.
0 Pick. 193.
11 Pick. .3.59.
1 Met. 2 Hi.
1 1 Met. -AIT.
1 Gush. 293.
7 Cush. 137, 148,
445.
to give notice
to parties.
R. S. 96, § 26.
report of ma-
jority of, valid.
K. S. 96, § 27.
court may
discharge, &c.
R. S. 96, §29.
4 Pick. 2s:j.
compensation
of.
R. S. 96, § 31.
Reporter, ap-
pointment of,
&c.
It. S. 88, §§ 3C,
37.
ATIDITORS.
Sect. 4G. When a cause is at issue in any court, whether the form
of the action be contract, tort, or replevin, tlie court may in their dis-
cretion ajipoint one or more auditors to hear the parties, examine their
vouchers and evidence, state accounts, and re|)ort iqion such matters
therein as may be ordered by the court; and the rejiort shall he prima
facAe evidence upon such matters only as are exjnessly embraced in the
order.
9 Cush. 329. 2 Gray, 517. 13 Gray, 150.
Sect. 47. The auditors shall give notice to the parties of the time
and place appointed for then- meetiug, and may adjourn from time to
time as may be necessary.
Sect. 48. If there is more than one auditor, all shall meet and hear
the cause, but a report by a majority shall be valid.
Sect. 49. The court may for cause discharge the auditors and ap-
point others, and may recommit the re])ort for revision or further exam-
ination to the same or to other auditors.
Sect. 50. The court shall award reasonable compensation to au-
ditors, to be paid by the plaintiff and taxed in his bill of costs if he
prevails.
eeportee.
Sect. 51. The reporter of the decisions of the supreme judicial
conrt shall be sworn to the faithful jierformance of his duties, and shall
hold his office according to tlie tenor of his commission. Whenever a
vacancy occurs, a reporter shall be a])pointed by the governor, liy and
with the advice and consent of the council, to be removed at their
pleasure.
Chap. 122.] special provisions respecting courts, &c.
617
Sect. 52. He shall attend the court personally at all the law tenns Keportor to
and cajiital trials, make true reports of decisions on all legal questions l'isl^r,!)"o|.£"'^
argueil by counsel, and publish the same annually. The reports of the aimuaiiy.
decisions upon all questions of law argued and determined before the 'is3.s,'iw.^'^^'
first day of September in each year shall be published within ninety See ch. 112, §12.
days thereafter.
Skct. 53. He shall at his discretion report the several cases more how to report
or less at large according to their relative importance, so as not un- i4.*'s'!'sg, § .to.
necessarily to increase the size or number of the volumes of reports.
Sect. 54. When in any of the cases mentioned in the two precpJ- when court to
ing sections judgment shall be entered at any other than a law tenn, f"d'l.Sion to"!*
the court shall communicate to the reporter a statement in writing of K- s. ««,§ 10.
their decision or opinion.
Sect. 55. If the reporter is necessarily prevented from attending at if absent, dep-
a term, he shall depute some suitable person to attend for him and take p',{„t','.,!""''^"
notes of the decisions; or the court may appoint a person to officiate k. s. ss, § 41.
in his stead until he resumes the perfonnance of his duties, or until
another is apjjointed.
Sect. 56. The reporter shall receive from the treasury of the com- compensation
mon wealth an annual salary of three hundred dollars, and in the same k';s. gg 542.
proportion for any part of a year; which, with the profits arising from is4:i,!>, §1.
the pubhcation of his reports, shall be in full compensation for his '''''^^'»- '^-536.
services.
CHAPTER 122.
SPECIAL PROVISIONS RESPECTING COURTS AND THE ADMINISTRATION
OF JUSTICE.
Section
1. First day of terra, how desig^nated.
2. When justice may change time and place of
court.
3. riiange, liow ordered, Ac.
4. Courts not to be open Sunday, &c., imlesR,
&c.
5. Sheriffs, &c., to serve processes.
6. Attorneys, &c., not to buy, &c., demands
for collection.
Section
7. Penalty.
8. What courts may naturalize.
9. rroceediugs to be in open court, &c.
10. Otiier courts not to receive applications, &c.
11. Penalty.
12. Who to act as criers.
13. Ju<l<?e, &c., not disquali0ed by interest as
iuhabituut of town, &c.
Section 1. In writs, processes, records, and judiei.al proceeding.s, Fir^tdayof
civil and criminal, the day on which any term is to commence may be i.^ia'tw!'.'" ''''"^
designated as the first, second, or other Monday, or other day in the k. s. 82, §44.
week, in the month in which the same happens.
Sect. 2. If by reason of war, pestilence, or other public calamity, it when justice
is uns.'ife or inexpedient to hold a court at the time and place appointed, {Vm^ ai'ii'"i?uce
a iustice of the court mav apiioint another time and place within the oi court,
same count)' lor holding the same.
Sect. 3. Such adjournment shall be made by an order in writing, change, how
signeil by the justice or justices, and served by the person to whom it K'sllii'ts!
is directed by ))ublic proclamation, in the shire town or as near thereto
as is safe, and also by publication in such newspaper or in such other
manner, as required in the writ.
Sect. 4. Courts shall not be opened on Sunday, Thanksgiving, Fast, Court^innttobe
Christmas day, the twenty-second day of February, the fourtli'day of &';™,;'^,";"s7&c
July, or the following day when either of the two days last mentioned U.S. sii, h'.
occurs on Sunday, unless for the jjurjiose of entering or continuing cases, 2'Bay.'232. "
52* 78
618
SRECIAL PROVISIONS RESPECTING COURTS, &c. [ChAP. 122.
13 JIass. 347.
15 Johns. K.
119, 177.
Sheriffs, Ac, to
serve process.
K.S. H,§(Wi8.3,
§11; 84,§3;85,
I 30 ; 18oli, IM,
S S. 1 Gray, 58.
Attorneys, &c.,
not to buy, &c.,
demands Vor
colleetion.
K. .S. «l, §§ 5, 0.
13 Pick. 79.
Penalty.
1£. S. (ill, § 7.
What courts
IHilv naturalize,
liati, -17, § 1.
ISJtS, -H.
Proceedings to
be iu oi>en
court, itc.
1850, 47, § 2.
Other courts
not to receive
applications,
&c.
1S55, 28, § 1.
1851), 47.
5 Gray, 559.
Penalty.
1855, 28, § 2.
Who to act as
criers.
1859, 207.
Judge, Ac, not
disquaiitied by
interest as in-
habitant of
town, &c.
R. S. 90, § 124.
K. S. act of
amend. § 13.
11 Cusll. 411.
10 CuRh. 494.
instructing or discharging a jury, receiving a verdict, or adjourning ; but
this section shall not prevent the exercise of the jurisdiction of any
magistrate in criminal eases to preserve the peace or arrest offenders.
Sect. 5. Sheriffs, deputy-sheriffs, coroners, constables, and other
officers, shall serve all hn\t'ul jtrocesses legally directed to them, issued
by a court, judge, judicial officer, or county comniissioners.
Sect. 6. Counsellors, attorneys, justices of the jieace, sheriffs, deputy-
sheriffs, coroners, or constables, shall not directly or indirectly buy or be
interested in buying, or directly or indirectly loan or advance or agree
to loan or advance any money or other goods, or give or promise any
valuable consideration wliatever to any person, as an inducement to
place or in consideration of having placed in the hands of any person
any bond, note, book debt, or right of action, for collection, with intent
to make themselves any gain from the fees arising from such collection
by a suit at law.
Sect. 7. Whoever commits either of the offences described in the
preceding section shall for each offence forfeit a sum not less than twenty
or exceeding five hundred dollars.
Sect. 8. The supreme judicial and superior courts sliall respectively
have jurisdiction of applications for naturalization.
Sect. 9. Proceedings u])OU such applications shall be had in open
court, recorded and entered upon the docket of the term when the
jirimary declaration is made, and also of the term when the final appli-
cation is made.
Sect. 10. No other court est.ablished by this state shall entertain any
primary or final declaration or ap]ilication made by or in behalf of an
alien to become a citizen of the Uniteil States, receive any registry of
an alien, or entertain jurisdiction of the naturalization of aliens. Nor
sh.all any clerk of such court receive such apjilication or ]iaiiei's.
Sect. 11. If any clerk or other person shall record or file such appli-
cation or declaration, or issue a certificate of naturalization, in violation
of the provisions of the preceding section, he shall be punished by a
fine of ten dollars.
Sect. 12. The clerks or assistant clerks of courts, sheriffs, or their
deputies, as the court directs, shall perform the duties of criers, without
additional compensation. But any officer may adjourn the court by
order thereof
Sect. 13. No person shall be disqualified from acting as judge,
magistrate, appraiser, or officer of any kind, in a suit or ]iroceeding in
which any city or town is interested, by reason of his interest as an
inhabitant thereof And no juror shall be disqualified by reason of
being an inhabitant of the city of Boston.
Chap. 123.] commencement of actions and service of process.
619
TITLE II.
OF ACTIONS AND PROCEEEDINGS THEREIN.
Chapter 123. — Of the Commencement of Actions and Service of Process.
Chai'TER 124. — Of Arrest, Imprisonment, and Discharge.
Ch-^pter 12.5. —Of Bail.
Chapter 126. — Of Proceedings against Absent Defendants, and upon Insufficient
Service.
Chapter 127. — Of Actions which survive, and the Death and Disabilities of
Parties.
Cil\pter 128. — Of Actions by and against Executors and Administrators.
Chapter 129. — Of Pleadings and Practice.
Chapter 130. — Of Set-off and Tender.
Chapter 131. — Of Witnesses and Evidence.
Chapter 132. — Of Juries.
Chapter 133. — Of Judgment and Execution.
CHAPTER 123.
OF THE COMMENCEMENT OF ACTIONS AND SERVICE OF PROCESS
venue of actions.
Section
1. Transitory actions, where to be broujjht.
2. Actions conceruiug^ laud iu different coun-
ties, &c.
3. agJiinet counties, where to be broujjht.
4. by counties.
5. when certain con^orations are parties.
G. by and against city of Boston.
7. if brought in county of Suffolk, may be
removed to another county.
8. where to be brought for recovery of for-
feitures.
FORMS, ISSUING, AND RETURN, OF WRITS.
9. Original writs in civil actions.
10. different kinds.
11. Separate summons, if property attached.
12. When writ and summons may be com-
bined.
13. Writs in actions before justices of the
peace.
14. Forms of writs, &c.
15. to be under control of S. J. C.
16. Proceedings when defendant's name is un-
kno^^Ti.
17. Writs, how issued.
18. Sutipoena in suits in equity, how issued.
19. Writs to be returnable to the next ensuing
term, «tc.
20. by persons out of state to be indorsed,
&c.
SERVICE ON THE DEFENDANT.
Original writs, when to be served.
22. When, if against certain corporations.
Section
23, 24. Summons, how served.
25. if uo personal service is made.
20. on absent defendant if co-defendant in the
state, &c.
27. in real actions against persons out of
state.
28. Defendant in all cases, if out of state, &c.,
to have further notice.
29. Summons, how to be served on certain cor-
porations.
30. how on other corporations.
31. Service in suits in equity.
attachment of PROPERTY — general
PROVISIONS.
32. Property liable to attachment.
33. Successive attaclmieuts on same writ.
34. Proceeds of property attached and sold
may be again attached.
35. Goods replevied from officer, liable to fur-
ther attachment.
3f>. Plaintiff in replevin liable for whole value.
37. Goods may be further attached after death,
Ac, of first attaching officer.
38. Proceedings in such case.
30. Mode of attaching goods replevied.
40. Attachment to continue though attaching
officer dies.
41. of land that is mortgaged.
42. Goods, &c., attached, held for thirty days
after judgment. In Nantucket, &c., for
sixty days in certain cases.
43. Attachment dissolved by judgment for de-
fendant.
620
COMMENCEMENT OF ACTIONS AND SERVICE OF PROCESS. [ChaP. 123.
Section
■H. Juflgment intended in two preceding- sec-
tions.
45. Attachment dissolved by death of defend-
ant, unless, &c.
40. Proceedings in such case.
47. Officer liable only for net proceeds.
48. Creditor liable therefor, if paid over to him.
49. No set-off allowed in such case.
ATTACHMENT OF REAL ESTATE AND LEASE-
HOLD ESTATES.
fin. Attachment, how made.
51. Copy of writ and ofTicor's return to be de-
posited in clerk's ofiioe.
52. Offi vr's duty and fees.
5t. Clerk's duty and fees.
54. When such attachment takes effect.
65. Attachment of real estate fraudulently con-
veyed, &c.
56. Clerk to enter name of persons having legal
title, &c.
ATTACHMENT OF GOODS. &C., WHICH CANNOT
BE REMOVED.
57, 58- Attachment of goods too bulky to be re-
moved.
ATTACHMENT OF SHARES IN CORPORATIONS.
5U, 00. Shares in corporations, how to be at-
tached.
61. Penalty on recording officer for refusal or
false certificate.
ATTACHMENT, &C., OF PERSONAL PROPERTY
MORTGAGED OR PLEDGED.
f»2. Attachment of mortgaged goods.
C3. Mortgagee to stiit<? amount due him, &c. ;
li;ibility of creditor.
PeiKilty for demanding too much.
D<*Iit to be repaid out of proceeds of sales.
Or by mortgagor.
, Personal property mortgaged in debtor's
possession may be af^^ached, aud mortgagee
summoned as trustee.
, Court to ascertain what is justly due, and
creditor to pay same to mortgagee, or at-
tachment void.
Validity of mortgage may be denied by
creditor, and tried by jury.
Creditor to retain amount paid by him, &c.
not recovering judgment, to hold proper-
ty until repaid, &c.
fiS.
C().
67.
68.
60.
70.
71.
SALE, RY CONSENT, OF PERSONAL PROPERTY
ATTACHED.
72. Goods attached may be sold by consent.
PERISHABLE PROPERTY ATTACHED.
73. Property attached if perishable, &c., may
be appraised and sold.
74. Proceedings upon application for appraise-
ment.
Section
75- Notice to defendant when out of the state.
7tt. Appraisers, how appointed.
77. Upon decision of appraisers, goods may be
sold.
78. or delivered to defendant upon his depos-
iting money or giving bond, &c.
79. Bond to be returned with the writ.
80. Action thereon to be brought by creditors.
81. Money recovered to belong to them.
82. to be distributed by court.
83. Prior attachments to be i>rotccted.
84. Creditor not joining in suit on bond, &c.
85. Limitation of action on bond, and of scire
facias on judgment.
86. Creditor may be paid, leaving enough for
prior attachments.
JOINT PERSONAL PROPERTY ATTACHED ON
A WRIT AGAINST PART OWNER.
87. Goods attached may be appraised at request
of part owner not a defendant.
88. and dulivercd to such part owner upon
his giving bond, &c.
89. If such part owner pays, the goods become
pledged.
90. To be restored on dissolution of attach-
ment.
91. Ueturu of officer; and proceedings in suit
upon bond.
ATTACHMENTS DISPUTED BY PERSONS HAV-
ING SUBSEOUENT LIENS, &C.
92. Fraudulent attachments, how defeated.
93. Petition by tlie person objecting thereto.
94. to be supported by affidavit.
95. Prior attachment may be dissolved in case*
&c. Questions of fact to be tried by jury.
96. Proceedings not affected by answer, &c., of
defendant.
97. Grounds of defence in such case.
OS. Damages and costs may be awarded.
99. Petitioner to give security for damages and
costs.
100. Proceedings upon appeal.
101. Decision to bar action for fraud against
prior attaching creditor.
102. To what cases applied.
REDUCTION OF EXCESSIVE ATTACHMENTS.
103. ExccFsive attachments may be reduced on
application to court.
DISSOLUTION OF ATTACHMENTS BY GIVING
BOND.
104. 105. Attachments dissolved by giving bond
with sufficient sureties for payment of
judgment.
106. Fees for approving bonds, &c.
WHEN OFFICER TO ATTACH OR ARREST.
107. Plaintiff may direct the service of writs by
attachment or arrest.
Transitory ac-
tions, wliere to
he brought.
K. S. 90, §§ H,
15.
1854, 322.
1850, 70.
4 Mass. 503.
21 Pick. 257.
3 Met. 209.
Action cflncern
ing land in dif-
VENUE OF ACTIONS.
Sect. 1. Transitory actions, except in cases in which it is otherwise
provided, if any one of the parties Uves in the state, shall he brousflit in
the county where some one of them lives or has his usual pi ice of busi-
ness; and if brought in any other county the writ shall abiite, and the
defendant shall be allowed double costs. If neither party lives in the
state the action may be brought in any county.
0 Cush. 528. 10 Cush. 415. 6 Gray, 122.
Sect. 2. "Where a tract of land lies in different counties, any action
concerning the same may be brought in either county, and the court may
Chap. 123.] forms, issuing, and return, of writs. G21
allow amendments to declarations so as to include the whole tract; this a- rent counties,
provision shall not apply if a county, the city of Boston, or one of the i^^i,, 37.
corporations enumerated in section live, is a ))arty.
Sect. 3. Actions, whether local or transitory, against the inhabitants Actions against
of a county, shall be brought either in the county where the plaintiff i„ hewoufiht.'"
lives or inthe defendant county, or in a county adjoining thereto, at the •'■ ''^ '■>"' S "*•
plaintiff's election.
Sect. 4. Such actions bv the inhabitants of a count v shall be brought by counties.
*■ * T? ^ Oft fi ^ft
in the county in which the defendant lives, or in a county adjoining the ■ ■ -s •
plaintiff' county ; and when the defendant lives in the jilaintiff county
it shall be brought in an adjoining county.
Sect. 5. When a corporation, other than a county or the city of Bos- wiien certain
.i . , , , ,. ,*, .* cnr])oratlou8
ton, IS a party to an action, it may bo Ijrougnt as lollows, to wit: arc parties.
First. When both parties are cities or towns, school districts, or par- {j;^;*ct!>f^'
ishes: in the county in which either of the cities, towns, school districts, amend. §12.
■ , ■ -^ \ 1 y Mass. 321.
or parishes, is situated : 4 Met. 212.
Second. When it is between a city, town, school district, or parish, * Cjj^Jj- |g-
and a natural person ; either in the county in which such city, town, 5 Gray,' sii!
school district, or parish, is situated, or in that in which the other party
lives :
Third. When one of the parties is a coqjoration of any other de-
scri])tioii than is before mentioned in this section ; in any county in
which such corporation has an established or usual place of business, or
has held its last annual meeting, or usually holds its meetings ; or if
the other party is a natural person, in the county where such person
lives.
Sect. 6. Actions, suits, and prosecutions by and against the city of hy and against
Boston may be brought in either of the counties of Suffolk, Essex, i;.v."jo, §§ 1™',
Middlesex, or Norfolk, or in the county whore the plaintiff lives ; but 'si-
./.I . , . . . , ,.*.-. ,,. ,, , 1 ^ U.S. actor
if brought by the city in the county ol Sundlk, may be removed to one amend. §13.
of the other of said counties, as ]irovided in the following section.
Sect. 7. The defendant or tenant, at the tenii at which his appear- if brought in
ance is entered, may file a motion in writing for the removal of the Mk" may be re-
suit, and the court shall thereupon order it to be removed to the proper """q"'',".'""*'*'
court in such one of the other of said counties as the attorney of the k. s. <jo,'§§i22,
city of Boston elects. Said attorney shall enter the same accordingly j^J'^ ^^^ ^j.
in the court so designated, at the then next term, and file therein cor- .amend. § i3.
tified copies of the -mit or other jirocess and of the order of removal ;
and the proceedings shall be conducted in like manner as if the suit
had been originally commenced in that county.
Sect. 8. Every civil action for the recovery of a forfeiture shall be ^rou.-bt fo" k-
brought in the county in which the offence was committed, unless a cnvc?yoffor-
diflerent provision is made in the statute imposing the forfeiture. kI's.'^oo, § 17.
rOEMS, ISSUING, AXD EETTTRN, OF WRITS.
Sect. 9. Civil actions, except those founded on scire facias or priginai writs
other special writs, shall be commenced by original writs, which shall const, cii. 0,
be signed, seajed, and bear teste, as required by the constitution. r V'oo 5 1
Sect. 10. The original writ may be framed, either, — tiirterent isinds
To attach the goods or estate of "the defendant, and for want thereof, ^^^'^^^^^
to take his body ; or, i:i k'e't! irs.'
It may be an original summons, with or without an order to attach
the goods or estate.
Sect. 11. When goods or estates are attached on either of the separate sum-
writs before mentioned, there shall be a separate summons, to be {y"attach^d°'"^'
served on the defendant after the attachment, and the service thereof «•■?• ?0'i*-
, ,, , rt. • . /, 1 • • 1 13 Jlet. 3<5.
shall be a sufncient service 01 the original summons.
Sect. 12. In actions against corporations, and in other cases in When writ and
622
SERVICE ON THE DEFENDANT.
[Chap. 123.
Bummons may
be' combined.
R. S. WO, § 5.
See Ch. 128, § 5.
"Writs in actions
befuro justices
of the peace.
11. s. yo, § 7.
Forms of writs,
&c.
ITtH, 28.
R. S. 90, §8.
3 Mass. 1%.
to be under
control of .S, J.
C.
R. S. 90, § 9.
Proceedings
wlien defend-
ant's name is
iinltnown.
R. .S. 90, § 54.
10 .^let. 430.
"Writs, how is-
sued. Const.
Ch.6, art. 5.
K. S. 82, § 35 i
90, §§ 2, « i act of
amend. § 9.
1859, 196.
8 Cush. 550.
Subpoena in
equity suits,
how issued.
R. .S. 90, § 118.
S Picli. 360.
SecCh. 113, §3.
"Writs to be re-
turnable to tlie
ne.xt ensuing
term, &c.
R. S. 90, § Uti.
1859, 190.
by persons
out of state to
be indorsed, &c.
U. S. 90, §S 10,
11.
R. S. 100, § 38.
R.-S. 112, §24.
3 Greenl. 2r.
5 Greenl. 313.
8 Greenl. 286.
9 Greenl. 51.
6 Mass. 494.
8 I'ii-k. 25.
11 riclc. (Hi.
12 Pick. 509.
wliich goods and est.ate may be attached, but in which the defendant
is not liable to an-est, the writ of attachment and original .summons
may be combined in one, requiring the officer to attach the goods and
estate, and to summon the defendant.
Sect. 13. Original writs in actions before justices of the peace shall
be signed by the justice before whom the action is brought, and shall
be d.ated and filled np like the other writs before mentioned.
Sect. 14. The forms of writs in civil actions shall be the same as
heretofore established by law and the usage and practice of the courts ;
but alterations may be made or allowed l)y the courts, when necessary
to adapt them to ch.anges in the law, or for other sufficient reasons.
Sect. 15. All changes in the forms of writs shall be subject to the
final control of the supreme judicial court; and said court may by gen-
eral rules regulate such changes in all the courts.
Sect. 16. When the name of a defendant is not known to the
plaintifl', the writ may be issued against him by a fictitious name, and
if duly served, shall not be abated for that cause, but may be amended
on such terms as the court deems reasonalile.
Sect. 17. Original writs in the supreme judicial court and all writs
and processes in the superior court shall be signed and may be issued
in term time or vacation by the clerk, may be returnable to the same
court in any other county, may run into any county, and shall be exe-
cuteii and obeyed throughout the state.
Sect. 18. The subpoena on bills in equity shall be issued from the
clerk's office either in term time or vacation, upon a bill there filed,
shall bear teste of the first justice of the court who is not a party to the
suit, and shall be under the seal of the court and signed by the clerk.
Sect. 19. Original writs issuing from the supreme judicial court, or
superior court, if required to be served fourteen days before the return
day, shall be made returnable at the court next to be held after the ex-
piration of fourteen days from the date of the "writ ; and if required to
be ser\-ed thirty days before the return day, shall be made returnable at
the court next to be held after the expiration of thirty days from the
dAte of the "writ : provided, that writs and processes of the supreme
judicial court may be m.ade returnable at any adjourned term, in like
manner as at a term established by law.
Sect. 20. Original writs, writs of audita querela, scire facias by
private persons on judgment or recognizance, writs of error in civil cases,
]ietitions for certiorari, and bills in equity, in which the plaintiff is not
an inhabitant of the state, shall before the entry thereof be indorsed by
some sufficient person who is such inhabitant ; but if one of tlie plain-
tiffs is an inhabitant of the state the process need not be so indorsed.
Every indorser, in case of avoidance or inability of the plaintiff, shall be
liable to pay all costs awarded against the ])laintiff, if the suit therefor
is commenced within one year after the original judgment.
18 Piclt. 220. 3 Mot. 59. 8 Cush. 98. 11 Cush. 89. See Ch. 129, § 29.
Original writs,
when to be
served.
R. S. 85, §8.
R. S. 90, §21.
laiO, 190.
5 Met. 334.
"When,if against
certain corpora-
tions.
R. S. 90, § 22.
5 Mass. lUO.
SERVICE OX THE DEFENDANT.
Sect. 21. Original "writs issuing from the supreme judici.al court, or
superior court, shall be served fourteen days at least before the term at
which they are returnable, and origin.al writs issued by a police court or
justice of the peace shall be served not less than seven and not more
than sixty days before the day on which they are returnable.
Sect. 22. When an action is brought ag.ainst a county, city, town,
precinct, parish, religious society, fir school district, or against ])ro]>rie-
tors of common and undivided lands, or general fields or wharves lying
in common, the writ shall be served thirty days at least before the
return day.
Chap. 123.] service on the defendant. 623
Sect. 23. When there is a separate summons to be served .after an Summons, how
attachment of goods or estate, it shall be served by delivering the sum- i^s^tw S39
mons to the defendant or leaving it for him as hereinafter directed ; and i3 Met. 475.
when there is an original summons without an attachment, it shall be
served b}' reading it to the defendant, or by delivering to him a copy
thereof attested by the officer who serves it, or by leaving such copy for
him as hereinafter directed.
Sect. "2-1:. The separate summons may be served at any time after same eubjoct.
the attaelmient is made: provided, it is served the number of days at -S-m, §«•
least before the return day required with respect to the service of the
original writ, and the certificate of the service of the summons shall be
indorsed on the original writ.
Sect. 25. If the summons is not served personally on the defendant, if no person.-ii
the original or a copy, as the case may be, shall be left at his last and k.'^".'9o'^§"4i'|'''
usual place of abode if he has any within the state known to the officer, *-5.
and if he has none it shall be left with his tenant, agent, or attorney, if « cusii. so'i.
he has any within the state known to the officer. If he has no such last
an<l usual place of abode, and no tenant, agent, or attorney, no service
on him shall be required, except as is provided in the three following
sections.
Sect. 26. If an absent defendant whose goods or estate are attached on absent de-
ls sued with one or more others on a joint contract, and he has no such fu"p,idan}'in''tiie
last and usual place of abode, and no tenant, agent, or attorney, within Ktate,&c.
the state, the summons for him, or a copy, as the case may be, shall c cush.354. '
be left with one of the co-defendants, if there be any within the 3Gray,508.
state.
Sect. 27. In real actions, if the defendant or tenant in the action is in real actions
out of the state and has no last and usual iilace of abode here known to a^.^inst persons
, , , , ' , I ,, • T !• • <»" "' state.
the demandant, the summons or an attested copy shall, m addition to k. .s. iw, §47.
any other service required, be left for him with the tenant or occu])ant "cu'sh. 32!'
of the demanded premises if there is any, and if not, in some conspic-
uous jilace on the premises.
Sect. 28. In all cases when the defendant is out of the state or his Defendant in all
place of residence is not known to the officer, and no personal service is Bf-ite'^/'to"'^
made on him, he shall, in addition to the service as herein prescriljed, iiave further
be entitled to further notice of the suit as provided in chapter one huii- I't" '1; 90, § 4s.
dred and twenty-six. <■ Cush. 354.
Sect. 29. In suits against a county the summons shall be served bj' summons how
leaving an attested copy thereof with one of the county commissioners, <" be served on
or with one of the officers who by law exercise the powers of county tions!" °'"^''°™"
commissioners. In suits against a city, town, precinct, parish, religious U-S. 90, 542.
society, or school district, or against the jirojirietors of conmioii and
undivided lands, or general fields or wharves lying in common, the
summons shall be served by leaving an attested co])y thereof with the
clerk of the corporation or j)roprietors, and another like copy with the
mayor or one of the aldermen or one of the selectmen of the city or
town, or one of the assessors or standing conmiittee of the parish or
religious society, or one of the proprietors of such land or other estate,
as the case may be ; and if there is no such clerk found within the
county, the copy shall be left with one of the other officers before men-
tioned, or with one of said proprietors ; and if there are no such officers,
the copy shall be left with one of the inhaliitants of the city or town or
one of the members of the corjjoration.
Sect. 30. In suits against a corporation other than those mentioned how.on other
in the preceding section, the summons shall be served by leaving the d"'"E°!S''?';5-
. . 1 , t 1 '111, 1 • K. &. yt>, s 4.i.
original or cojiy, as tlie case may be, with the clerk, cashier, secretary,
agent, or any other officer having charge of its business; and if there is
no such officer fo\ind within the county, the summons may be served on
any member of the corporation.
G2i
ATTACHMENT OF PROPERTY — GENERAL PROVISIONS. [CllAP. 123.
Service in suits
in equity.
K. S. 9(1, §§ lis,
lltf.
Sect. 31. Every writ of original summons or subpoena issued in suits
in equity shall be served in the same manner and the same number of
days, at least, before the day on which it is returnable, as would be
required for the service of an original writ at common law between the
same parties.
Property liable
to attaelimiiut.
E. S. 90, §s '.^1,24.
1853, 2li9, § i.
1859, is:!.
5 Greenl. 453.
7 Mass. laj.
11 Mass. 184.
13 Mass. 128.
17 Mass. 41J9.
3 Pick. 3!i8.
11 Pick. 341.
2 Met. .510.
SeeCli. 1U3;
Ch. lis, « 78;
Ch. 133, §§27-32.
Successive .it-
tachments ou
same writ.
E. S. 90, §55.
Proceeds of
property at-
tached uud sold
raay be agaiu
attached.
E. S. 90, §§ 71,
See §§ ;
73.
Goods replevied
from offi.-er
liable to further
attachmeut.
E. S. 90, § 99.
Plaintiff in re-
plevin liable for
whole value.
E. S. 90, § WO.
Goods may be
further attacli-
cd, after deatll,
&c., of first at-
taclliajj officer.
E. S. 90, § 101.
Proceedings in
such case.
E. S. 90, §§ 102,
103.
ATTACHMENT OF PROPERTY GENERAL PROVISIONS.
Sect. 32. All real estates, goods, and chattels, liable to be taken
on execution, (e.xcept such goods and chattels as, from their nature or
situation, have been considered as exempt according to the principles of
the common law as adojited and practised in this state,) may be attached
upon the original writ, in any action in which debt or damages are
recoverable, and held as security to satisfy such judgment as the ]ilaintiff
may recover: j^i'ovided, that no attachment of lands or tenements shall
be made on a writ returnable before a justice of the peace, or police
court, unless the debt or damage demanded therein exceed twenty
dollars.
Sect. 33. Different attachments may be made successive!}' upon the
same writ by one or more officers and in one or more counties, at any
time before the service of the summons ; but no further attachment shall
be made after the summons is served.
Sect. 34. When goods are sold or disposed of, by consent of the
parties or after an apjiraisal as hereinafter provided, the proceeds while
remaining in the hands of the officer shall be liable to be further attached
by liim as the property of the original defendant in like manner as the
goods themselves would have been liable if they had remained in the
possession of the officer ; and the proceeds so attached shall be held and
disposed of in the same manner as if the attachment had been made on
the goods themselves before the sale thereof But this shall not prevent
the officer from jtaying over to the defendant the surplus of the proceeds
of such sale, after retaining enough to satisfy all the attacliments actually
existing at the time of such payment.
Sect. 35. All goods taken by replevin from an officer who has
attached them shall be considered as still remaining in his custody and
control so fiir as to be liable to further successive attachments, in like
manner as if the goods themselves had remained in his possession.
Sect. 36. If there is judgment for a return of the goods so replevied,
the plaintiff in the replevin and his sureties shall be liable for the whole
of the goods, or the value thereof, although the attachment for which
they are eventually held was made after the taking of the goods by the
rei)lcvin.
Sect. 37. If an officer after making an attachment of goods dies or
is removed from office while the attachment remains in force, the same
goods, whether replevied or remaining in possession of the officer or of
his e.veeutors or administrators, m.ay be further attached by any other
officer so as to bind the goods or the proceeds thereof, in like manner
as if the latter attachment had been made by the first-mentioned
officer.
Sect. 38. The officer making the latter attachment in such case shall
not take the goods themselves, but the attachment shall be made by a
return setting forth an attachment in the common form and stating by
whom the goods were previously attached, and, if the goods have not
been replevied, by leaving a certified cojiy of the writ, (without the
declaration,) and of the return of that attachment, with the former
officer if living, or if he is dead with his executor or a<lministrator, or
whoever else then has possession of the goods; or if the goods have
been replevied and tlie officer who maile the original attachment is dead,
such copy shall be left with the plaintiff in replevin, or his executors or
Chap. 123.] attachmext of property — general provisions. 625
administrators, .inrl the attachment shall be considereil as made when
such copy is delivered in either of the modes before provided.
Sect. 39. Goods taken by replevin from an attaching officer shall Mode of attach-
not be further attached as the property of tlie original defendant, in any pifvfert.'** "^
other manner than that provided in tlie tour ]ireceding sections, so long k. s. uo, §iw.
as they are held by the person who re[)levied them, or by any one hold-
ing under him, unless the original defendant has acquired a uew title to
the goods.
Sect. 40. Goods and chattels attached by an officer, whether i-eraain- Attadiment to
ing in his custody at the time of his death or taken from him by re]lle^■in ?hou"'i"attach-
or otherwise, and also all claims for damages to goods so taken from liim, ij^'J''S|^*5 ui'^"'
shall remain subject to the attachment in like manner as if the officer " '
had lived, and shall not be considered as assets in the hands of his execu-
tors or administrators.
Sect. 41. If real estate that is attached is subject to a mortgage or ofiandthatii
other encumbrance, and the mortgage is redeemed or the encumbrance K°s.^wf'§32.
removed before the levy of the execution, the attachment shall hold the luJiass. «4.
premises discharged of the mortgage or encumbrance, and the execution 2 3iet. sio. '
may be levied in the same manner and with the same effect as if the
mortgage or other encumbrance had never existed.
Sect. 4'2. If final judgment in any case is rendered for the jilaintiff, Goods, &c., nt-
the goods and estate attached shall" be held for thirty days after the Jhil'tv'iiay's'al?'^
judgment, in order to their being taken on execution ; and if the attach- t< t jiid^niiont.
ment is made in the county of Nantucket and the judgment is rendered ,v!-.', ior sixty'
in any other county, or if the judgment is rendered in Nantucket and 'i;iys. i" «itain
the attachment is made in any other county, the goods and estate shall li. s. oo, §25.
be held for sixty days after final judgment, unless in either case the
attachment has been dissolved as hereinafter ]irovide<l.
Sect. 43. If the final judgment is for the defendant, the attachment Attadiment
shall lie forthwith dissolved. K- «• «'■ § a'-- •l;,^;;,^^! ',3;
Sect. 44. The final judgment intended in the two preceding sec- defcudaut.
tions is that which is rendered in the original action, whether upon toi'Ifed'TnVvra
appeal or otherwise, and not such as mav be rendered upon a writ of iTccediug sec-
error or writ of review. ■ 4 Mass. 09. OJIass.lill. ',;%";go_ 5 ._,-.
Sect. 45. When real estate, goods, chattels, or effects, are attached, Attachment
and the debtor dies before they are taken or seized on execution, the IlJath'of detend-
attachment shall be dissolved if administration of the estate of the ant, unless, &c.
deceased is granted in this state within one year after his decease, or if f jja's's"!'-!].''*'
application therefor is made within said vearand administration is after- ? ,^' ",'"'•,!:!!'■'•
wards granted upon such application. If no such administration is ncush.ws.
granted, the property attached shall continue bound by the attachment « ^Jfy; ii*> 523.
in like manner as if the debtor were still living.
Sect. 46. When the attachment is of goods, the officer shall upon Proceedings in
demand deliver them to the executor or administrator, if any is appointed j"* ^"3 "; ^^^
in this state within the time limited in the ]ireceding section, upon 6 Met. mo.
receiving from the executor or administrator his legal fees and charges
for attaching and keejiing the goods.
Sect. 47. If the officer has sold the goods on execution before such Officer UaWe
demand, or if he has sold in like manner any other chattel interest, or proce'rfs"'''
any right of redeeming real estate attached as aforesaid, he shall not be k. s. uo, § 107.
considered a trespasser for so doing; but he shall be liable only for the '**~''*^-
proceeds of the sale after deducting his legal fees and charges for attach-
ing, keeping, and selling, the goods, and such proceeds may be recovered
by the executor or administrator in an action of contract for money had
and received.
Sect. 48. If the officer in such case has paid over the proceeds of Creditor liable
the sale to the judgment creditor before such demand, he shall be ov™to'iiim'""''
exem])t from all further liability therefor, and the executor or adminis- R. s. 90, § los..
trator, if appointed as before provided, may recover from the judgment '' ' '"'
53 79
626
ATTACHMENT OF REAL AND LEASEHOLD ESTATES. [ChAP. 123.
No Bet-off al-
lowed in such
case.
E. S. 90, §109.
creditor the amount so paid to him, in an action of contract for money
had and received.
Sect. 49. The defendant, in an action founded on either of tlie three
preceding sections, shall not be allowed in any manner to set oif a de-
mand against the executor or administrator, or against the estate of the
deceased.
Attachment,
how made.
R. S. 'JO, § 31.
1847, 207, §3.
5 Greeol. 453.
13 M;iS8. US.
11 Pii-k. 341.
II Met. ii,>.
Copy of writ
and officer's re-
turn to be de-
posited iu
clerk's office.
li. S. 90, §28.
1S!9, 89.
1847, 267, § 3.
1 Met. 212.
2 Met. 486.
10 Met. 142.
11 Met. 244.
Officer's duty
and fees.
1838, 181).
1839, SO.
1847, 207, § 3.
2 Met. 481).
5 Met. 617.
Clerk's duty
and fees.
K. S. 90, § 30.
1850, 209.
When such at-
tachment takes
effect.
1{. S.90,§29.
Attachment of
real estate
fraudulently
couveved, &c.
1*H, 107, § 2.
18SS, 453.
Clerk to enter
name of persons
having legal
title, &c.
ATTACHMENT OF REAL ESTATE AND LEASEHOLD ESTATES.
Sect. 50. In attaching real estate or any right or interest in land, it
shall not be deemed necessary that the oflicer should enter upon the
land or be within view of it. In attaching leasehold estates the officer
shall state in his return in general terms the leasehold property attached.
Sect. .51. No attachment of real estate or of any leasehold estates
on mesne process shall be valid against a subsequent attaching creditor,
or against a person who aftei'wai'ds purchases the same for a valuable
consideration and in good faith, unless the original writ or a copy there-
of, and so much of the officer's return thereon as relates to the attach-
ment of the estate, is dejwsited in the office of the clerk of the courts for
the county in which the lands lie, or in the office of the clerk of the
supreme judicial court if the lands lie in the county of Suffolk, which
copy shall be certified by the officer, but need not contain the declara-
tion in the writ.
Sect. 52. Every officer making such attachment shall deposit the
writ or copy in the clerk's office according to the jirovisions of the ])re-
ceding section ; and he shall be entitled to receive four cents a mile for
his travel from the place of service to the office of the clerk, together
with his fee for the cojiy.
Sect. 53. The clerk shall note on every such writ or copy the day,
hour, and minute, when he receives it, and shall file the same in his
oflice. He shall also enter in a book to be kept for that jiurpose the
name of the plaintift' and name of each defendant whose estate is at-
tached, the time when the attachment was made, and the time when the
writ or co]>y was deposited. His fee in each case shall be twenty-five
cents, for which he shall not be holden to render any account, and which
shall be paid on the delivery of the writ or copy, and may be taxed for
the plaintift" in his bill of costs.
Sect. 54. If the writ or copy is deposited as aforesaid within three
days after the day on which the attachment is made, the attachment
shall take effect from the time it was made, otherwise from the time
when the writ or copy is so deposited.
Sect. 55. When an attachment on mesne process is m.ade of real
estate or any right or interest therein which has been fraudulently con-
veyed by the debtor to a third person ; or which has been jjiirchased or
the purchase money of which has been directly or indirectly paid by
the debtor and the title thereto retained in the vendor or conveyed to
another person, with the design ami for the pui-pose of fr.audulently
securing the same from attachment by a creditor of such debtor, or with
the intent and for the purpose of delaying, defeating, or defrauding,
creditors ; it shall not be valid against a subsequent attaching creditor,
or against a person who afterwards ]iurehases the estate for a valuable
consideration and in good faith, unless the officer in addition to the
return required by the [ireceding sections also returns a brief descrip-
tion of the estate attached, by its locality, situation, boundaries, or oth-
erwise, as known to him, and the name or names of the person or per-
sons in whom the record or legal title stands.
Sect. 56. The clerk in such case, in addition to the names of the
parties to the writ which ho i.s- required to enter as provided in section
fifty-three, shall also enter in his book of attachments the names of the
Chap. 123.] attachmeot' of goods not movable, shares in corporations. 627
persons in whom the record or legal title stands as returned by the offi- ism, 107, §3.
cer, in the same manner as if the estate of such persons were attached
as defendants in the writ.
ATTACHMENT OF GOODS, &C., WHICH CANNOT BE REMOVED.
Sect. 57. When an attachment is made of articles of personal estate Attachment of
which by reason of their bulk or other cause cannot be immediately re- f" te*^r!-m(n"ed''
moved, a certified copy of the writ, (without the declaration,) and of the k. s. ao, §§33,
return of the attachment, may at any time within three days thereafter shcu. 40s.
be deposited in the office of the clerk of the city or town in whicli it is 2 'l''^*: ^^•,,.
made; and such attachment shall be equally valid and effectual as if the see ch. 133, §42.
articles had been retained in tlie possession and custody of the officer.
Sect. 58. The clerk shall receive and file all such copies, noting same subjcpt.
thereon the time when received, and keep them safely in his office, and K. s. 90, §33.
also enter a note thereof, in the order in which they are received, in the
books kept for recording mortgages of pei-sonal property ; wliich entry
shall contain the names of the parties to the suit and the date of the
entry. The clerk's fee for this service shall be twenty-five cents, to be
paid by the officer and included in his charge for the service of the writ.
attachment of shares in corporations.
Sect. 59. The share or interest of a stockholder in any corj^oration Sharesinoorpo
organized under authority of this state may be attached by leaving an be'LttaciI'T^ *°
attested copy of the writ, (without the declaration,) and of the return R- s. w, § 13.
of the attachment, with the clerk, treasurer, or cashier, of the company, seecu. iM.Ha.
if there is such officer; otherwise with any officer or person who has at
the time the custody of the books and papers of the cor|ioration.
Sect. 60. Any share or interest so attached, with all the dividends Same Bubjeett
thereafter accruing thereon, sliall be held as security to satisfy t])e final see^chfi^^s'ig.
judgment in the suit, in like manner as any other personal estate is held.
Sect. 61. If the officer having a writ of attachment against such renaitv on re-
stockholder exliibits the writ to tlie officer of the company who is ap- for r"lu,."ii or'
pointed to keep a record or account of the shares or interest of the g'^o ^"Is^"**'
stockholders therein, and requests a certificate of the number of shares isss.'sia.
or amount of the interest held by the defendant in the suit, such officer SeeCh. i33,§4fi.
of the company shall give such certificate to tlie officer holding tlie writ.
If lie unreasonably refuses to do so, or if he wilfully gives a false certif-
icate thereof, he shall be liable for double the amount of all damages
occasioned by such refusal or false certificate, to be recovered in an
action of tort, unless the judgment is satisfied by the original defendant.
attachment. He, OF PERSONAl, PROPERTY MORTGAGED OR PLEDGED.
Sect. 62. Personal property of a debtor that is subject to a mort- Attachment of
gage, pledge, or lien, and of which the debtor has the right of redemp- soodf"'"''
tion, may be attached and held in like manner as if it were unencum- ^■,'J'^5"»-
bered : provided, the attaching creditor pays or tenders to the mortgagee, 1 rick.Vgii. '
pawnee, or holder, of the property, the amount for which it is so liable, ii'jijt^^g
within ten days after the same is demanded, icush.srx. ccueh.ioc). iGray.sso. i3Met.204.
Sect. 63. Eveiy such mortgagee, pawnee, or holder, shall, when Mortgagee to
demanding payment of the money due to him, state in writing a just rtiie him,°&c.
and true account of the debt or demand for which the propertvis liable ''•,f-,''P;§",^-
to him, and deliver it to the attaching creditor or officer. It the same :;:! pick.321.
is not paid or tendered to him within ten days thereafter, the attach- ^.,^'<j*jg''2' ^^'
ment shall be dissolved and the property shall be restored to him; and 3 Met. 144.
the attaching creditor shall moreover be liable to him for any damages aVush. socf 575.
he has sustained by the attachment. 1 Gray. 254.
•' 3 Gray, 490.
628
ATTACHMENT OF PERSONAL PROPERTY MORTGAGED, &c. [ChAP. 123.
Penalty for de-
manding too
much.
K. S. !i(i, § SO.
1S52, ;irj.
Debt to be re-
paid out of pro-
ceeds of s.iles.
K. S. <M, § SI.
or by defend-
ant.
K. S. 90, § 83.
Personal prop-
erty mortgaged
in debtor's pos-
session may be
attaeiied, and
mortgagee sum-
moned, &c.
IS44, US, § i.
3 Cash. 30f).
6 Cusli. 101).
Conrt to ascer-
tain what is
justly citu'; and
creditor to pay
same to nii>rt-
gagee, or at-
tai^inient void.
ISH, US § -i.
Vnliility of
iiiortg;i'^e may
be ilniiivl by
creditor, and
tried bv jury.
iSU, lis, s 4.
Creditor to re-
tain amo'iut
paid bv •im,&c.
18«, H>, J 5.
not rr.'over-
in^judg uent,to
hold property
until repaid,&c.
ISH, 14s, § 6.
Sect. 64. If he demands and receives more than the amount due
to him, he shall be liable for the excess, with interest thereon at the
rate of twelve per cent, a year, to be recovered by the attaching cred-
itor in an action of contract for money had and i-eccived.
Sect. 65. When ]jro])erty attached and redeemed as aforesaid is
sold on mesne process or on execution, the procecils thereof, alter de-
ducting the charges of the sale, shall be first applied to repay the attach-
ing creditor the amount so paid by him, with interest.
Sect. 66. If the plaintiff after having redeemed the goods does not
recover judgment in the suit, he shall nevertheless be entitled to hold
the goods until the defendant rep.ays to him the sum which he paid for
the redem])tion, or as much thereof as the defend.ant would have been
obliged to p.ay to the mortgagee, pawnee, or holder, of the goods, if
they had not lieen attached, with interest from the time when the same
is demanded of the defendant.
Sect. 67. Personal pro]ierty of a debtor subject to a mortgage, and
being in the possession of the mortgagor, may be attached in the same
manner .-is if it was unencumbered ; and the mortgagee or his assigns
may be summoned in the same action in which the property is attached,
as the trustee of tlie mortgagor or iiis assigns, to answer such questions
as may be put to him or them by the court or their order touching the
consideration of the mortgage and the amount due thereon.
Sect. 68. If upon such examination, or verdict of a jnry as herein-
after provided, it appears to the court that the mortgage is bona fide,
the court, having iirst ascertained the amount justly due upon it, may
direct the attaching creditor to pay the same to the mortgagee or liis
assigns within such time as it orders ; and if the attaching creditor does
not ]iay or temler the sum within the time prescribed, the attachment
shall be void and the pro])erty be restored.
Sect. 69. If the attaching creditor denies the validity of the mort-
gage and moves that the same may be tried by a jury, the court shall order
such trial on an issue to be framed nmler the direction of the court, and
if ujion sueli examination or verdict the mortgage is adjudged valid, the
mortg,agee or his assigns shall recover his costs.
Sect. 70. When the creditor has paid to the mortgagee or his
assigns the sum directed by the conrt, he shall be entitled to retain out
of the proceeds of the property attached, when sold, the sum so ]iai<I
with interest, and the balance shall be applied to the payment of his
debt.
Sect. 71. If the attaching creditor after ha^^ng paid the sum di-
rected by the court does not recover judgment in the suit, he shall
nevertheless be entitled to hold the projierty until the debtor has repaid
the sum so paid by order of court, with interest.
Goods attached
may be sold by
consent.
K. S. 90, § 57.
17 Pick. 429.
1 Met. .■!4.
4 Met. i:)7, 504.
0 Met. 94.
10 Met. 235.
4 Cush. 393.
See § 34.
Ch. 133, §§34^2.
SALE BY CONSENT OF PERSONAL PEOPEETY ATTACHED.
Sect. 72. When personal property is attached, whether on one or
more writs, and the debtor and all the attaching creditors consent in
writing to the sale, the attaching officer shall sell it in the manner pre-
scribed by law for selling like property on execution ; and the proceeds
of the sale, after deducting the necessary charges, shall be held by the
officer subject to the attachments, and shall be disjiosed of in like man-
ner as the property would have been held and disposed of if it had
remained unsold.
Property at
tached
1^
PERISHABLE PEOPEETY ATTACHED.
Sect. 73. When an attachment is made of live animals, or of goods
ab'ie,''&c.,''may''" °^ chattels which are Uable to perish, waste, or be greatly reduced in
Chap. 123.] sale of perishable propektv attached. 629
value by keeping, or which cannot be kept without great and dispro- be appraised
portionate expense, and the parties do nut consent to a sale thereof as nlis^VJill'^ jg.
before provided, the jiroperty so attached shall n]ion tlie request of J;"^ i*'ck. 407.
either of the parties mterested be examined, appraised, and sold or
otherwise disposed of, in the manner following.
Sect. 74. Upon such application made by either party to the attach- Proceeding's
ing officer, he shall give notice to all the other parties or their attorneys, "ion for ajl''''
prepare a schedule of the goods, and cause three disinterested persons praisemcut.
acquainted with the nature and value of such goods to be appointed 1852,1,53. '
and sworn before a magistrate, or the attaching officer, to the faithful
discharge of their duty as appraisers.
Sect. 75. If the defendant is not within the state and has no attor- Notice to dc-
ney therein, the notice shall be left in writing at his last and usual ])lace oiTt'^of the 'state.
of abode in the state if he has any, otherwise it shall be delivered to, i>^~, iss-
or left at the dwelling-house or jilace of business ot; the j)erson who had
]M)ssession of the projierty at the time of tlie attachment.
Sect. 76. The ap]iraisers shall be ajipointed, one by the creditor or Appraisers,
creditors in the several suits, one by the debtor or debtors, and one by k" s "yo'Tw^'^'
the officer ; and if the debtors or creditors resi>ecti\ely neglect to ap-
point such a]ipraiser, or do not agree in the nomination, the officer shall
appoint one in their behalf
Sect. 77. The a]ipraisers shall examine the attached ]iroperty, and ipon dodsion
if they are of ojiinion that the same or any part thereof is liable to goods'may ta>
perish or waste, or to be greatlv reduced in value by keepiiiLC, or fioW-
' . . - * K S 00 S 61
that it cannot be kept without great and dis])roportionate expense, 4 cu'sii. 'sua. '
they shall jiroceed to appraise the same according to the best of their ^'''' 5 r2.
skill and judgment at the value thereof in money; and the goods shall
thereupon be sold by the officer and the proceeds held and disposed of
in the manner before provided in the case of a sale by consent of par-
ties, unless the goods are taken by the debtor as provided in the follow-
ing section.
Sect. 78. The goods so appraised shall be delivered to the debtor, or delivered
if he requires it, upon his depositing with the attaching officer the ap- up^ntiTf d°.po9.
praised value thereof in money, or giving bond to him in a sufficient pen- i'jng moiKv or
alty and with two sufficient sureties, conditioned to pay to him the S*s!«o, }«2'. °"
apjiraised value of the goods or satisfy all such judgments as may be re-
covered in the suits in which the goods were attached, if demanded within
the time during which the goods would have been held by the respective
attachments, or within thirty days after the time when the creditors
resjiectively would have been entitled to demand payment out of the
proceeds of the goods if they had been sold as before provided.
Sect. 79. The officer taking such bond shall return the same with Bond to be re-
the writ on which the first attachment is made, in like manner as bail ^r™f'' "'"' "'*'
bonds are returned, with a certificate of his doings in relation thereto, k. s.»o, §c3.
and if the bond is forfeited, the creditors or any of them may bring an ' " "'
action of contract thereon in the name of the officer.
Sect. 80. The writ in such action shall in addition to the usual Action thereon
indorsement have also indorsed on it the names of the creditors by ^creditors'!'
whom the action is brought ; and if judgment is rendered for the defend- K- s. 90, §«'.
ants, executions for the costs shall be issued against all the creditors
whose names are so indorsed.
Sect. 81. If iudgment is rendered for the plaintiff, the money recov- Money recovcr-
ered shall be first applied, under the order of the court, to pay the ^itm. '"■'°''° *°
reasonable expenses of prosecuting the suit, so far as the same are not ti. s. no, § lis.
reimbursed by the costs recovered of the defendant ; and the residue
shall belong to all the attaching creditors according to their respecti\ e
rights.
Sect. 8"2. The court may upon a hearing in cqiiity determine the A°| 'vf "^ o''^'
rights of the several attaching creditors, and award u separate execution k. s. 90, § 06. '
53*
630
JOINT PEitSONAL PRORERTY ATTACHED, &c. [ChAP. 123.
Prior attach-
ments to be pro-
tected.
R. S. 90, § 67.
Creditor not
joining in suit
on the bond, &c.
R. b. 90, § OS.
Limitation of
action on bond,
and of scire/a-
inas on judg-
ment.
U. S. 90, § 69.
Creditor may be
pjiid, leaving
enough for pri-
or .ittachinenta.
K. S. 90, § 70.
for the amount due or payable to each, to be served and levied to his
own use in the manner provided when a judgment is rendered on an
admin i.stration bond ; or they may award one execution for the whole
sum due on the bond, and cause the money received to be distributed
among the creditors according to their respective rights.
Sect. 83. No judgment or execution shall be awarded for the use
of a creditor without reserving as much as may be due ujion any ]irior
attachment, whether the creditor in such prior suit is or is not one of
those by whom the action is brought on the bond.
Sect. 84. Any creditor entitled to the benefit of the bond who has
not joined in bringing the action thereon, may bring a wi-it of go're
^facias, on the judgment, and recover any sum due to him uj)on the
bond; or he may u])on motion, at any time before final judgment, be
allowed upon such terms as the court prescribes to become a party to
the action, as If he had been one of those by whom it was originally
brouglit.
Sect. 85. No creditor whose cause of action on such bond accrued
more than one year before the commencement of the action, shall have
judgment or execution in such action, and no creditor shall sue out a
writ of scire facias on the judgment, unless within one year after his
cause of action accrues.
Sect. 86. When goods which are sold or appraised and delivered to
the debtor in the manner before provided are attached liy several cred-
itors, any one of them may demand and receive satisfaction of his judg-
ment notwithstanding a prior attachment, if he is otherwise entitled to
demand the money, and if a suflicient sum of the proceeds of the
goods, or of the appraised value, is left to satisfy all prior attachments.
(Joods attached
;aay be apprais-
ed at request of
j>art owner not
.1 defendant,
i:. S. 90, § 7.3.
a Met. 36.
7 Grray, 416.
and delivered
to such part
owner upon his
'jiving bond, ifcc.
U. S. 90, § 74.
If such part
•wner pays, the
".oods become
;>Iodged.
U. S. 90, § 75.
To be restored
on dissolution
of attachment.
K. S. 90, § 76.
lletum of offi-
i-er, and pro-
;-eedings in suit
upon bond.
It. S. 90, § 77.
JOINT PERSONAL PROPERTY ATTACHED ON A WRIT AGAINST PART
OWNER.
Sect. 87. When personal pro] )erty belonging to two or more persons
is attached in a suit against one or more of the part owners thereof, it
shall, upon the request of any other of the jwrt owners, be examined
and ai>)iraised in the manner before provided for an ap]iraisement when
made at the request of a party in the suit; except that the ])art owner
who makes the apjilication shall appoint one of the ajipraisers, and the
debtor shall not appoint any.
Sect. 88. The ])roperty so appraised shall be delivered to the part
owner at whose request it was a])praised, upon his giving bond to the
attaching officer, in a sufficient penalty and with two sufficient sure-
ties, conditioned to restore the same in like good order, or to pay the
officer the appraised value of the defendant's share or intere.st therein,
or s.atisfy all such judgments as may be recovered in the suit in which it
is attached, if demanded within the time during which the property
would have been held by the respective attachments.
Sect. 89. If such ap]iraised value or any part thereof is so paid, the
defendant's share of the property shall thereby become pledged to the
party to whom it was delivered, and he may sell it, if not redeemed, and
shall account to the defendant for the balance of the proceeds of the
sale.
Sect. 90. If the attachment is dissolved, the party to whom the
defendant's share was delivered shall restore the same to the defendant,
or to the officer to be by him delivered to the defendant.
Sect. 91. The doings of the officer, together with the bond, shall be
returned by him in the manner before provided in the ca.se of a bond
given by a debtor upon the delivery to him of property attached; and
upon the forfeiture of such bond like proceedings may be had as are
provided upon the forfeiture of the bond given by a debtor.
Chap. 123.] attachments, disputed, excessive, &c. 631
ATTACHMEXTS DISPUTED BY PEKSOXS HAVING SUBSEQUENT LIENS, &C.
Sect. 92. When a person claims title or interest by force of a sub- FnnKiuient at-
seqnent attachment, purchase, or moi-tgage, or in any otlier manner, in iiI.Vo"t,Vi'. *' °^
any estate real orjiersonal that is attached in a suit between other per- {J,' ^,,^'' !?•
sons, he may dis])ute the validity and effect of the jirior attachment, on gjlit. C9. '
the gi-ound that the sum demanded in the first suit was not justly due,
or was not payable when the action was commenced.
Sect. 9.3. The person objecting to the attachment may file his peti- Petition hy the
tion in the court in which the first suit is pending, at any time before fngTil'-rcto.''
final judgment therein, praying that the ]nior attachment may be dis- R. s. uo, §84.
solved, and setting forth the facts and circumstances on which his peti-
tion is founded, and the gi-ounds of his own claim.
Sect. 94. The petitioner or some person in his behalf shall make to be support-
oath that his claim is just and legal, and that all the other facts set forth k. s' iHj,"§tS '
in the petition are true, or are believed by the deponent to be so.
Sect. 95. The court upon the hearing of the petition shall at the Prior attach-
motion of either party direct a trial by jury of any question of feet JiissoiraliiT
arising in the inquiry, and if it appears to the court that any part of the ease, Ac-
sum demanded in the prior suit is not justly due, or was not payable .s'i'Wk. -tio.
when the action was commenced, it shall order the attachment therein ?.''''^- ^'}f-
11. ,1- II. •• * 1 T ^
made to be dissolved in whole or m part as justice requires ; but such
order shall have no other effect on tlie jirior suit.
Sect. 96. The proceedings between the two adverse claimants or Proceedings not
plaintiffs shall not be affected by any answer, jjlea, or other act, of the ewi!r'l!c.''oide-
defendant in the prior suit, nor by the judgment rendered therein. fcnciimt.
Sect. 97. Xo attachment shall be dissolved in manner aforesaid by Grounds of tie-
reason of an)' defence to the action founded on the laws for the lim- fence in Buch
itation of actions, restraining usury, requiring certain contracts to be k.^s. 90, §89.
made in writing, or of any other like defence, if it appeal's to the court
that the demand is othei-wise well founded, and is justly and equita-
bly due.
Sect. 98. The court may upon such inquiry award to either party D.images and
reasonable costs ; and if the prior attachment is maintained, the courts ™!)Jr,i'"i''' ""^
may award to the attaching creditor reasonable damages, and execu- li. .s. '.m, §90.
tion may be issued for such costs and damages. " " ^' ' — ■
Sect. 99. The court shall also, upon the filing of the petition, r.titionerto
require a bond or recognizance of the petitioner, or of some person in i;'„*',i,!",l,™gcf
his behalf; witli suflicient surety or sureties, conditioned to pay to the '.'.'"'.'"^'"jg,
adverse party all such damages and costs as may be awarded to him • • ' « •
in the proceedings ujioii the petition.
Sect. 100. If, during the pendency of the proceedings, the action Proceedings
in wliich the attachment is made is carried to a higlier court, the '1;",;;' ;',u''f^2.
inquiry concerning the attachment shall be earned to the same court,
and there heard and determined as if the action had been originally
commenced there.
Sect. 101. The decision or judgment of the court upon such an Decision to bar
inquiry, whether the attachment is thereby vacated or held to be y^id^ prim-'a'tt-rchtog
and effectual, shall be a bar to anj' action brought by the petitioner creditor tor
against the party who made the attachment, for any supposed fraud or k' .s'.'oo, §93.
deceit therein.
Sect. 102. Nothing contained in the ten preceding sections shall To lybat cases
apply to any action commenced before a justice of the peace or police kI's'"'!, § w.
court. "j ^'■•'J'' 2^-
eeduction of excessive attachments.
Sect. 103. If an excessive attachment of goods or estate is made Excessive at-
on mesne process, the defendant may apply in writing, in any county, brr"iucedon''
to a justice of the court to which such process is returnable, for a application to
632 POOR DEBTORS — ARREST, IMPRISONMENT, AND DISCHARGE. [ChAP. 124.
1852, 312, § 59. reduction of the amount of the attachment; and such justice shall
order a notice to tlie jihiintifi", returnable before himself or any other
justice of the same court as sjjeedily as circumstances permit. If, upon
summarily hearing the parties, it is found that tlie attachment is exces-
sive, the justice shall order it to be reduced, or a part of the goods or
estate to be released, and thereafter the attachment shall be deemed to
be reduced or partially released, according to such order.
Attachments
diseohx'd by
giving liond,
\vith suffiriL'ut
sureties, for
payment of
judgment.
18.3S, lo.?, § ao.
I»i2, 71.
1850, 27, § 1.
1851, 327, § 18.
1 Cush. 5.'55.
3 Cush. 189.
7 Cush. .333.
6 Gray, 112.
Same subject.
1841), 122.
1850, 27, § 1.
See Ch. 131,
§§ 18-21.
Fees for ap-
proving bonds,
&c.
1850, 27, § 2.
DISSOLUTION OF ATTACHMENTS BY GIVING BOND.
Sect. 104. Any person or corporation whose goods or estate are
attadied on mesne process in a civil action may, at any time before
final judgment, dissolve such attachment, by giving bond, with suf-
ficient sureties, to be approved by the plaintift' or his attorney in
writing, or by a master in chancery, with condition to ])ay to the
jjlaintiff the amount, if any, that he may recover within thirty days
after the final judgment in sucli action. No sureties shall be deemed
sufficient unless satisfactory to the plaintiff, or it is made clearly to
a])pear to the master that each one, if there are only two, is worth,
above wliat will pay his debts, a sum equal to tliat for which the
attachment is laid ; or, Lf there are more than two, that they are to-
gether worth twice such sum.
Sect. 105. Before such bond is apjiroved by a master, the party
whose goods or estate are attached, or some one in his bclialfj shall
make application in writing to a master, specifying therein the names
and ])laces of residence of the persons proposed as sureties. The same
notice of the time and place of the hearing thereon shall be given to
the plaintift' or his attorney, as is required in taking depositions ; but
the plaintiff or his attorney may in writing waive such notice, or may
approve the bond at any time.
Sect. 106. The fees of the master for approving a bond shall be
one dollar for the hearing and decision, and fifty cents for the citation.
If the attachment is dissolved, such fees shall be taxed in the de-
fendant's costs, if he prevails in the suit.
WHEN OFFICER TO ATTACH OE ARREST.
Plaintiff may Sect. 107. When the writ requires the officer to attach tlie goods
vicrnf'writsrby *"' *^''*t"te of the defendant, and for want thereof to take his body, the
attaciiment or plaiiitifl" or his attorney may by written or verbal directions require the
R. 8.90, §50. officer to serve the writ, by an attachment of goods or estate or by
4 Mass. (io. arresting the defendant, and the officer shall serve the writ according
to such directions, if it is in his power to do so.
CHAPTER 124.
OF ARREST, IMPRISONMENT, AND DISCHARGE.
ARREST ON MESNE PROCESS AND EXECU-
TION.
Section
1. Arrest on mesne process in actions of con-
tract.
2. in actions oftort.
3. not in actions for slander.
Section
4. Officer need not arrest without order.
5. Arrest on execution.
6. on execution for costs.
7. of woman.
8. No arrest alter sunset.
Chap. 124.] poor debtors — arrest ox mesne process and execution. G33
disch^vrge of persons arrested on mesne
process and execution.
Section
9. Defendant, when arrested, to be allowed
time to jji-ocure bail, &c. ; to be carried be-
fore majfistrate.
10. If defendant or debtor deglres to take oath,
but does not wish time fixed, &c., magia-
trate may take recognizance, &c.
11. A person surrendered, &c., may recognize
anew.
12. When defendant or debtor desiree to take
oath, notice to be given.
13. Service of notice.
14. New notice not to be given until after seven
days, unless, &c.
15. Defendant or debtor to be examined.
10. Examination may be adjourned, &c.
17. Pending examination, recognizance may be
taken, &c. No recogiiizance after oath has
been refused.
18. Defendant may be discharged if he was not
intending to leave the state. Proceedings.
19. Examination conouming ability to pay, ^.
20. Debtor not entitled to oath, if he misspends
his property, Ac.
21. If magistrate is satisfied, &c., he may ad-
minister outh.
22. Certificate of magistrate and effect of dis-
charge. Death of creditor not to affect pro-
ceedings.
23. Debtor on bail, &c., may be discharged, Ac.
24. not entitled to oatli, after scire /aeww,
until payment of costs.
DIPRISONMENT.
25. Debtor, when arrested on mesne process in
an action of tort, &c., may be conuuitted,
&c.
26. on execution, &c., may be committed,
&c.
27. support of, in jail.
28. creditor may discharge.
29. goods and estate of, to remain liable.
30. liable for all sums paid for his support.
punishment of fraudulent debtors.
Section
31. When fraud is charged, debtor to plead, Ac.
-32. Either i>arty may appeal.
3-3. Proceedings on appeal.
34. Upon default or conviction debtor may be
denied oath, &c.
DISCHARGE OF PERSONS DIPRISONED ON
WARRANTS OF DISTRESS IN FAVOR OF THE
STATE.
35, 36, 37. Proceedings when committed on
warrant of distress in favor of state.
DISCHARGE OR REMOVAL OF INS.VNE PERSONS
IMPRISONED IN CIVIL CASES.
38. Insane debtors, how released from confine-
ment on mesne process or execution.
39. Legal rights of creditors not affected.
SPECIAL PROVISIONS FOR PERSONS IN PRISON
OR ON BAIL IN CIVIL ACTIONS WHEN JUDG-
MENT IS RECOVERED AGAINST THEM.
40. Discharge of persons in jail or on bail when
final judgmunt is rendered agiiiust them.
41. 42. Proce'cdiugs when execution issues.
43. Bond may be given by person eurrendered
by bail after final judgment.
44. Debtor may be committed within thirty
days aft*-r judgment.
SURRENDER OF PRINCIPAL ON RECOGNI-
ZANCES.
■io. Proceedings when principal is surrendered
on recognizance.
REMEDY ON RECOGNTZAXCES AND BONDS,
AND FOR ESCAPES.
46. Remedy on recognizances and bonds.
47. for an escape.
FEES.
48. Fees of magistrate.
49. of the judge, under section thirty-eight.
50. of jailer.
ARREST ON MESNE PROCESS AND EXECUTION.
Section 1. No pei*son shall be an*ested on mesne process in an ac- Arrest on
tion of contract, unless the plaintilF or some ]>ei'son in his behalf makes ""^^^'J^'J*^''*^^^^
affidavit and ])roves to the satislaction of some justice of a court of rec- tontract.
ord, police court, judge of a probate court, master in chancery, commis- 5^;.;JJ ior,||?L*
sioner of insolvency, and except in the county of Suffolk, tnal justice, or SeeCh. 17, gno.
i».,.£..i* Ch. 52, § 2() i Oh.
01 any justice ot the peace: — is, §78; Ch.
Fii-st. That lie has a good cause of action, and reasonable expecta- JiJ5,§»!.
tion of recovering a sum amounting to twenty dollars, exclusive of all
costs which have accrued in any former action :
Second. That he believes, and has reason to believe, the defendant
has propeity not exemjit from being taken on execution, which he does
not intend to apply to the payment of the plaintiff's claim : and
Third. That he believes, and has reason to believe, that the defend-
ant mtcnds to leave the state, so that execution if obtained cannot be
served u]ion him :
Or, (instead of the second and third,) that the defendant is an attor-
ney at law ; that the debt sought to be recovered is for money collected
by the detendaiit for the plaintiH', and that the defendant unreasonably
neglects to pay the same to the plaintiff.
And such affidavit and the certificate of the magistrate that he is
satisfied the same is true shall be annexed to the writ.
80
634 POOR DEBTORS — ARREST ON MESNE PROCESS AND EXECUTION. [ChAP. 124.
Arrest on
mesne process
in actions of
tort.
1S55, 249, § 1.
7 Gray, 51».
SeeCli. 17, §fiO.
See Cb. 105, §36.
not in actions
for Rlander.
1S55, L'4<i, § a.
Officer need not
arrest without
order.
E. S. 90, § no.
Arrest on exe-
cution.
186?, 141, §§ 1,
2,3.
185U, ion, § 2.
See Ch. ir, §60.
Ch. 118, §78.
Ch. 105,§30.
on execution
for costs.
of woman.
1857, HI, §30.
Sect. 2. No person shall be arrested on mesne process in an action
of tort imle.ss the ])laiutiii" or some j)erson in his behalf makes oath to
the satisfaction of some magistrate named in section one, that he be-
lieves, and has reason to believe, that he has a good cause of action
against the defendant, that he has a reasonable expectation of recover-
ing a sum equal at least to one-third the damages claimed in the writ,
.and that he has reason to believe that the defendant is likely to remove
beyond the jurisdiction of the court to which the writ is returnal)le, so
that execution, if obtained, cannot be served upon him ; and sueli affi-
da\'it with a certificate of the magistrate that he is satisfied the same is
true shall be annexed to the writ.
Sect. 3. No person shall be arrested on mesne process in a civil
action for slander or libel.
Sect. 4. The officer who serves an original writ shall not be liable
foi not having arrested the defendant unless he has been expressly re-
quired by the plaLutifl"or his attorney to make the arrest.
Sect. 5. No person shall be arrested on an execution issued for debt
or damages in a civil action, except in actions of tort, unless the judg-
ment creditor or some person in his behalf, after execution is issued
amounting to twenty dollars exclusive of all costs, which make part of
said judgment, whether the same have accrued in the last action or any
former action on the same original cause of action, and while so much
as that amount remains uncollected, makes affidavit and proves to the
satisfaction of some magisti'ate named in section one ; or if the execu-
tion was issued by a justice of the peace the affidavit may be made
before him :
First. That the debtor has ]iroperty not exempt fi-om l)eing taken
on execution, which he does not intend to apply to the payment of the
plaintilf's claim ; or,
Second. That since the debt was contracted, or the cause of action
accrued, the debtor has fraudulently conveyed, concealed, or oth.erwise
disposed of some jiart of his estate, with a design to secure the same to
Ills own use or defraud his creditors ; or,
Third. That since the debt was contracted, or the cause of action
accrued, the debttn- has hazarded and jiaid money or other jirojierty to
the value of one hundred dollars or more in some kind of gaming pro-
hibited by the laws of this state ; or,
Fourth. That since the debt was contracted the debtor has wilfully
expended and misused his goods or estate, or some ])art thereof, for the
purpose of enabUiig himself to swear that he has not any estate to the
amount of twenty dollars except such as is exempt from being taken on
execution ; or.
Filth, (if the action was founded on contract.) That the debtor
contracted the debt with an intention not to pay the same ; or.
Sixth. That the debtor is an attorney at law; that the debt upon
which the judgment on which the execution issued was for money col-
lected by the debtor for the creditor, and tliat said attorney unreason-
ably neglects to pay the same. And such affidavit and the certificate of
the magistrate that he is satisfied there is reasonable cause to believe
the charges therein contained, or some one of them, are true, shall be
annexed to the execution.
Sect. 6. No affidavit shall be required to authorize arrest u]>on an
execution issued for costs only, but the debtor arrested shall be com-
mitted thereon, unless he requires the officer to take him before some
magistrate authorized by this act, and all other proceedings in relation
to such debtor so arrested shall be in conformity with the jtvovisions of
this chapter relative to arrests on other executions.
Sect. 7. No woman shall be arrested on any civil process except
for tort.
Chap. 124.] poor debtors — discharge, notice to creditor. 635
Sect. 8. No arrest shall be made after sunset, unless specially No arrest after
authorized by the magistrate makiug the curtilicate, upou satisfactory iS5/,'i4i,§30.
cause shown.
DISCHAEGE OF PEESONS AEEESTED ON MESNE PROCESS ANT) EXECUTION.
Sect. 9. When arrested on mesne jirocess the defendant shall be when am-sfed,
allowed reasonable time to procure bail, and when arrested on such {ime'^to'prociiro
nrocess in an action of contract, or on execution, he shall be allowed bail, &c.
^ 11,.. ..- z» 1 • • 1 • i'i To be earned
reasonable tmie to procure sureties tor his recognizance liereinatter men- beibre magis-
tioned. When arrested on mesne process m an action of contract, if j^*''-j4, ,.^
he does not give bail, and when arrested on execution in any case, he is, a;.
shall be taken before some justice of a court of record, police court, ^^^^^'^i^^J
judge of a probate court, master in chancery, commissioner of insol-
vency, and except in the county of Suflblk, trial justice or two justices
of the quorum.
Sect. 10. When taken before the magistrate, if the defendant or ifdcfemiant or
debtor desires to take an oath as hereinafter mentioned, but does not S"o','|,'j?e oathr
desire any time fixed for his examination, the magistrate may take his but does uot
recognizance with surety or sureties in a sum not le.ss than double the i'Vinagistriin-'
amount of the execution, or of the ad (lammnn in the writ, if he is may take recog-
arrested on mesne jirocess, that within thirty days irom the day ot his ito-, hi, §§ lO,
arrest he will dehver himself up for exaniiiuition before some magistrate i^gray, 548.
authiirized to act, giving notice of the time aixl jtlace thereof as herein
provided, and appear at the time fixed for his examination, and from
time to time until the same is concluded, and not dejiait without leave
of the magistrate, making no deflnilt at any time fixed for his examina-
tion, and abide the final order of the magistrate thereon : provided^ that
if he is arrested on mesne process and the writ is returnable within
thirty days, the number of days within which he shall deliver himself
up shall be limited by the magistrate so as not to extend beyond the
return day of the writ.
Sect. 11. A person taken on execution and recognizing for his ap- a person sur-
pearance to take the oath for the relief of poor debtors, may if surren- Ji'.ii'y'rccogSi'e
dered by his surety recognize anew for such ajipearance at the time, anew.
place, and upon the conditions, exj)ressed in the first recognizance.
Sect. 12. If the defendant or debtor wlieu taken before the magistrate when defend-
er at any time when entitled thereto desires to take an oath as herein- ;'"JirJs''t'o^take
after provi<led and to have a time fixed therefor, the magistrate shall oath, notice to
appoint a time and ]ilaee for his examination and issue notice thereof iJ:jf"i4i|§§4, 5,
to the jilaintiff or creditor, signed by him and designating his official ^^^jj^-^ ,^
capacity, substantially in the following form: — iGray, 170!
To A B : C D , arrested on mesne process (or execution)
in your favor, desires to take the oath for the relief of poor debtor.-;, (or, if arrested
on mesne process in an action of contract, the oatli that he does not intend to leave
the state,) at (naming the day and hour and place.)
E F , (Magistrate.)
Notice may be given that the defendant arrested on mesne process as
aforesaiil desires to take both of said oaths, and the form of notice be
varied accordingly.
Sect. 13. The notice shall be served by any officer qualified to serve Service of no-
civil process, by giving to the plaintiff or creditor, his agent or attorney, ^^j^ i4i_ §§4,5.
an attested copy thereof, or by lea\ iiig such co]iy at the last and usual ^j'^jj'j^y-
place of abode of the plaintiff or creditor, his agent or attorney, allowing 7 Cush. ara, 265.
not less than one liour before the time ajipointed for the examination, 6 Gray, 251.
and time for travel at the rate of not less than one day for every twenty-
four miles' travel. When there is more than one person plaintifi" or
creditor, or more than one agent or attorney, service on one shall be
sufficient. When the plaintiff or creditor is dead or not a resident in
636
POOR DEBTORS DISCHARGE, EXAMINATION, &c. [ChAP. 124.
New notice not
to bo given un-
til after sevon
days, unless,
1857, HI, §2?.
Defendant or
debtor to be ex-
auiiued.
itar, HI, §§6, 7.
6 Gray, 251.
Examination
may be ad-
jourued, .tc.
1K5?, HI, §r.
Pending exami-
nation, recogni-
zance may be
taken, &c.
No recogni-
zance after oath
has been re-
fused.
1857, HI, §§ 10,
18.
Defendant may
be discharged
if he was not
intending to
leave the Rt.ate.
Proceedings.
l.-io7, HI, §-2U.
E.xamination
concerning abil-
ity to pay, &c.
1857, HI, §§0, IS.
Debtor not enti-
tled to oath if
he misspends
his property,
&c.
1857, HI, §18.
If ma^strate
is satisfied, <te.
he may admiu-
iflter oath.
the county where the nrrest i.s made, the notice shall be served upon
the agent or attorney it' he lives in the county or has his usual place of
business therein ; but if no such agent or attorney is found within the
county, the notice may be served on the officer who made the arrest.
The person who niailc the writ may always be regarded as the attorney
of the ])laintitf or creditor when an arrest is made on the writ or any
execution issued thereon.
Sect. 14. When a defendant or debtor has given notice of his desii-e
to take the oath for the relief of poor debtors, no new notice of the
same shall be given until the expiration of seven days from the service
of tlie former notice, unless the former notice was insufficient in form
or service.
Sect. 15. When the notice mentioned in section twelve has been
duly served, the magistrate who issued it, or any other magistrate named
in section one, shall attend at the time an<l place therein specified and
examine the defendant or debtor as herein provided.
Sect. 16. The magistrate may adjourn the case from time to time,
and shall have the same powers with respect to all other incidents thereto,
as justices of the peace or otlier courts have in civil actions; and wit-
nesses duly summoned shall attend as required in civil cases.
Sect. 17. Pending the examination and at any time after the de-
fendant or debtor is carried before a magistrate, the magistrate may
accept his recognizance with surety or sureties in a sum not less than
double the amount of the execution, or of the ad damnuni in the writ
if he is arrested on mesne process, that he will appe.ar at the time fixed
for his examination, and from time to time until the same is concluded,
and not dejaart without leave of the magistrate, making no default at
any time fixed for his examination, and abide the final order of the
magistrate thereon. No recognizance under this chapter, exce])t in case
of appeal under section thirty-three, shall be accepted at .any time .after
the oath has been once refused to the debtor.
Sect. 18. If the defendant, arrested on mesne process in an action
of contract, has given notice that he desires to take .an oath that he does
not iiitenil to leave the state, he shall be examined in relation thereto,
and any leg.al and pertinent evidence may be introduced by either party.
If the magistrate is s.atisfied th.at the defendant did not, when arrested,
and does not at the time of examination, intend to leave the state, he
shall make certificate thereof, and discharge the defendant from arrest.
Sect. 19. If the defendant or debtor has given notice that he desires
to take the oath for the relief of poor debtors, the magistrate shall ex-
■amine him on oath concerning his estate ami eftects, the disposal thereof,
and his ability to pay the debt or satisfy the cause of action for which
he is arrested; smd shall hear any legal and ]iertiiient evidence that may
bo introduced by either party. The plaintiff" or creditor may upon such
examination propose to the defemlant or debtor any interrogatories per-
tinent to the inquiry, and the examination shall, if required by either
party, be in writing, in which case it shall be signed and sworn to by
the defendant or debtor and preserved by the magistrate.
Sect. 20. If any person, arrested on execution, after such arrest,
miss])ends or misuses his gooils, ett'ects, or credits, to the amount of forty
dollars, not exempt from being taken on execution, but which cannot be
attached by ordinary process of Law, or so much as is equal to the sum
for which he is arrested or committed, witliout having first oft'ered the
same to the arresting creditor in satisfaction or part satisfaction of his
debts, he shall not be entitled to the benefit of the oath for the relief
of )30or debtors.
Sect. 21. If, upon the examination, the magistrate is satisfied of the
truth of the facts set forth in the oath to be taken by the defendant
or debtor, and in the certificate to be made by the magistrate, and it
Chap. 124.] poor debtors — oath, imprison'mext. 637
appears to him that the ilefendaiit or debtor is entitled to liis discharge isj7,i4;,§§8,io.
under the ])rovisions of tliis chapter, the magistrate shall administer to
him the following
Oath for the Relief of Poor Debtors.
I (here repeat the name) do solemnly swear that I have not any estate, real or per- Form of oath,
sonal, to the amount of twenty dollars, except the estate, goods, and chattels, which
are by law exempt from being taken on execution ; and that I have not any other
estate now conveyed, concealed, or in any way disposed of, with the design to secure
the same to my own use or to defraud my creditors : So help me, God.
Sect. 22. After administering the oath the magistrate shall make a Certificate of
certificate thereof under his hand, as follows, to wit:— emTt"fdL^''
ss. I hereby certify, that A B , a poor prisoner, arrested
cliJir^e. Death
of i-n-ditor not
upon execution, (or on mesne process in an action of contract,) has caused E to atlt-rt pro-
F , the creditor (or plaintiff) at whose suit he is arrested, to be notified accord- ^'e^'VS^s.n
ing to law of his desire to take the benefit of the law for the relief of poor debtors ; ' '" ' •
that in my opinion said A- B has not any estate, real or personal, to the
amount of twenty dollars, except the estate, goods, and chattels, which are by law
exempt from being taken in execution ; and has not anj- other estate now conveyed,
concealed, or in any way disposed of, with design to secure the same to his own use
or defraud his creditors. And I have after due examination of said A B ,
administered to him the oath for the relief of poor debtors.
Witness my hand, this day of , in the vear .
A-^ B , (Magistrate.)
Upon taking the oath, the defendant or debtor shall be discharged
from arrest or imprisonment, and shall lie forever exemjit from arrest on
the same execution, or any process founded on the judgment, or on the
same cause of action, unless convicted of having wilfully sworn falsely
on his examination. If he is aiTested or committed on execution, the
judgment shall remain in full force against his estate, and the creditor
may take out a new execution against his goods and estate as if he had
not been committed ; and if he is committed on mesne process, any
execution which may afterwards issue on a judgment for the same cause
of action, shall issue against his goods and estate, and not against his
body. The death of the execution creditor shall not attcct any pro-
ceedings instituted under the provisions of this chapter.
Sect. 23. When a person has given bail or is imjirisoned on mesne rnbtoronbaii,
process in an action of contract, or is arrested or imjirisoned on any ,*'i:lr''«f !vc.'''^
execution, he maybe discharged in the same manner, and subject to tlie )*arrHi, §a3.
same provisions of law, so far as apjilic.able, as a person arrested on an ^''~-^-
execution mentioned in section five.
Sect. 24. No debtor shall be entitled to the benefit of the oath for not entitled to
the relief of poor debtors after a writ of scire facias on the bail liond ™,''!;.,"uutir"^
given by him in the original action has been served upon his bail, unless I'a.vineut of
he pays all costs which have accrued on such scire facias. iss?, ki, § 23.
imprisonment.
Sect. 25. If the defendant when aiTested on mesne process in an when arrested
action of tort shall not give bail; or when aiTested on mesne process in "^ss'ltAm actioii
an action of contract and carried before the magistrate, does not desire oftort, ,ti-.,
, , ^ ., . , . ,v . ,, , . ^ ^ niav be com-
to take an oath, or tails to recognize to the satisfaction ot the magistrate mit'tcd, &c.
as before provided, and does not give bail; or if on his examination he l^'''' i+'.§§2i.
does not swear to the satisfaction of the magistrate that he does not 2 Gray, 210.
intend to leave the state, and the oath for the relief of jioor debtors is
refused him, the magistrate shall make a certificate thereof, and the
defendant shall be conveyed to jail and there kept until final judgment
in the suit in which he was arrested. If the final judgment is against
him, he shall be held for thirty days thereafter, in order that he may be
taken on execution : unless (if the oath for the relief of poor debtors
has not been refused him) he recognizes as aforesaid or gives bail, or
54
638 POOR DEBTORS — PUNISHMENT OF FRAUDULENT DEBTORS. [ChAP. 124.
bond as pi-ovided in section forty, or takes tlie oath for the relief of ]ioor
debtors, or an oath that he does not intend to leave the state, or is
discharged by the plaintiff.
A debtor ar- Sect. 26. If the debtor an-ested on execution and taken before the
tton'&™may"e magistrate does not desire to take the oath for the relief of poor debt-
committeii, &c. ors, or fails to procure surety or sureties to the satisfaction of the
ISO?, 1 I'S • niagistrate as before provided, or if upon his examination said oath is
refused to him, of which refusal a certificate shall be annexed to the
execution and signed by the magistrate, he shall be conveyed to jail,
and there kciit until he has recognized as herein provided, (if the oath
for the relief of poor debtors has not been refused him,) or the execu-
tion is satisfied, or until he is released by the creditor, or has given
notice as before provided and taken the oath for the relief of poor
debtors,
support of, in Sect. 27. When a person confined in close prison on mesne pro-
^iblr, HI, § 25. cess or execution in any civil action claims supjiort as a pauper, the
jailer shall furnish his su]iport at the rate of one dollar and seventy-five
cents a week, to be paid by the creditor. The plaintiff or creditor in
such case shall, if required by the jailer, either from time to time ad-
vance the money necess.ary for the su]:i]iort of the prisoner, or gi^e the
jailer satisfectory securit}' therefor. If the plaintiff or creditor neglects
so to do for twenty-four hours after demand, the jailer may discharge
the prisoner. Such demand may be made of the officer Who made the
commitment, or of the plaintiff or creditor or his attorney, at any time
after the jirisoner h.as claimed such support,
creditor may Sect. 28. If a debtor committed on execution claims support as
discharsje.^^ ^ pauper, the creditor may at any time thereafter order him to be
discharged,
goods and es- Sect. 29. When a debtor is so discharged by order of the creditor,
mail" liable." or by the jailer for want of security or an advance of money as before
K.S.SI7, §ou. provided, the debt .and costs with all sums paid bv the creditor for his
y Cush 2^)0. ^ . . .^ . . T -,
support in prison shall remain a legal claim against his goods and
estate, an<l may be enforced accordingly in the same manner as if he
hud not been committed on the execution ; but his body shall never
thereafter be liable to arrest or ini]irisonment for the same debt, costs,
or charges.
liable for all Sect. 30. If the debtor undertakes to satisfy the execution, he
Bupport^'' '""^ ^'''■^l^ "0^ ^^ entitled to his discharge therefrom until he has ])aid all
R. S. 'J7, §00. charges for his support in prison, both u]ion the arrest on the original
writ and upon the commitment on execution, in addition to the sum
due on the execution and the costs and charges thereon.
PUNISHMENT OF FRAUDULENT DEBTORS.
When fraud is Sect. 31. When either of the charges named in section five, num-
to'pilart', &'i^""' bered second, third, fourth, fifth, and sixth, is made as therein provided,
iKsr, iii','§§ 12, or when the jilaintift' or creditor or any one in his behalf, at any time
i%ray, 172. pending the examination of the defendant or debtor who has given
notice of his desire to take the oath for the relief of jioor debtors, files
such charges in writing, subscrilied and sworn to by the plaintiff or
creditor or some person in his behalf, the charges shall be considered
in the nature of a suit at law, to which the defendant or debtor may
plead that he is guilty or not guilty, and the magistrate may thereupon
hear and determine the same. The plaintiff or creditor shall not upon
such hearing give evidence of any charges of fraud not so m.ade or
filed, nor of any fraudulent acts of the debtor committed more than
three years befoi'e the commencement of the original action.
Either party Sect. 32. When the hearing is had on the charges of fraud men-
may appeal. tioued in the preceding section, and judgment is rendered thereon by
Chap. 124.] poor debtors — discharge when imprisoned. 639
the magistrate, either party may appeal to the superior court, in like iRsr, ui, § 13.
manner as from the judgment of a justice of the peace in civil actions.
And the trial in the court appealed to shall be by a jury, unless the
court with the consent of both parties hears and determines it without
a jury.
Sect. 33. If the plaintiff or creditor appeals, he shall before the Proceedings on
allowance of the appeal recognize whh sufficient surety or sureties to "^''7';* ji_ 5 14.
enter and prosecute his appeal with efl'ect, to produce at the court ap-
pealed to a copy of all the proceedings upon said charges, and to pay
all costs if judgment is not reversed. If tlie defendant or debtor ap-
peals, he shall recognize in like manner and with the further condition
that if final judgment is against him he will witliin thirty days there-
after sun-ender himself to be taken on execution and abide the order of
the court, or pay to the plaintiff or creditor the whole amount of the
original judgment against him.
Sect. 34. If thedefendant or debtor after either of said charges has Upon default or
been made or filed against him voluntarily makes defiiult at any time <™bJ('r m"y be
appointed for the hearing, or if upon a final trial he is found guilty of ^^-"l^^^'h^"'
any of them, he shall have no benefit fi-om the proceedings under tliis u jict. +47.
chapter, and may be sentenced, by the magistrate or court before wliom |eech! iif;§ 1.
the trial is had, to confinement at hard labor in the house of correction
for a term not exceeding one year, or to confinement in jail not exceed-
ing sis months.
DISCHAJIGE OF PERSONS rSTPRISONED OX WARRANTS OF DISTRESS IN
FAVOR OF THE STATE.
Sect. 35. When a person committed to prison on a warrant of dis- Proeeedinjs
tress in favor of the commonwealth is unable to ]iay the debt for which ud'on^arrant
he is imprisoned, he shall be entitled to his discharge in like manner as "„',.'J,'^*Jf *^^^°
poor debtors arrested on execution ; and all the proceedings shall con- i-as, 2:0, §§ i.'s.
form as nearly as may be to the provisions of law in relation to such
debtors, except as hereinafter provided.
Sect. 36. If he represents to the jailer that he is desirous to take Same subject,
tlie oath for the relief of poor debtors, the jailer shall make the same 7'"cu8h.''5ll.^'*'
known to some magistrate mentioned in section one. The magistrate
shall thereupon appoint a time and ])lace for the examination of the
debtor, and shall notify the district-attorney for the district by a notice
v/liich sjiall be served on him by an attested copy thereof in hand, or
by leaving the same at his usual place of abode, thirty days at least
before the time a])pointed for the examination.
Sect. 37. When the place appointed for the examination is out of Same subject,
the city or town where the district-attorney resides, or he fi-om any "^*'>2'6.§5.
cause is unable to attend the examination, he may appoint counsel in
his stead ; and for such attendance by himself or counsel, suitable al-
lowance shall be made by the superior court for the county.
DISCHARGE OR REMOVAL OF INSANE PERSONS IMPEISONED IN CITIL
CASES.
Sect. 38. When a person confined in jail on mesne process or insane debtors,
execution is supjjosed to be insane, and thereby rendered incapable of j^/alSe'?
taking the oath for the relief of poor debtors, any person interested for mt-nt on mesne
his removal from jail on account of his sup]>osed insanity may apply by cutSn.^ ""^ '^'"^
petition to the judge of the probate court for the county in which he iws, 320, §1.
is imprisoned, setting forth the focts. The judge shall appoint a time
and place for a hearing and examination in the premises, and shall
order notice thereof to be given to the creditor or his attorney seven
days jjreviously to the time appointed. If satisfied upon the exami-
G40 POOR DEBTORS SPECIAL PROVISIONS. [ChAP. 124.
nation that the person is insane, the juflcje may order his discharge or
removal to either of tlie state luiiatiu liospital.s, or to siieh other place
as is provided by law for insane persons in any city or town in the state.
Legal rights of Sect. 3!). When a person is so discharged or remove<l finni jail, the
fected?"' "°* "" It'gal rights of the creditor shall not be aflected thereby, but shall" remain
1S48, 320, § 3. as though no commitment had taken place.
SPECIAL PROVISIONS FOR PERSONS IN PRISON OR ON BAIL IN CIVIL
ACTIONS VFHEN JUDGMENT IS RECOVERED AGAINST THEM.
Discharge of Sect. 40. Every person held in prison in a civil action at the time
or'oataii\vhca '^vlien final judgment in such action is rendered against him, shall be dis-
finaijudgmeut charged n|)on giving to the creditor a bond with sulticient surety or
agaiast thorn. Sureties to be apjiroveil by some magistrate named in section one, in a
]^~' 14^' ^ '' penalty not less than double the amount of the judgment, with condition
that he shall surrender himself at the same jirison, to the keeper thereotj
between the hours of eight and ten o'clock of the forenoon of the thir-
tieth day next after the rendition of said judgment, or if said thirtieth day
falls on Sunday, on the next following day, which day shall be specified
in the bond, and there remain until five o'clock of the afternoon of the
same day, so that he may be taken on the execution issuing on said
judgment.
Proeeedings Sect. 41. If an execution issuing on such judgment amounting to
i^s'ues.''^'^''""™ twenty dollars exclusive of costs, and while so much as that amount
is:!7, 198, 1 3. remains uncollected, is delivered to an officer cpialified to serve tlie
'' ' ' same, with the affidavit required for the arrest of a debtor on execution,
he may at any time within thirty days after the rendition of the judg-
ment on which the same is issued leave said execution, or a copy there-
of, with the jailer; and in such case the debtor shall u]ioii the surrender
of himself as provided in said bond be committed and held by the jailer
ujion the execution in like manner as if he had been taken and com-
mitted thereon by the officer to whom the execution was delivered.
The officer shall return the taking and commitment in like manner, and
be entitled to the same fees, as if the execution had been served in the
common form.
Same subjoct. Sbct. 4"i. The jailer shall immediately after the expiration of said
1837, 19S, §§ 3, 4. term of thirty days certify under his hand, upon the execution or copy
so left with him, the fact that such debtor has or has not surrendered
himself, according to the truth of the case, and give a similar certificate
to the officer on request, to be annexed to his return on the execution ;
and such certificate shall be deemed sufficient authority to the officer to
make his return accordingly. Such return with the certificate annexed
shall be deemed prima facie evidence of the fact, as well on the question
of breach of condition of the bond as in other cases. If the jailer gives a
false certificate, it shall be deemed misconduct .in office, for which any
party injured shall have a remedy in damages.
Bond may be Sect. 4B. If a person who has given bail on mesne jirocess in a civil
tm-n'iidem^^ actiou is Surrendered by his bail after final judgment in such action, he
hail after linai shall be enlarged upon giving to the creditor a bond like that before
^is':i,^"iy",'§ 5. prescribed in section fortj', except that the condition thereof shall
be for his surrender at the same ])rison on the thirtieth day next after
the surrender liy his bail. The [larticular day on which the same will fall,
and where tlierc is more than one prison in the same county the particu-
lar ]irison at which the surrender is to be made, shall be sjiecified in the
condition of the bond. All the other provisions relating to the bond
mentioned in section forty shall apply to the bond prescribed in this
section.
Debtor may be Sect. 44. Nothing Contained in the four preceding sections shall
wiuiiu thirty prevent an officer from taking the debtor and committing him to prison
Chap. 124.] poor debtors — recogxiz.^inces, &c., fees. 641
on such execution at any time within said thirty clays after the rendition days after judg-
of jud<;inent or surrender by the hail, as he might have done if such "sa;, los, §6.
bond had not been given. And the commitment of tlie debtor in such
case shall be deemed equivalent to his surrender according to the condi-
tion of his bond, and shall discharge the same.
SUREEXDEE OF PKIXCIPAL OX EECOGXIZAXCES.
Sect. 45. Whoever recognizes as surety for another as provided in Proceedings
this cha])tor, may at any time before breach of recoanizanee suiTender is'lu'rreiidered
his ])nnei])al and exonerate himself from all further liability, in the man- on recogui-
ner provided for the surrender by bail, and all the proceedings on such igs7, 141,526.
surrender shall be the same as provided in the case of bail. ^""^ Ch, 123.
REMEDY ox RECOGXIZAXCES AXD BOXDS, AXD EOR ESCAPES.
Sect. 4G. When any recognizance or bond taken under this chapter Remedy on re-
is broken, the creditor may have a remedy thereon by action of contract, bonds!™"''''
to be commenced within one year after such breach; and judfjinent shall "*■'"• 'o^'f^-
be entered for the amount of the penalty, but execution shall issue for '
so much thereof only as may be justly and equitably due : provided^
that if the recognizance was taken on an execution, the execution shall
not issue for less than the amount due on the original judgment, with
all tlie lawful costs and charges arising after the issuing of the original
execution.
Sect. 47. "When an escape is made by a prisoner aiTested or com- for an escape,
mitted on execution in a civil action, whether the escape be negligent R-S. 97, §§ri,
or voluntary on the part of the officer, the creditor may in an action of 1S52, 312.
tort against the officer recover such damages as he has suffered by the ^ ^^^^'^ -'■*■
escape, and may also have his remedy against the original debtor by a
scire facias, or an action of contract on the judgment.
FEES.
Sect. 48. The fees of the magistrate shall be: for hearing an appli- Feesofmagis-
cation for a certificate to arrest, one dollar ; for approving sureties and 5ssr'249, §1.
taking a recognizance after arrest, one dollar; for an examination, iso3, 27(i, § 0.
two dollars for each day spent therein. And the plaintiff or creditor i'<"'i*''S' •
causing an aiTCst shall pay these fees in advance. If the oath is not
administered, they shall be allowed as part of the senice of the writ or
execution. If the plaintiff or creditor shall, at any time after request,
make default in payment of the fees, or if the plaintiff or creditor, or
some one in their behalf, shall not attend the examination, the de-
fendant or debtor shall, without examination and without payment of
any fees, be discharged from arrest or imjirisonment, and shall be for-
ever exempt from arrest on the same execution or any process founded
on the judgniL'nt ; and .a certificate of such discharge under the hand
of the magistrate shall be annexed to the writ or execution : "providiid,
that if, after the oath shall have been once refused, the defendant or
debtor shall again a]iply for the benefit of the same, the fees for such
subsequent apjilication and examination thereon shall be paid by him.
The fee of a maefistrate for approving a bond under the provisions of
sections forty and forty-three shall be one dollar, to be paid by the
applicant.
Sect. 49. The fee of the judge for receiving a petition, issuing the of judge un-
order of notice, and for the examination and adjudication under the thWy^jight.
provisions of section thirty-eight, shall be five dollars, to be paid by the isis, 320, §2.
petitioner.
Sect. 50. The fees of the jailer, under the provisions of sections of jaUer.
54* 81
642
BAIL IN CIVIL CASES.
[Chap. 125.
1837, 198, §4. forty-one and forty-two, shall be as follows: on a surrender of a debtor,
fifty cents ; and for a certificate thereof, or of the non-snrrender of the
debtor, twenty-five cents, to be paid by the officer and charged with
the exjaenses of serving the execution. In other cases whore a certifi-
cate is required, the jailer shall be entitled to a fee of twenty-five cents,
to be paid by the party requiring the same.
CHAPTER 125,
OF BAIL.
taking bail.
Section
1. Defendant arrested on mesne process may
j^ve bail, Ac.
2. Bail, how taken.
3. Officer may require two sureties, &c.
4. Bond may be approved, &c. Fees.
5. to bind those who execute it, though,
&c.
G. to be returned with the writ.
7. Obligations of the bail.
8, 0. Suit on the bail bond.
10. To be brought within one year.
11. Answer of defendants.
SURKENDER OF PRINCIPAL, &C.
12. Principal may be surrendered in court, &c.
13. and committed.
14. may be surrendered out of court.
15. to lieeper of the county jail.
10, 17. Proceedings in such case.
Section
18. Notice to plaintiff.
19. Bail to pay costs on scire facias when, &c.
20. Treatment of principal after surrender.
21. I'rincipul may be surrendered on the origi-
nal suit.
RAIL IX ACTIONS BEFORE JUSTICES OF THE
PEACE, &C.
22. Proceedings on bail bond before a justice of
the peace or police court.
2-j. Surrender of principal in such a case.
24. Officer to attend, if requested.
25, 2G. Proceedings upon surrender.
27. Fees of officer.
SUPPORT OF PRINCIPAL.
28, 29. When debtor is surrendered by bail and
claims support as pauper, &c.
30. When b;ul are liable for support of pris-
oner,
31. When liability of creditor commences.
Defendant ar-
rested on mesne
proce.ss may
give bail, &c.
1857, Ml, §22.
See Ch. 124,
§§ 31-34.
Bail, how
taken.
E. S. 91, §1.
2 Mass. 481.
10 Mass. 20.
12 Mass. 434.
12 Met. 5C)4.
4 Gray, 301.
Officer may re-
quire two sure-
ties, »fec.
E. S. 91,§2.
1850, 199, § 1.
1852, 211.
9 Mass. 479.
Bond may be
approved, &c.
Fees.
1857, 141, § 22.
to bind those
who execute it,
though, &c.
TAKING BAIL.
Section' 1. A defendant arrested on mesne process shall be released
on giving bail ; but if lie has been sentenced to imprisonment on any
charge of fraud under the provisions of ciiapter one hundred and twen-
ty-four, the giving of bail shall not discharge him therefrom.
Sect. 2. Bail in a civil action shall be taken as heretofore practised,
by a bond to the sheriff, if the writ is served by him or his deputy,
otherwise to the coroner or otlier officer by whom the writ is served,
with condition that the defendant shall appear and answer to the plain-
titf, abide the final judgment of the court, and sh.all not avoid.
Sect. 3. An officer shall not be required to accept a bail bond unless
with two sureties at least, each of them having sufficient projierty within
the state ; and he may examine, on oath to be administered by liim, the
persons offi'red as sureties, as to their sufficiency. If he takes a bail
bond with one surety only, he shall be liable to the ]ilaiutlft" for any loss
snstained by the insufficiency of the bail, although the surety was actu-
ally sufficient when taken.
Sect. 4. The bond m.ay be approved by any justice of a court of
record or police court, judge of a jirobato court, master in chancery,
commissioner of insolvency, trial justice, or by a justice of the peace
and of the quorum, and when so approved the sureties shall be deemed
sufficient. The magistrate shall be paid Isy tlie ajiplicant one dollar for
the examination and apju'o\'nl or disapproval of the bond.
Sect. 5. A b.ail bond shall bind the persons who execute it, though
taken with one surety only, or with two or more sureties when they or
Chap. 125.] bail ix civil cases. 643
either of them have not sufficient property within the state, or -when it R. s. 9i,§3.
IS not ap]jrovea as aioresaid. a i>ick. ^4.
Sect. 0. The bond shall be returned and filed with the writ, and the 2 Met. 4<io.
clerk shall note on the writ tliat a bond is so filed. Upon an appeal, J^™cd°w'ith*' '
the bouil shall be sent with the other pajicrs to the court appealed to. ^^rit.
Sect. 7. In case of the avoidance of the principal and a retuiTi on 17" ji'a'ss'. (ioi
the execution that he is not found, his bail shall be obliged to satisfy ^ "|^'- S''*-
the Judgment, with interest thereon from the time it was rendered, unless J^jil^'""™" "*'
he discharges himself by surrendering the ]irincij)al before final judgment i/i,^- "'; 5 5-
against him on the writ of scire facias, or by other sufficient defence in ~
th;it suit.
Sect. 8. The bail bond shall be considered so far a matter of record Suit on bond,
and of the nature of a recognizance, that the creditor may take out a ?n'?h"'i|.'359.
■writ of scire facias thereon in his own name against the bail, in which 'f,*!?^"- ■*?^i
it shall be sufficient to allege, substantially, that the defendants became n vS^l'-.m.'
bail, without setting forth the bond. • ~ ^ot- ss?.
Sect. 9. The scire facias shall be issueil from the court in which the same subject,
judgment against the principal is rendered, and maybe taken out of the K-''-9i'§'-
clerk's office in vacation as well as term time.
Sect. 10. No such action shall be maintained against any person as to be brought
bail, unless the writ of scjVe/«ctV« is served on him within one year y"JJ."° """^
after the rendition of final judgment against the principal. u. s. 9i,§8.
Sect. 11. The defendants in such action may appear and answer Answer of de-
either jointly or severally to the plaintifl''s allegations. i'^"i"'.'*''8o
ISsii, 31-i, §§'12,
14.
SUEEENDER OF rRIXCIP.VL, &C.
Sect. 12. The bail may surrender the princi]ial in the court where Principal may
the scire facias is pending at any time Itefore final judgment therein |l^' court "ac^*^
against them, and on paying the costs of the scire facias up to that time li. .s. ui, § 10.
they shall be discharged.
Sect. 13. The principal so surrendered shall be committed to the and commit-
jail, there to rem.ain thirty days In order to his being taken on execu- 1" s. 91, § 11.
tiou, unless he is dischai-ged as provided in chapter one hundred and
twenty-four.
Sect. 14. The bail may at any time before final iudsraent against may be nur-
, . . ,. . ^ .' ' , 1 • 1/. ^ 1. ■"^1 ^ - rendered out of
hnn on a writ ot scire fictas, exonerate nnnselt irom lurtlier responsi- court, &c.
bility, by surrendering his principal as provided in the five following RS. ui,§i2.
sections.
Sect. 15. Such surrender may bo made to the keeper of the jail, t,*?(.oimt7jaU.
either in the county in which the principal was arrested or in that to u. s. 91, §13.
which the original writ against the ]irinci])al was returnaWe, and the
jailer shall receive the prisoner and hold him in custody in like manner
as if he had been committed by the officer who arrested him on the
original writ.
Sect. 16. The jailer shall not be obliged to receive a person so sur- ProccedingB in
rendered, unless the bail deUvcrs to him a copy of the bail bond attested K.^.g^fju.
by the officer who took it or the clerk in whose custody it may be. The
delivery of such copy shall be a sufficient warrant for the jailer, although
the surrender and commitment prove to be unlawful on the part of the
bail.
Sect. 17. The bail shall within fourteen days after such suiTcnder Same Bubject.
deliver to the jailer a cojjy of the original writ or process whereby the ^cush.'il??'
prisoner was arrested, with a coj.y of the return indorsed thereon,
attested by the officer who served the writ or the clerk into whose office
it is returned.
Sect. 18. He shall also within the same time give notice in ^^Titing Notice to plain-
to the plaintiff or his attorney, of the time when and the place where ^^g gj_ , jg
the prisoner was so committed.
G44 BAIL IN CIVIL CASES — BEFORE JUSTICES OF THE PEACE, &c. [ChAP. 125.
Bail to pay
costs ou scire
facias when,
&c.
E. S. 91, §17.
11 Gush. lU.
Treatmout of
principal after
surrender.
11. S. SI, § 18.
Principal may
be surreaderod
on the original
suit.
11. S. 91, § 19.
Sect. 19. If the surrender is made after a, v/ r\t of scire facia sis taken
out against tlie bail, lie shall within fourteen days after the surrender
]3ay the costs of .suit on the scire facias to the creditor or his attorney,
or to the jailor for his use: provided, that if the writ of scire facias has
not been served on the bail, he shall not be required to pay the costs
thereof until twenty-four hours after he has notice of the issuing of the
writ, and after a demand of the costs made on him by the creditor.
Sect. '20. Every person surrendered and committed shall be re-
ceived by the jailer, and held in custody. He may be forthwith bailed,
whether notice of the surrender has or has not been given to the plain-
tiff, and shall in all respects have the same rights and privileges as if
committed upon the original arrest.
Sect. 21. Nothing contained in the preceding sections shall impair
the right of bail, in all cases, to surrender their principal in the court iu
which the original suit is pending, at any time before final judgment ;
or, after judgment, to surrender him to the oiScer holding the execu-
tion, at any time before the return thereof.
BAIL IN ACTIONS BEFOEE JUSTICES OF THE PEACE, &C.
Sect. 22. When bail is taken in an action before a justice of the
peace or police court, the justice or court may issue a scire facias
against the bail, although the amount of the debt and costs on the
original judgment exceeds the amount to which his jurisdiction is
otherwise limited ; and the rights and obligations of the bail, and all
proceedings as to the surrender of the princijjal and the action against
the bail, shall be substantially the same as are provided with regard to
bail when taken in suits in other courts.
Sect. 23. When the bail in a suit before a justice of the peace or
jjolice court proposes to surrender his principal in court, cither during
the pendency of the original suit or the scire facias, he shall jjrocure
the attendance of some officer qualified to serve legal j^i'ocess in the
case, to whom the principal may be committed.
Sect. 24. Every such officer who is season.ably notified and re-
quested to attend for the j)urpose aforesaid, shall attend, and receive
and take charge of the principal if committed to his custody by the
justice.
Sect. 25. When the principal is surrendered in such suit, an entry
thereof shall be made on the record, and he shall be forthwith com-
mitted to the officer in attendance, to be conveyed to jail or otherwise
disposed of according to law.
Sect. 26. If the priucip.al is surrendered before final judgment in
the original suit, the bail shall deliver to the officer a co])y of the origi-
nal writ, with the return indorsed thereon, attested bj- the justice. If
the surrender is after final judgment in the original suit, the bail shall
deliver to the officer a copy of the entry of the surrender, attested in
like manner. The officer shall deliver the coiiy to the jailer, on com-
mitting the prisoner to his custodj' ; and such copy shall be a sufficient
warrant to the officer and the jailer, for receiving, committing, and
holding the prisoner according to law.
Sect. 27. The officer shall be allowed the same fees, to be paid by
the bail, as are provided for arresting and committing a defendant on
mesne process.
SUPPOBT OF PBINCIPAI,.
When debtor is Sect. 28. When a principal, suiTcndercd by his bail and committed
SiVana^cSims to jail, claims support as a pau])er, the jailer may require tlie plaintiff,
support U8 pau- or his attomoy in the suit, to give security or advance the money for
K. s. 97, §54. the support of the defendant in like manner as if the commitment had
Proceedino:s on
bail bond be-
fore a justice of
the jjeaco or po-
lice court.
U.S. 91, §20.
Surrender of
principal iu
Buch case.
K. S. 91, §21.
Officer to al^
tend, if re-
quested.
K. S. 91, §22.
Proceedings
upon surren-
der.
R. S. 91, § 23.
Same subject.
R. 8.91, §§24,
25.
Fees of ofRcer.
R. S. 91, § 20.
Chap. 126.] absent defendants and insufficient service.
645
been made by an officer. If the j)laiTitiff neglects so to do for twenty-
four liour.s after being so required, the jailer may discharge the de-
fendant.
Sect. 29. The jailer in such case may at the time of the surrender when debtor is
demand of the bail the advance of money for the support of the ]irin- bai"an(i''ei'aLn9
cipal or security tlierefor, instead of demanding the same of the plain- support as pau-
tiff: and if the bail neglects, for twenty-four hours after such demand, k^s.w, §55.
to giv'C such security or advance the money for the sujijiort of the prin-
cipal, the jailer may discharge him ; and the bail and the principal shall
thereupon continue liable to the plaintiff in all respects as if the sur-
render had not been made.
Sect. 30. The bail, if such demand is made of him, shall be liable When bail iia-
for the support of the princiital until the expiration of seven days after of priLnCT?'"^
he has given notice of the surrender to the plaintiff or his attorney in K-S. 97, §56.
the suit.
Sect. 31. The ])laintiff sliall be liable for the support of the defend- When liability
ant after the exi)iration of said seven days; and if he neglects to ad- nfen'ees.*" ™™"
vance the money or give security therefor as before provided at or K. s. y?, § 57.
before the expiration of said time, the jailer may discharge the defendant.
CHAPTER 126.
OF PROCEEDINGS AGAINST ABSENT DEFENDANTS AND UPON INSUFFI-
CIENT service.
Section
1. Actions against persons out of the state.
2. Plaintiff out of state liable to cross-action,
&c.
.3. Each of several defendants may have cross-
aetiou.
4. Writ, how served in such case.
5. Proccedinfjs in sucli actions. Following
provisions not to apply.
6. Notice to be given to defendant out of state,
or whose residence is unknown, &c.
7. If defendiint does not appear, Ac., .after
notice, judgment to be rendered, &c.
8. Bond, when to be given by plaintiff, upon
default of absent defendant.
Section
9. Bond, how taken and disposed of,
10. Execution levied on real estate of absent
defendant.
11. Judgment in a real action against him.
I'J. Absence of one of several defendants in
actions on tort.
in actions on contract.
Action may proceed against those served
witli process.
Other joint contractors liable to new action.
Absence of one of several tenants in real
actions.
of one of several defendants in mixed ac-
tions.
13.
H.
17.
Section 1. No personal action sliall be maintained against a per- Actions against
son who is out of the state at the time of the service of the summons, Fhrslate""' ""^
unless he had before that time been an inhabitant of the state, or unless ii. s.ao, §«.
an ettectual attachment of his goods, estate, or effects, is made on the 5 jiet.'^ioo. '
original writ, except in cases in which it is otherwise specially provided. f^Ppusii^isa
Sect. 2. When an action is brought by a jierson who is not an in- .t Gray, '508. '
habitant of this state or who cannot be found therein to be served with Plaintiff out of
process, he shall be held to answer to any action brought against him crob's-action,"
here by the defendant in the first action, if the demands in the two ^^''■g ^^ ,^g
cases are of such a nature that the judgment or execution in the one
case can be set olf against the judgment or execution in the other.
Sect. 3. If there are several defendants in the original action, each Each of several
of them may bring such cross-action against the original iilaintlft", and ila'^'a'cro'ss"''^
may be allowed to set oft' his judgment against that which may be re- -iction.
covered against himself and his co-defendants in like manner as if the 4'T!*u'."i2lif'' "
latter judgment had been against himself alone. i" -^i"***- ^^*- 1 "'^^*- so. 7 Mass. ho.
Sect. 4. The writ in such cross-action may be served on the person Writ, how
640
ABSENT DEPENDANTS AND INSUFFICIENT SERVICE. [ChAP. 126.
served in such
case.
E. S. 90, §51.
Procecflings in
such at'tious.
FoIIowin;^ pro-
visions not to
apply.
K. S. on, § 52.
K. S. 9-.', § 1(5.
Notice given to
defeudinlt out
of state, or
wliose resi-
dence is un-
known, &c.
K. S.lin, §S3.
H. S. 92, § 3.
2 Jlet. nS, 490.
5 Met. -103.
11 Met. 372.
2 Cusli. 32.
5 Cush. 52.
« Cusli. :;.H.
3 Grav, .jii9.
See til. 123,
§§ 25-28.
If defendant
does not appear,
&c., after no-
tice, jud;jmcnt
to be rendered,
K.'s. 90, §53.
R. S. 93, § 3.
See Ch. 140. §20.
Bond, wlien to
be ^dven by
plaintilf, upon
default of ab-
sent defendant.
It. .■<. 92, §(j.
19 Pick. IH.
13 Gray, 1.
hOAV tal:en
and disposed of.
K. S. 92, § 7.
Execution
levied on real
estate of absent
defendant.
K. S. 92, § 8.
Judtrment in a
real action
af^aiust him.
IJ. S. 92, § 9.
Absence of one
of several de-
fendants in ac-
tions on tort.
K. S. 92, § 10.
who appears as the attorney of the plaintiff in the original snit, and
such service shall be as valid and effectual as if made on the party him-
self within this state.
Sect. 5. The court in which tlie actions or either of them are pend-
ing may order continuances as they think necessary or proper to enable
the absent l)arty to defend the action brought against him, and also to
enable either party to set off his judgment or execution against that
which is recovered against him, but the actions shall not be unreason-
ably delayed by the neglect or default of either party. None of the
following rules concerning actions brought against persons out of the
state shall ajiply to a cross-action brought under the three preceding
sections.
Sect. 6. If a defendant is absent from the state or his place of res-
idence is not known to the ofKccr serving a writ, and no personal ser-
vice is made on him, or if the service of a writ is defective or insuffi-
cient by reason of mistake on the part of the plaintiff or officer as to
the j)laee where or the person with whom the summons or copy ought
to liave been left, the court upon suggestion thereof by the plaintiff
shall order the action to be continued from term to term until notice of
the suit is given in such manner as the court may direct. In any case
in which tlie defendant does not appear, the court may in their discre-
tion order the action to be continued and further notice given to him
in such manner as the court may direct.
Sect. 7. Ifj after such notice in either case, the defendant does not
appear at the term to which the action is continued, anil within the
first ten days of the term file such affidavit as he would have been re-
quired to file if sufficient legal service had been made upon him before
the entry of the action, judgment may be rendered an-ainst him upon
defiiult.
Sect. 8. When judgment in a personal action is rendered as pro-
vided in the preceding section upon the default of a defendant who is
out of the state or whose residence is unknown, the plaintifl' shall not
take out execution thereon within one year thereafter, unless he first
gives bond to the defendant with one or more sufficient sureties in a
sum equal to double the amount recovered, with condition to repay the
amount so reco\'ered if the judgment is reversed, or so much of the
amount as shall be recovered back upon a review to be brought by the
original defendant at any time within one year after the original judg-
ment.
Sect. 9. The bond shall lie deposited with the clerk of the court for
tlie use of the defendant, and the clerk sliall decide on the sufficiency
of the sureties, saving a right of a]ipeal from his decision to any ju.stice
of the court in which the judgment is rendered.
Sect. 10. If the execution in such action is levied on real estate, no
alienation thereof by the original plaintifl' shall prevent the defendant
from retaking the same, or as much thereof as may be necessary to
satisfy the judgment he recovers on such review : jwovided, that the
writ of review be sued out within one year after the original judgment.
Sect. 11. If the original judgment be for seisin of the premises de-
manded in a real action, the demandant may take out his writ of seisin
without giving bond ; and if the judgment be reversed in whole or in
jiart upon a review, whether sued out within the year or afterwards,
the original tenant may have restitution of the premises in like manner
as upon a reversal on a writ of error.
Sect. 12. In personal actions fiiunded on tort against several de-
fendants, if any one of them is out of the state at the time of the ser-
vice of the writ, the suit shall be conducted with regard to bim, in
everything relating to the service of the writ, judgment, review thereof,
and execution, in like manner as if he had been the only defendant in
the case.
Chap. 127.]
ACTIONS WHICH SURVIVE, &C.
647
Sect. 13. If au action founded on contract is brought against several
defendants, of whom any one is within tlie state and any other is absent,
and tlie phiintiff recovers judgment, he shall take it without any of the
conditions and regulations above ])rovided as to review, giving bond,
and alienating real estate; but he shall not take judgment against any
such absent defendant, unless under such circumstances as would have
entitled him to judgment against the absent party if he had been the
only defendant in the case.
Sect. 14. If an action founded on contract is brought against several
defendants, and the writ is duly served on one or more of them, but no
legal service is made on the others, either by attachment of property or
otlierwise, by reason of their absence from the state, or for other suffi-
cient cause, the action may proceed against those who arc duly sensed
with process, without further proceedings against the others.
Sect. 15. If judgment is rendered against one or more of several
joint contractors in the manner provided in the preceding section, and
remains unsatisfied, an action on the same contract may be afterwards
maintained .against any of the otlier joint contractors, in like manner as
if the contract had been joint and several.
Sect. 16. In real actions against several tenants, if any one of them
is out of the state the suit shall be conducted with regard to him in like
manner as if lie had been tlie only person sued.
Sect. 17. In mixed actions, if the defendant or any one of two or
more joint defendants, is out of the state, the suit shall be conducted
with regard to the absent defendant, in every thing relating to the
judgment, review, and bond, in the manner before provided witli respect
to personal actions founded on tort ; and in every tiling relating to the
service of the writ and the notice of the suit to be given to the defend-
ant, it shall be considered and conducted as a real action.
Absence of
one of several
defendants in
actions on con-
tract.
R. S. 92, § 11.
Action may
proceed a^ainet
those served
with process.
E. S. S2, § 12.
8 Mass. 433.
6 Mass. 1!I3.
13 Met. 23G.
Other con-
tractors liable
to new action.
R. S. 92, § 13.
0 Cranch, 2S4.
13 Maes. 148.
Absence of one
of several ten-
ants, &c.
R. S.'J2, §14.
of one of sev-
eral defendants
in mixed .ac-
tions.
R. S. 93, § 15.
CHAPTER 127.
OF ACTIONS WHICH SURVIVE, AND THE DEATH AND DISABILITIES OF
PARTIES.
actions which sur\nve.
Section
1. Actions which survive.
DEATH OF PARTIES IN PERSONAL ACTIONS.
2. Death of officer not to abate suit for goods
attached.
3. Judgment iu such case for executor, &c.
4. ag.iinst the executor, Arc.
5. General provisions as to actions which sur-
vive.
6. Executor or administrjitor may prosecute
or delend.
7. may be cited for that purpose.
8. Citation, how served and returned.
9. Executor, .tc, not appearing, may be non-
suited or defaulted.
10. Provision as to costs in such cases.
11. Death of joint plaintiff, &c.
12. of all the plaintiffs or defendants.
DEATH OF PARTIES IN EE.VL AND MIXED
ACTIONS.
13. Tn real or mixed actions devisee or heir
may prosecute.
14. jointly with survivor, if any.
Section
15. When survivors may prosecute alone.
Ifi. Proceedings when tenant dies.
17. when any of several dies.
DEATH OF PARTIES IN PETITION FOR P.\R-
TITION, &C.
18. Same proceedings in suits in partitions.
19. Except in certain cases.
30. Further exceptions.
DEATH OF PARTIES ENTITLED TO APPLY TO
COL'NTV COJDIISSIONEES.
31. If person having right to jury, &c., dies,
bcirs, &c., may apply.
MARRIAGE.
22. Marriage of a female party.
INS.VNITY.
23. Insanity of a party.
DEATH OR REMOVAL OF A PUBLIC OF-
FICER, &(■.
24. Death or removal of a public officer, &c.
648
DEATH OP PARTIES IN REAL ACTIONS, &c. ChAP. 127.]
Actions which
survive.
R. S. 14, § 68.
E. S. 03, § r.
1842, S'.l, § 1.
ISSa, 312.
fi Gi-eenl. 427.
8 Greenl. lis.
3 Mass. 22S.
4 Mass. 4S0.
~ JIass. :i'.i3.
5 Pick. 2or.
Sec Ch. 150, § 35.
Boatli of officer
not to abate suit
for j^oods at-
t.aclied.
K. S. Oi), § 90.
1852, :!12.
See Cli. 128.
Judgment in
sucli case for
executor, &c.
U. S. OU, § 97.
against the
executor, &c.
K. S. 90, § 98.
General provis-
ion as to ac-
tions whicli sur-
vive.
E. S. 93, § 1.
4N. H.385.
Executor or ad-
ministrator
may prosecute
or defend.
E. S. 93,§2.
may be cited
for tliat pur-
pose.
E. S. 93, § 3.
Citation, how
served aud re-
turned.
E. S. 93,§4.
Executor not
appeariu;Tj &c.,
niay be non-
suited or de-
faulted.
E. S. 93, § 5.
Provision as to
costs in such
case.
E. S. 93, § 6.
ACTIOXS WUICII SURVIVE.
Section 1. In addition to the actions which survive by the common
law the following .shall also survive : actions of replevin ; of tort for
a.ssault, battery, imjjrisonment, or otlier damage, to the jierson ; for
goods taken and carried away or converted by defendant to his own use;
or for damage done to real or jjersonal estate ; and actions against sher-
ifts for malfeasance or nonfeasance of themselves or their deputies.
lyPicls. 47. 21Picli.2oO. 0 Met. 94. 4 Cush. 41.3. 5 Cu8li.543. 9 Cush. 108, 478. 7 Gray, 544.
DEATH OF PAETIES IN PEESONAX ACTIONS.
Sect. 2. When goods or chattels attached by an officer are claimed
or t.aken awaylty another person, and an action of replevin or tort there-
for is brought by or against the officer, the action shall not be abated by
the death of either party, but may be prosecuted by or against the ex-
ecutor or administrator of the deceased party.
Sect. 3. If judgment in such case is recovered by the executor or
administrator of the officer, the goods or money recovered shall be held,
appropriated, and disposed of, in the same manner as they would and
ought to have been by the officer if he had lived and recovered the
same liimself
Sect. 4. If judgment is rendered against the executor or administra-
tor of the officer, the goods and damages recovered shall be returned,
delivered, and paid in full, by the executor or administrator, if he has
sufficient therefor, although the estate of the deceased is insolvent.
Sect. 5. In ])ersonal actions, the cause of which survives, if there is
only one plaintiff or defendant, and the sole plaintiff or defendant dies
after the commencement of the action at any time before tinal judgment,
the action may proceed and be prosecuted by or against the survi^•ing
party, aud the executor or admmistrator of the deceased i^arty, in the
manner provided in this chapter.
Sect. 6. The action or an appeal therein may be entered in such
cases, if not already entered, and the death of the party suggested on
the record ; and his executor or administrator may, at the same term or
within such further time as the court shall allow, appear and take upon
himself the prosecution or defence of the suit ; and it shall be thence-
forth conducted in the same manner as if it had been originally com-
menced by or against the same executor or administrator.
Sect. 7. If the executor or administrator does not voluntarily ap-
pear, the surviving ])arty may take out a citation from the court or
justice of the peace before whom the cause is pending, requiring the
executor or administrator to appear and take upon himself the prose-
cution or defence of the action.
Sect. 8. The citation if taken in tenn time may be made returnable
at the same or the next succeeding term, as the court shall order; if
taken in vacation, it shall be returnable at the next term ; and if issued
by a justice of the peace, or police court, it shall be made returnable at
such time as the justice or court sliall direct. In all cases it shall be
served fourteen days at least before the return day.
Sect. 9. If the executor or administrator does not appear on the re-
turn of the citation, or within such further time as the court or justice
may allow, he shall be nonsuited or defaulteil, and judgment shall be
rendered against him in like manner as if the action had been originally
commenced by or against him, in his said capacity, except as provided
in the following section.
Sect. 10. When an executor is nonsuited or defaulted without hav-
ing taken U])on himself the prosecution or defence of the action, he shall
not be personally liable for costs in the action ; but the estate of the
deceased in his hands shall be liable for the costs, as well as for the debt
or damages if any are recovered.
Chap. 127.] death of parties in real and mixed actions. 649
Sect. 11. When there are several plaintiffs or defendants in a per- Death ofjoint
sonal action the cause of which survives, and any of them die before ^{'"i?*^;,;*!';;
final judgment, the action shall i)rocced at tlie suit of the sui-viving ^ ji[^f^"J;j*-"'-
plaintiff, or against the surviving defendant, as tlie case may be. 7 pk-k! 62.'
Sect. 12. If in such case all the jilaintiffs or all the defendants die, 'J rick. 588.
the action may be prosecuted or defended by or against the executor or pi„intin'8 or
administrator of the last surviving ])laintiff or defendant respectively, j^'^'^y^c^ij
in like manner as if the survivor had been origLually the only plaintiff 9 pick. 532.
or defendant.
I
death of paeties in keax and mixed actions.
Sect. 1.3. In real and mixed actions, if the dem.andant dies before in real and mix-
final judgment, his heir or devisee of tlie land demanded or of the right Lc" or°heir '^^
of action may, at the same term when the death is suggested, or within m»y P([!["*,'^j?'''-
such furtlier time as the court shall allow, ap]iear and prosecute the suit i.ssj.aii, §55.
in tlie same manner as if it had been originally commenced by him. jlj l\f^- '~^-
And in case of a devise, if tlie first estate in possession under the devise 1 Cubu'. 395'.
is not a fee simple, the devisee of the first freehold estate in possession
sliall have tlie right to appear and prosecute, and the judgment if in his
favor shall lie conformed to his title.
Sect. 14. If there are several demandants, and any of them die be- jointly with
fore final judgment, the heir or devisee of tlie deceased party shall be ?""! sX'f 15°^'
admitted, on motion, to prosecute the suit jointly with the survivors, in ji^jj^g-g^-
the same manner as if he had originally joined with them in commencing
the suit.
Se(:;t. 1.5. If the interest of tlie deceased party passes to the surviv- or survivor
ing demandants, or if there is no motion for the admission of another XJo^"*'^™*''
person as heir or devisee at the term wlien the death of the deceased R. s. 93, § 16.
party is suggested, or within such further time as the court shall allow,
the surviving demandants may prosecute the suit for so much of the
premises in question as may then be claimed by them.
Sect. 10. If the tenant dies before final judgment, his heir or devisee Proceedings
of the land demanded, may at the term when the death is suggested, or Se™""""'
within such further time as the court shall allow, ai>pear and take upon 1855,364, §§1,2.
himself tlie defence of the suit, which shall thenceforth be conducted in
the same manner as if it had been originally commenced against him.
If the heir or devisee does not voluntarily appear, the demandant may
take out a citation fi-om the court before whom tlie cause is pending,
requiring him to appear and take upon liimself the defence of the suit.
Sect. 17. When any of several tenants in a real or mixed action die when any of
before final judgment, the action may be prosecuted against the sui-viv- R.^^sfn?.
ing tenants for so much of the premises as tliey hold or claim. - M'lss- -iso.
o i J 2 Rck. 23.
19 Pick. 213.
death op paeties in petitions for partition, &c.
Sect. 18. The same proceedings as are prescribed in the five pre- s.imo procecd-
ceding sections shall be had in all jietitions and actions for partition of {".rtit'lon"'" '^'^
lands, in case of the death of any of the parties, except as is provided in k. s. u3,'|18.
the two following sections. io3i.iss. 5!''
Sect. 19. If upon the death of either of several plaintiffs or petition- Except in cer-
ers in a suit for partition the interest of the deceased party jiasses to the K^g'^S'^ljo
surviving plaintiff's or petitioners, or to any person admitted to join them
in the suit, it shall be prosecuted in the manner before provided respect-
ing real actions ; but if the interest of the deceased jiarty ]iasses to any
person not so admitted as a plaintiff or ]ietitioner, such jjerson may by
order of the court be made a defendant or respondent, and the same
proceedings may be had against him as would have been necessary to
make him an original defendant or respondent.
55 82
650
ACTIONS BY AND AGAINST EXECUTORS, &c. [ChaP. 128.
Further excep-
tions.
E. S. 93, § 20.
Sect. 20. K ujwn the de.ath of either of several defendants or re-
spondents the interest of tlie deceased party passes to tlie surviving
defendants or respondents, the suit may proceed against them without
any new process; but if the interest of the deceased party passes to any
other person, that person may be made a defendant or respondent in the
manner prescribed in the jjreceding section.
DEATH OP PARTIES ENTITLED TO APPLY TO COUNTY COMMISSIONERS.
If person hay- Sect. 21. When a person having a right to apply to county com-
ry°&c''di*e°''" missioners for a jury to assess damages or to hear and determine any
heirs, &c., may other matter, dies without so ap])lying and within the time limited
S,'228 therefor, liis executor, administrator, heir or devisee, if interested, may,
within one year after liis interest vests in him, make such application in
the same manner, with the same effect, as if made by the deceased in
his lifetime.
MARRIAGE.
Marriage of a
female party.
E. S. 93, §21.
1855, 304.
1857, 249.
14 Mass. 295.
17 Mass. 342.
Sect. 22. If an unmarried woman who is a party to a suit either
alone or with others marries before final judgment, she may continue to
prosecute or defend the suit in like manner as if she were sole, and her
husband need not be admitted as a party thereto.
INSANITY.
Insanity of a
party.
R. S. 93, § 22.
13 Mass. 412.
5 Pick. 431.
Sect. 23. K during the pendency of an action or suit either party
becomes insane, the action may be prosecuted or defended by his guar-
dian in hke manner as if it had been commenced after the a]ijiointment
of the guardian, or the court may appoint a guardian for the suit, as the
case may require.
DEATH OR REMOVAL OF A PUBLIC OFFICER, &C.
Death or re- Sect. 24. An action on a note, bond, contract, or other liability made
i?c''officer,'&'c"!'' to Or with the treasurer of the commonwealth, or of a county, city, town,
5- §• 1?' \ ?*• parish, or other corporation, or to or with any other public officer, or
trustee appointed under a statute, may after his removal, resignation, or
death, be commenced or if before commenced, may be prosecuted by
his successor as it might have been by the person with whom the con-
tract was made.
R. S. 93, § 23
E. S. 100, § 25.
2 Mass. 440.
12 Mass. 675.
2 Met. 47.
6 Cush. 230.
CHAPTER 128.
OF ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS.
Section
1. Actions which survive may be commenced
against executor, &c.
2. Damages recoverable in tort against execu-
tor, &c.
3. Recovery by executor, &c., in right of an-
other.
4. Goods returned on replevin by executor,
&c., not to be assets.
fi. Writs against executorsi &c., how to
ran.
Section
6. Executor, &c., when personally liable for
costs.
7, 8. Execution in such case.
9. Costs to be allowed to them, &c.
10. .Scire facias against executor, Ac, on sug-
gestion of waste.
11. Death of executor, &c., pending suit.
12. Proceedings iu such case.
13. Death of executor, Ac, after judgment.
14. Writ of error in such case.
Chap. 128.] actions by and against executors, &c. 651
Section 1. All actions which would have siii'vived if commenced What actions
by or against the original party in his lifetime, may be commenced and ?otT&c/''"^°°
prosecuted by and against his executors and administrators. K- s. 93, §8.
Sect. 2. When an action of tort is commenced or prosecuted against DamageBre'cov-
tho executor or administrator of the person originally liable, the plain- arable in tort
tiff shall be entitled to recover only for the value of the goods taken, or tor, &c.
for tlie damage actually sustained, without any vindictive or exemplary J^.f/a^il' ^^"
damages, or damages for any alleged outrage to the feelings of the 4 Kck. sis.
injured party.
Sect. 3. When the executor or administrator of a trustee, carrier, Recovery by
depositary, or other person, who claimed only a special property in inright ofaiT-
goods to hold them for the use and benefit of another, recovers such S."'^'",,, ,.„
goods or damages for the taking or detention thereof in an action of isss, 312.
rejilevin or tort, the goods or money recovered shall not be considered
as assets in his hands, but shall atter deducting the costs and expenses
of the suit be paid over and delivered to the person for whose use and
benefit they were so held or cbiimcd by the deceased person.
Sect. 4. When judgment for a return in an action of replevin is Goods returned
rendered against an executor or administrator, the goods returned by ™ooSois&(?f
him shall not be considered as assets in his hands ; and if they have ""^ !",'?' Insets.
been included in the inventory, it shall be a suflicient discharge for the • ■ ' » •
executor or administrator to show that they have been returned in
pursuance of such judgment.
Sect. 5. Writs of attachment and executions against executors or Writs against
administrators for debts due from the deceased testator or intestate, howlo'run*''''
shall run only against the goods and estate of the deceased m their K-S. 110, §1.
hands, and not against their bodies, goods, or estate.
Sec;t. 6. When a judgment for costs is rendered against an executor Executor, &c.,
or administrator in an action commenced by or against him, or in an {^ iiab?e7or°
action commenced by or against the testator or intestate, wherein the ^?*^,'^,,„ 5,,
executor or administrator has apjieared and taken upon himself the pros- lo'siass.MO.'
ecution or defence, he shall be personally liable for the costs.
Sect. 7. When judgment is recovered against an executor or admin- Execution in
istrator for costs only, the execution shall be awarded against his body, r.'^s.Tw,'§3.
goods, and estate, as if it were for his own debt.
Sect. 8. When the juilgnient is for debt or damages, and costs, an Same subject,
execution for the debt or damages shall be awarded against the goods ". s. no, §4.
and estate of the deceased in the hands of the executor or adminis-
trator, and another execution for the costs, against the goods, estate,
and body, of the executor or administrator, as if it were for his own
debt.
Sect. 9. Costs paid by executors or administrators, and for which Costs to be ai-
they are made personally liable, shall be allowed iu their administration ^c"*^ ° '^'
accounts, unless the probate court decides that the suit was prosecuted K. s. 110, §5.
or defended without reasonable cause.
Sect. 10. When an execution against an executor or administrator Scire fucias
for a debt due from the estate of the deceased is returned unsatisfied, tor,'&c., on sug-
the creditor may upon a suggestion of waste sue out a scire facias ^^^^^ °^
against the executor or administrator. If the defendant does not appear r. s. no, §0.
and show sufficient cause to the contrarj^, he shall be deemed guilty See cb. 120, § 3.
of waste, and shall be personally liable for the amount thereof when it
can be ascertained, otherwise for the amount due on the original judg-
ment, with interest from the time when it was rendered; and judgment
and execution shall be awarded as for his own debt.
Sect. 11. When an executor or administrator dies or is removed Death of cxecn-
from office during the pendency of a suit in which he is a party, the suit iug suit! '"^"
may be ])rosecuted by or against the administrator de bonis non in like J'- S- '^g',?''g,o
manner as if it had been originally commenced by or against such last ' '
administrator.
652
PLEADINGS AND PRACTICE.
[Chap. 129.
Proceedings in
case of dcuth of
executor, «tc.,
pending the
suit.
R. S. 110, §S.
Death of execu-
tor, &c., after
judgment.
R. S. 110, §9.
Writ of error
in such case.
R. S. 110, §10.
4 Mass. Gil, 613.
Sect. 12. The proceedings in such case, with respect to the appear-
ance of the administrator de bonis non^ whether vohmtarily or upon a
citation, and with respect to his nonsuit or default if he does not appear,
shall be conducted in the manner prescribed in chapter one hundred and
twenty-seven upon occasion of the death of either party during the
pendency of a suit.
Sect. 13. If an executor or administrator dies or is removed after
judgment is rendered either for or against him, a scire facias may be
sued out either by or against the administrator de bonis non^ and a new
execution may be issued in like manner as it may be done by or
against an original executor or administrator, in case of the death of
his testator or intestate after a judgment rendered for or agauist him;
except that a judgment against the first executor or administrator for
costs for which he was personally Hable, shall be enforced only against
his executor or administrator, and not against the administrator de
bonis non.
Sect. 14. When a judgment is rendered for or against an executor
or administrator, a writ of error may be brought thereon by or against
an administrator de bonis nan in like manner as it might have been
brought by or against the executor or administrator who was party to
the judgment.
CHAPTER 129.
OF PLEADINGS AND PRACTICE.
PLEADINGS.
Forms at Law.
Section
1. Forms of actions.
Declarations.^ (J-c.
2. Forms of declaring at law. Substantial
facts only required. One count for each
cause, but any number of broaclies. What
counts and causes of Jiction may be joined.
Common counts, how used. When ac-
count annexed may be used. Trover abol-
ished. Written instruments, how declared
on. If lost, substance to be stated. Bonds
and other conditional contracts, how de-
clared on.
3. In real actions on mortgage, &c.
4. Declarations, &c., where persons are sever-
ally liable on contracts in writing,
5. Mode of referring to statutes.
6. Plaintiif 'a close to be described in tort, &c.
7. No declaration in writ iu actions of con-
tract or tort unless, Ac.
8. Declaration to be filed first day of court.
9. if not in writ or filed, action discontinued,
unless, &c.
10. BiU of particulars, when required.
Demurrers.
11. Demurrer.
12. causes of, specified. Certificate.
Answers^ Replications, ^c,
13. Answer in abatement, »fec,
14. When answer in abatement overruled.
15. Special pleas iu bar abolished, and general
issue, except, &o.
16. Joint answer.
Section
17. Substantive facts denied, &c.
18. Answers and denials, when and how made.
19. Must declare whether whole or part is de-
nied.
20. Each substantive fact relied on to bo clearly
stated. When answer sets up any legal
bar, &c.
21. Written instruments set out, &c.
22. Conditional obligations set out, &c.
23. No pleading after answer, but by order of
court. Plaintiff may demur, and in certain
cases reply.
24. Further pleading, demurrer, &c. Joinder
in demurrer, itc.
25. Facts occurring since suit. Supplemental
declaration, &c.
26. may be alleged alternatively.
27. Pleadings so construed as to give certainty
&e.
28. Suit when at issue.
PRACTICE.
Indorsement of Process after Entry,
29. Indorsor, when required.
30. removing, &c., another required.
31. may be required in probate cases, &c.
32. if not procured, suit dismissed.
33. may be substituted. Liability.
Ahatement.
34. No writ, &c., abated for circumstantial
errors.
35. If defendant pleads nonjoinder, new de-
fendants joined.
30, 37. Proceedings for that purpose.
38. Judgment, execution, Ac, in such case,
39. Final judgment upon issue of fact.
Chap. 129.]
PLEADINGS AND PRACTICE.
653
Amendments.
Section
40. Amendments, &c., upon mittter in abate-
ment.
41. changing parties, form, &c.
42. alttT judj^mcut.
Defaults,
43. Defendant, when defaulted.
44. Default may be taken off at first term.
45. Defendant to be defaulted hist day, or in
ten days, unless affidavit filed of substantial
defence.
In terrogatories.
4G. In civil actions, parties may file interrog-
atories, (tc.
47. Affidavit to be annexed to interrogatories.
48. Answers to be filed.
40. in writing and on oath.
50. Officers of corporation may be examined.
51. Eacli iuterrog-atory to be answered.
52. Parts of books, itc., called for, containing-
matter not pertinent, may be sealed up, &c.
53. Party not obliged to criminate himself, &c.
54. Irrelevant matter to be expimged. An-
swer to be full, &c.
55. Costs, when answer irrelevant, &c.
5t5. If p:n-ty disobeys order, court may enter
nonsuit or default.
57. Court may allow interrogatories filed, dur-
ing trial.
InterlocKtory Orders.
5S. Court may order statement of grounds of
action, &c.
59. Orders, &c., preparatory to trial when
made.
Agreements of Parties.
GO. Orders may be entered by consent, &c. ;
.'igreements of attorneys to be in writing.
01. Parties may agree respecting continuances,
filing papers, &c.
Offer ofJttdgme-nt.
02. Defendant may ofler judgment. Plaintiff
may accept with costs. Time to elect.
63. Tf plaintiff does not acc(^pt, nor recover
greater sum, defendant allowed costs.
Hearing., Trials Evidence.
Section
04. Demurrers, how heard, determined, &c.
65. frivolous or immaterial mav be overruled,
&c.
C6. Jury trial may be waived, and cause heard
by court,
fir. Exeei)tion8. Xew trial. Review.
08, G9. Trials not to be delayed or postponed,
&c.
70. Local action in wrong county, court may
nonsuit.
71. Counts not proved, itc, may bo stricken out.
72. Pleadings, &p^, not evidence.
73. Ofier of judgment not accepted, not evi-
dence.
"4. Answers to interrogatories may be read at
trial by the other party, &c.
75. One matter in answer not evidence of an-
other.
75. Justification in slander not proof of malice.
77. Truth of alleged libels may be given in evi-
dence, Arc.
78. lu action on judgment by default, court
may allow evidence oi payment.
Arrest of Judgment.
79. No arrest of judgment for cause before ver-
dict, except, &c.
General Provisions.
80. Suggestions entered on record.
81. Kules of evidence not changed, &c.
82. Cause of action; amendment; notice to
parties, appeal, &c.
83. Affidavits. When corporation is a party.
84. Provisions, not applicable to real and mixed
actions, except, &c.
85. Specified sections to apply to civil actions
before justices aud police courts, &c.
86. Interrogatories in actions before police
courts, &c., may be filed, &c.
, Forms
S. J. C.
Forms.
authorized. May
be altered by
[* applies to civil actions before justices of the peace and police courts. See § 85t
t applies to real and mixed actions. See § &4.]
PLEADINGS.
Forms at Law,
*Section 1. There shall be only tliree divisions of personal actions: Forms of ae-
First. Actions of contract, which shall include those heretofore 5^^2,^312, §i.
known as actions of assumpsit, covenant, and debt, except for penalties.
Second. Actions of tort, whicli shall include those heretofore known
as actions of trespass, trespass on the case, trover, and all actions for
penalties.
Third. Actions of reple\in.
Declarations., (Dc.
*Sect. 2. The form of declaring in personal actions shall be accord-
iu2; to the following particulars: —
First. The action shall be named in conformity with the divisions
specified in section one.
Second. No averment need be made which the law does not require
to be ]>roved.
Third. The substantive facts necessary to constitute the cause of
action may be stated with substantial certainty, and without unneces-
sary verbiage.
53*
Form of de-
claring at law.
1852, 312, § 2.
5 Gray, 22, 545
Substantial
facts only re
quired.
4 Gray, 44t).
7 Gray, 185.
654
PLEADINGS — DECLARATIONS, &c. [ChAP. 129,
One count for
each cause, but
any number of
breaches.
What counts
and causes of
action may be
joined.
? Gray, 562.
Common
counts, how
usoil.
7 Gray, 184, 187.
When account
annexed may be
used.
i Gray, 292.
7 Gray, 184, 187.
Trover abol-
ished,
a Gray, 5&t.
Written instru-
ments, liow de-
clared on.
If lost, sub-
stance to be
stated.
1 Gray, 544.
Bonds and oth-
er conditional
contracts, how
declared ou.
In real actions
ou mortgage,
&c.
1852, 312, § 2.
Declarations,
&c., where per-
sons are sever-
ally liable on
contracts in
writing.
ls,-.2, 312, § 3.
4 Gray, 294.
7 Gray, 284.
Mode of refer-
ring to statutes.
U. .S. 100, § 20.
Plaintiff's close
Fourth. One count only need be inserted for each cause of action,
but any number of breaches may be assigned in each count, and when
the nature of the case requires it breaches may be assigned in the aUer-
native. Two causes of action, not arising on the same contract, shall
not be embraced in one count, except the count on an account annexed
as hereinafter provided.
Fifth. Any number of counts for different causes of action belong-
ing to the same division of actions may be inserted in the same declara-
tion. Actions of contract and actions of tort shall not be joined; but
when it is deemed doubtful to which of those classes a j^articular cause
of action belongs, a count in contract may be joined with a count in
tort, averring that both are for one and the same cause of action.
Sixth. The common counts shall not be used unitedly, but each
one of those counts may be used in the form hereinafter prescribed
wlien the natural import of its terms correctly describes the cause of
action.
Seventh. A count on an account annexed, in the form hereinafter pre-
scribed, may be used in an action of contract, when one or more items
are claimed either of which A\ould be correctly described by any one of
the common counts according to the natural import of its terms.
Eighth. In place of the form of declaration heretofore used in the
action of trover, the form hereinafter prescribed shall be used.
Ninth. All written instruments except policies of insurance shall be
declared on by setting out a cojjy or such part as is relied on, or the
legal effect thereof, with proper avennents to describe the cause of
action. If the whole contract is not set out, a copy or the original, as
the court may direct, shall be filed on motion of the adverse party.
Where it may be necessary, the copy so filed shall, if the court so order,
be part of the record, as if oyer had been granted of a deed declared on
according to the common law. No profert or excuse therefor need be
inserted in a declaration. If the iiistrument relied on is lost or destroyed,
or is not in the power of the party who relies on it, he shall state
the substance of it as nearly as he can, and the reason why a copy is
not given.
Tenth. When a bond, or other conditional obligation, contract, or
grant, is declared on, the condition shall be deemed jiart of the obliga-
tion, contract, or grant, and shall be set forth ; breaches relied on shall
be assigned ; and conditions precedent to the right of the ])arty relying
thereon shall be averred to have been performed, or his excuse for the
non-performance thereof stated.
TSect. 3. In real actions founded on mortgage titles, the declaration
shall allege the seisin to be "in mortgage."
*Sect. 4. Persons severally liable upon contracts in writing, including
all parties to bills of exchange and promissory notes, may all or any of
them be joined in the same action. The declaration may include one
count only, describing the several contracts of the defendants when the
same contract was made by each ; or different counts, describing the
different contracts of the defendants when, as in the case of maker and
indorser, the same contract was not made by all. The court shall take
such order for the separate trial of the issues as shall be fimnd most
convenient, and shall enter several judgments according to the several
contracts of the defendants, and issue one or more executions, as the
case may require.
t'SECT. 5. A general statute may be referred to in declarations or
other pleadings by specifying the chapter containing the jirovision re-
ferred to, or mentioning in general terms the subject of the statute, or
refemng to it in such manner as shall indicate with sufficient certainty
the statute intended.
*Sect. 6. In actions of tort for breaking and entering the jjlain tiff's
Chap. 129.] pleadings — demurrers, answers, replications, &c. 655
close, tlie j)l.ace of the alleged trespass shall be designated in the plain- to be described,
tiff's declaration by name, abuttals, or other proper description. is.i9°'l5*§'3.
Sect. 7. In actions of contract and actions of tort, unless an arrest !■* Met. io9, i«.
of the person is made, the writ need not contain a declaration, nor any ne'ed'uot'be in
description of the canse of action in which it is intended to declare, writ, uuiess.&o.
other than the name of the form thereof. >'i~. §'•
tSECT. 8. The declaration may be filed in the clerk's office on or be- to befliod first
fore the day to which the writ is retun^ible, unless an aiTest of the f^K,"!™!?.'
person is made. If there is an attachment of property, the declaration issi, wo, §i.
and bill of particulars, when necessary, if not inserted in the writ, shall ^orayJW.
also be furnished to the defendant or his attorney within three days
after he has demanded the same in writing of the plaintiff or his
attorney.
tSECT. 9. If no declaration has been inserted in the writ or filed in ifnotin\yrit
the clerk's office pursuant to the preceding section, it shall be a discon- discontinued,"
tiuuance of the action, and the defendant or trustee may have judgment "n'.^«?'*^-
for costs : provided, that the court may at any time during the return ISstwoifi".
term of the writ, for good cause shown and ui)on suitable terms, allow J/i™'''^'*'"
the plaintiff to file his declaration, and the action shall not be discon-
tinued if the declaration is filed in accordance ^ith the provisions of
this section.
*Sect. 10. In actions of contract, when either of the common counts BiU of particn-
is used, the plaintiff shall file a l)ill of particulars with his writ when ^X'd!"'""'
the action is entered. The items in such bill shall be numbered con- ik5-', 312, §4.
secutively, and it shall be deemed to be part of the record and be ^ ^^'^^' ^^'
answered or replied to as such.
Demurrers.
Sect. 11. To raise an issue in law, the answer shall contain a state- Demurrer,
ment that the defendant demurs to the declaration or to some one or 7^"rayf4|,y'
more counts therein, as the case may be, and shall assign specially the See §§ «, 65.
causes of demurrer.
tSECT. 12. Demurrers may bo for the following, among other causes of, spe-
*' o> o cified.
causes : — Certificate.
First. That counts in contract and in tort, or either with replevin, ijp,3«, §§21,
or a count in the plaintiff's own right and a count in some represen- 4 Gray, 440.
tative cai>acity, are improperly joined in the declaration. 7 Gray! Is*;
Second. That the declaration or some count thereof; as the case may
be, does not state a legal cause of action substantially in accordance
with the rules contained in this chapter.
Third. That the answer does not state a legal defence to the decla-
ration or some count thereof, as the case may be, substantially in ac-
cordance witli such rules.
The jiarticulars in which the alleged defect consists shall be specially
pointed out, and the attorney, if any, shall certify upon the demurrer, ^
that he is of opinion that there is such probable ground in law therefor
as to make it a fit subject for judicial inquiry and trial, and that it is
not intended merely for delay.
Answers, Replications, &c.
Sect. 13. Any defence to a real, personal, or mixed action, which Answer in
might have been made by plea in abatement, may be made by answer i!j?l™i™|2*.'^
containing such allegations or denials as may be necessary to constitute * Gr^y, ss.
such defence.
Sect. 14. When an answer in abatement is overruled on demuirer, wbcn over-
or an amendment is allowed and made by the ]>laintiff in consequence ™urrer"&o.
of such answer in abatement, the defendant shall then answer, or in a ^*q-j'j^^'~||'^^'
656 PLEADINGS — ANSWERS, REPLICATIONS, &c. [ChAP. 129.
real or mixed action plead, to the merits, within such time as the court
shall order.
Special pleas in SjscT. 1.5. Special plcas in bar as formerly used are abolished, and
^d^nerlifis- the general issue in all except real and mixed actions, and in ]ilace
°"» ' '^'^'^^' *"■ thereof the defendants shall tile an answer to the declaration. In real
18S2' 312I § 12. and mixed actions the defendant may give in evidence under the gen-
1? SI*- fi;^ eral issue all matters which might formerly have been pleaded in bar.
21 Pick. 4M. a .' I
3 Met. 236, 417. 6 Met. 68, 268. 8 Met. 287. 12 Met. 151. 7 Cush. 503. i Gray, S5. G Gray, 107.
Joint answer. tSECT. 16. Two or more defendants making the same defence may
1852,312, §13. answer jointly. Diflereut consistent defences m.ay be separately stated
in the same answer.
Substantive Sect. 17. The answcr shall deny in clear and precise terms every
iSavwifn-i*"' subst.autive fact intended to be denied in each count of the declaration
2 Gray, 521. separately, or shall declare the defendant's ignorance of the fact, so that
344."^"''' " ' " 'he can neither admit nor deny, but leaves the plaintiff to prove the
5 Gray, 457,543. onmp
6 Gray, 494. same.
7 Gray, 184, 208. Sect. 18. In answering the common counts and the count on an
Answers, &c., account annexed, the defendant shall answer specifically every item con-
made, tained in the bill of particulars or account annexed, but he may make one
a^'ray^sV' ^^'^ ^^^ Same allegation or denial concerning any number of items to
5 Gray] 457', 541. wliich sucli allegation or denial is applicalsle, specifying the number of
the items thus answered together when less than the whole. If the
defendant denies that any item is due or payable, or that he owes the
plaintifi" as alleged, he shall state all the suljstantive grounds on which
he intends to rest such denial, and shall specify whether some and what
part or the whole of such item or demand is denied.
must declare Sect. 19. lu all cases in which a denial is made by answer, .affidavit,
or parti8"de-''' or otherwise, concerning a time, sum, quantity, or place, alleged, the
Hied. party denvinff shall declare whether such denial is aiiplicable to every
SGray.ws. ' time, sum, quantity, or place, or not; and if not, what time, sum, quan-
tity, or place, he admits,
to set forth Sect. 20. The answer shall set forth in clear and precise terms each
tiTeVact'rciied substantivc foct intended to be relieil upon in avoidance of the action;
on,&c.^ and when the answer sets up the statute of limitations, the statute of
4'Grray,l2, 448. frauds, or any other legal bar, the defendant shall not be deprived of the
7 G™^' 343' benefit of such defence by reason of his not denying the liicts set forth
in the declaration,
when written *Sect. 21. Written instruments, when relied on in an answer or sub-
reiiert'o'™&c?''' sequent allegation, shall be set out, or copies or the originals shall be
1852, 312, § 2. filed, in the manner prescribed in the ninth clause of section two when
they are declared on.
when condi- *Sect. 22. When a conditional oblig.ation, contract, or grant, is relied
tions, Ac.'"" on in an answer or subsequent allegation, the condition shall be deemed
1852, 312, §2. a pf^j-t of the instrument, and similar averments shall be required in
pleading on the same as are required by the tenth clause of section two.
No pleading af- Sect. 2.3. No further pleading shall be required after the answer,
bToiTrrf '"'' except by order of the court as hereinafter mentioned. But the ]ilaiiitifF
^.T'-.. m.ay demur to the answer; and if the answer contains any new matter
demur, antUn in avoidancc of tlie action, such new matter sliall be deemed to lie denied
certiun oases re- ^,y ^j^p plaintiil"; or the court may on motion of the dei'cndant require
1852, 312, § 19. the pLaintill'to re] )ly thereto, and state whether he admits or denies any,
4 Gray, 117. ^^^^ jj- ^^^^ -n-hat i)aVt thereof The jilaintift' may if he jileases without
such order, at any time before trial, file a replication to the answer,
clearly and specifically stating any facts in reply to the new matter
therein.
Further plead- Sect. 24. The replication may raise an issue in law, by the statement
&l' '^^'^"""' that the pl.aintitf demurs to the answer or to so much thereof as ajiplies
a^Gmv^-w"' ^° *""^ *"" '^^'^'"•5 counts in the declaration, as the case may be, assigning
specially the causes of such demurrer ; and in like manner either party
Chap. 129.] practice — indorsement op writ, abatejient. 657
may demur to the allegation of the other party. But no defect of form
merely, either in the declaration or subsequent allegation, shall be assigned
as a cause of demurrer. The opposite p.arty shall be deemed to join in joinder in de-
demurrer if he shall not amend, which he may do within such time, and "'""er.
upon such terms, as the court may allow.
Sect. 25. An answer or re]ilication may allege flicts which have Facts occurring
occurred since the institution of the suit, and the plaintiff and defendant pipmemlu ale?"
may be allowed by the court to make a su]i]ilemental declaration, i'>™t'o';; *f-
answer, or replication, alleging material facts which have occurred or *""' •'^~ ■
come to the knowledge of the party since the former declaration, answer,
or replication.
Sect. 26. Either party may allege any fact or title alternatively, de- may be ai-
claring his belief of one alternative or the other and his ignorance Jj'f;"' "^''^™*"
whether it be the one or the other. i85->, 312, § 25.
Sect. 27. The allegations and denials of each party shall be so con- pleadings so
strued by the court as to secure as far as possible substantial precision ^""e c'ertaiutv"
and certainty, and discourage vagueness and loose generalities. Any i-c.
substantive tact alleged ^vith substantial precision and certainty, and not i'Gray,"45o?^'
denied in clear and precise terms, shall be deemed to be admitted. Ko -t firay, 60, ««.
party shall be required to state evidence or to disclose the means by 7 Gray, isSi 268.
which he intends to prove his case.
^Sect. 28. A suit shall be deemed at issue when the allegations are Suit> when at
closed, or if it be a real or mixed action, when the plea is filed. is52^3i2,§3i.
PRACTICE.
Indorsement of Process after Entry.
*f Sect. 29. If a plaintiff in any writ, suit, or process at law or in equity indorser, when
after its commencement removes from the state, the court where the i{'.''.s!'<io!'§ 10.
suit is pending, on motion of any other party, shall, and in .all cases when J|- s. 100, §28.
it appears reasonable may, require the plaintiff to procure a sufficient is ii'ck. 220? '
indorser. 21 Pick. 212. 1 Gray, IH. Ill Pick. 379.
*tSECT. 30. If an indorser removes from the state or is insufficient, the removing,
court if it appears reasonable may require the plaintiff to ]irocure a suffi- qi^ilcd'"""^'^ "^"^
cient indorser. i'- *>• '■"'' § is-
t Sect. 31. The supreme judicial court may require an indorser or may be re-
security for the pajTiient of costs in any probate or insolvent case or b"u.'ciis?s^^.
proceeding in that court. it^t'i -i-*-
*tSECT. 32. If the plaintiff fails in any case to procure an indorser if not pro-
according to the order of the court, the suit shall be dismissed and the mis'sed^'"* ^^
defendant recover his costs. i'- S- oo, § 13.
*'Sect. 33. The coui-t in which any suit is pending may permit the may be sub-
name of an indorser to be stricken out and a new and sufficient indorser Liawfity.
to be substituted. Every indorser shall be Uable for costs from the R-S-w,§§ii,i2.
commencement of the suit, in Uke m.anner as indorsers before the entiy 7 Mass! 25. "
of an action. S Met. 149. SccCh. 123, §S0. is Mass. 422.
Abatemeiit.
*tSECT. 34. No ^Tit, process, decl.aration, or other proceeding, in the No writ, &c.,
courts or course of justice, shall be abated, an-ested, quashed, or i-eversed, ?ums?an'tiai'er-
for any circumstantial en-ors or mistakes, when the person and case may jors-
be rightly understood by the court, nor through defect or want of fonn 53101.211. "
only. 4 Gush. 280. OCush. -s. 2 Cush. 491,555.
*tSECT. 35. When the defendant in an action of contract answers in if defendant
abatement the nonjoinder of any other person as defendant, the court Jf.'r'new'd'e""'"
mav, at any time before issue ioined on such answer, allow the plaintiff f''i''ianfs joined.
on such terms as they shall prescribe to amend his declaration by insert- in-,j.'3i2,'§ 27.
ing therein the name of any other person .as defendant, and declaring "Oray,39.
against him jointly with the original defendant.
83
658 PRACTICE — AMENDMENTS, DEFAULTS. [ChAP. 129.
Proceedings *tSECT. 36. The plaintiff' ma}' thereupon take out a new writ in such
feudMits'^ie'' form as the court prescribes, wliich sliall be in the nature of an original
joined. writ of capias and attachment, or of summons, and shall require the new
' defendant to appear and answer as a defendant in the original action.
Upon such writ the new defendant's body may be aiTested, or his goods
or estate may be attached, as upon an original writ ; and the ^\rit shall
be returnable at such time as the court shall order, and be served four-
teen days at least before the return day.
Same subject. *tSECT. 37. Upon the return of such new writ, everj' defendant named
K. S. ioo,§§3,4. ^jjgj.gjj, upon whom service has been made shall be bound to ajijiearand
answer with the other defendants, in the same manner as if he had been
originally made a jjarty in the first writ. If service cannot be made on
a defendant, the action may proceed against the other defendants, in
the manner provided in chapter one hundred and twenty-six.
Judgment, exe- *tSECT. 38. Judgm^it shall be rendered and execution shall issue for
suctic'ase''' '" either party, in the same manner as if the original writ had been issued
E. s. ioo,'§5. against all the defendants; and the plaintiff shall have the same bene-
fit of any attachment or bail upon each of said writs, as if the same had
been made or taken in the usual manner upon the original writ.
Final jud^ient tSECT. 39. If an issue of fact upon an answer in abatement is found
fi?ct°"*™°"^ against the defendant, a final judgment sh.all be rendered against him in
1852, 312, § 28. the manner heretofore required by law in case of a plea in abatement.
24 Pick. 31. i ^ ±
3 Met. 420.
Amendments.
AmendmentB, tSECT. 40. No action shall be defeated by plea or answer in abate-
*'^-'. "P™™*'- ment, if the defect found is capable of amendment, and is amended on
ment. terms prescribed by the court. The defendant may have leave to amend
1852,312,528. ^^ answcr in abatement, or to answer over by special order of tlie court,
for good cause shown, and not otherwise,
changing par- *tSECT. 41. At any time before final judgment in a civil suit, amend-
ties, form, &c. _ .. _ , . , ...
]8^pic'k^4i4^'" fiction, and in any other matter either of fonn or substance in any
1 Met. 553. ' process, pleading, or proceeding, which may enable the plaintiff' to sus-
1 Met! 8°*' tain the action for the cause for which it was intended to be brought, or
12 Met. 206. the defendant to make a legal defence.
13 SXct '^\o 470
2 Cush". 1, 4S6, " 3Cush. 413. 8 Cusli. 271,356. 3 Gray, 71. 5 Gray, 71. See § S2.
492, 555. 4 Cush. 280. 1 Gray, GOO. 4 Gray, 438. 7 Gray, 41, 381.
after judg- *t Sect. 42. After judgment in any civil action, defects or imperfections
k' s''ioo, § 23. in matter of form found in the record or proceedings maybe rectified
10 Jias8.'2or. aiul amended by the court in which the judgment is rendered, or by the
I Cush! 78; 44ii. court to which it is removed by writ of error, if substantial justice re-
quires it, and if the amendment is in affirmance of the judgment.
Defaults.
Defendant, *tSECT. 43. If a defendant being duly ser^'ed with process falls to ap-
k!'s?92;T"'"'' P'^'»r> liis default shall be recorded, the charge in the declaration shall be
taken to be true, and judgment rendered accordingly.
Default raav be *f Sect. 44. If after such default at the first term the defendant appears
takeri off at first j^gfo^g ^hc jury is dismissed, the court may take off" the default and al-
K.'^g.M, §2. low the appearance to be entered upon the defendant's paying the plain-
tiff^'s costs up to that time, or such part thereof as the court shall think
reasonable.
Defendant to be tSECT. 4.5. In all actions at law in the supreme judicial court, or su-
day'^'^rfn't™ perior court, the court .shall at any time after ten days from the return
d^ys, unieas af- day of the Writ, or as of course on the last day of the return term, enter
Chap. 129.] practice — interrogatories to parties. 659
a default as against any defendant on whom legal service has been made, fldavit filed of
unless the defendant or some one in his behalf has filed within said ten feK?!^"""' '^^'
days, or on or before the last day of said term when the same does not iss-', 312, § lo.
exceed ten days, an affidavit that he verily believes that the defendant 7 Gray, '40.
has a substantial defence to the action on its merits, and intends to
bring the same to trial : provided, that upon good cause shown the time
for filing such affidavit may be extended for such reasonable time as the
court may order.
Jnterrof/atorks.
t*SECT. 46. In civil actions the plaintiff may at any time after the en- in civil actions
try of the action, and the defendant at any time after answer, or if it be futc'rroo-atones^
a real or mixed action after plea, and before the case is opened to the ^'i-_^
jury, file in the clerk's office interrogatories for the discovery of facts and if cu'sh''!;, 74.
documents material to the suijport or defence of the suit, to be answered : 9.''''-'' ^?2'
, , , , 1 ^ ' 7 Grar, 417.
on oath by the adverse party. See §§' 74, 75, sc.
t*SECT. 47. To such interrogatories there shall be annexed an affidavit Affidavit to be
of the inteiTogating part}- or his attorney, to the eftect that he has rea- tcrroc'atorie'"
son to believe that the party interrogating will derive some material ben- i.sw,?tu>, §02.
efit in the action from the discoveiy which he seeks, if the same be fairly " '^^' ^^'
made, and that the discoveiy is not sought for the purpose of delay.
t*SECT. 48. Such interrogatories shall be answered and the answers Answers to be
filed in the clerk's office within ten days after the same are notified J^f'sio 5^
to the party interrogated or his attorney, unless upon cause shown either 11 Cush. i6»,537.
before or after the lapse of ten days fmther time is allowed by the
court.
t*SECT. 49. The answers shall be in writing, signed by the party and in writing,
upon his oath. 1^^., 312, 5 ,,5.
t*SECT. 50. If the pai'ty to a suit is a corporation, the opposite party officers of cor-
may examine the president, treasurer, clerk, or any du-ector or other offi- U" examim'dr
cer thereof, in the same manner as if he were a party to the suit. iss-.', 312, § «;.
t*SECT. 51. Each interrogatory shall be answered separately and fully. Each interroga-
The party interrogated may introduce into his answer any matter relc- swcred. ' ™
vant to the issue to which the interrogatory relates. 1^-' ^''^' 5 ""•
t*SECT. 52. When any document, book", voucher, or other writing, parts of books
called for by an interrogatory, contains matters not pertinent to the *"., called for,
subject matter of the action, the answer may so state, and that such ter not pert i-
part has been sealed up or other^\nse protected from examination ; and g^/jf,""*' ^
thereupon such part shall not be inspected by the party Lnten-ogating ; iS52, 312, §'o8.'
but such party may apply to the court and obtain an order to have
liberty to inspect the part so protected from examination, or so much
thereof as the court shall find on hearing the parties, or if necessary
by inspecting the part so protected, was improperlj' withheld and
concealed.
t*SECT. 53. The party interrogated shall not be obliged to answer a Party not
question or jiroduce a document the answering or jjroducing of which "natf himsef™
would tend to criminate himself, or disclose his title to any property the *^^-^
title whereof is not material to the trial of the action in the course of 2 Gray,~538.
which he is interrogated ; or to disclose the names of the witnesses by
whom or the manner in which he proposes to prove his own case.
t*SECT. 54. If an answer contains irrelevant matter or is not full and irrelevant mat-
clear, or if an interrogatory is not answered, and the ]iarty interrogated Jfu'n*°ed!' ''''
refuses to expunge or amend, or to ^answer a particular inten'ogatory. Answer to be
the court or any justice thereof may on motion order such irrelevant isai, 312, § 70.
matter to be expunged, or such imperfect answer to be made ftill and
clear, or such interrogatory to be answered, within such time as may
seem reasonable.
'*Sect. 55. When .an answer is adjudged irrelev.ant or insufficient, or Costs when an-
when a party is ordered to answer an interrogatory, such order may be ^'^" "'•''^ ^^™ >
660 PRACTICE — AGREEMENTS OF PARTIES, OFFER OF JUDGMENT. [ChAP. 129.
1852, 312, § n.
Nonsuit, &c.,
if party diso-
beys order.
IJSJ, 312, § 72.
3 Gray, 115.
7 Gray, 417.
Court may al-
low interrog^a-
tories filed, dur-
ing trial.
1852, 312, § 74.
made respecting cost.s, either in tlie action or otherwise, as the court
may direct by general rules or by a special order in each case.
*tSECT. 56. If a party neglects or refuses to expunge, amend, or an-
swer, according to the requisition of this chapter, the court may enter
a nonsuit or default as the case may require, and proceed thereon accord-
ing to law.
*tSECT. 57. During the trial of any action tlie court may allow inter-
rogatories to be filed, to be answered forthwith, or with as little delay
as j>racticable, and may suspend the trial for the purpose of having the
same answered ; but such interrogatories must be accompanied by an
affidavit stating the reasons wliy they were not filed earlier; and unless
the court upon the whole matter finds that due diligence has been used,
the interrogatories shall not be filed.
Court may or-
der statement
of grounds of
action, &c.
1852, 312, §4.
3 Gray, 200.
Orders, &c.,
preparatory to
trial, when
made.
1852, 312, § 35.
Interlocutory Orders.
*Sect. 58. The court may in all cases order either party to file a state- '
meiit of such particulars as may be necessary to give the other party,
and the court, reasonable knowledge of the nature and gi'ounds of the
action or defence.
tSECT. 59. Orders allowing amendments before trial, or a supple-
mental answer or replication, or enlarging time, and any other inter-
locutory order necessary to prepare the case for trial, may be made by
the court while in session, or any justice thereof, in any county, either
in terra time or vacation ; but the several courts shall prescribe such
fixed rules respecting notice, the times and places for motions at cham-
bers, pnd other matters, as they shall from time to time deem necessary.
Orders may bo
entered by con-
sent, &c.
1852, 312, § 30.
Parties may
agree respect-
ing continu-
ances, filing pa-
pers, &c.
1852, 312, § 88.
Agreements of Parties.
tSECT. 60. Any of the orders mentioned in the preceding section
may be entered by consent in writing signed by the parties or their
attorneys. All agreements of attorneys touching any suit or proceeding
shall be in writing; otherwise they shall be of no validity.
tSECT. 61. If the parties agree to continue a case without cost until
the next term it shall be continued accordingly ; but the court may by
a general or special order regulate the place on the docket in which the
case shall stand at the next term. Parties may make agreements re-
specting amendments and the time of filing papers, A\-hich agreements
shall be equivalent to an order of the court to the same eflect.
Defendant may
ofler judgment.
Plaiutiflf may
accept, with
costs.
Time to elect.
1852, 140, § 1.
See § 73.
If pl.iintiff does
not arcept, nor
recover j^reater
sum, defendant
allowed costs.
18.02, 140, § 3.
See § 73.
Offer of Judgment.
*Sect. 62. "When a defendant in an action at law or suit in equity,
wherein damages only are sought to be recovered, offers in court and
consents in writing to be defaulted, and that judgment shall be rendered
against hiiu, as damages for a sum therein specified, the same shall be
entered of record together with the time when it was tendered ; and
the plaintiff may at any time within ten dajs after he has received no-
tice of such offer and consent accept the ofier, and the court shall render
judgment accordingly, with costs to the date of the notice. If, after
such notice, the court shall for good cause grant the plaintiff a further
time to elect, he may signify his acceptance within the time allowed,
and judgment shall be rendered 'as if the acceptance had been witliiu
ten days.
*Sect. 63. If the ]ilaiutiff does not elect to accept such offer, and
shall not recover a greater sum than the sum so offered, not including
interest on the sum recovered in damages from the date of the offer,
the defendant shall have judgment for his costs after said date, for
Chap. 129.] practice — hearing, trial, evidence. 661
which execution shall issue, and the plaintiff, if he recovers damages,
shall be allowed his costs only to the date of the offer.
Hearing, Trial, Evidence.
^Sect. 64. Every demurrer may in the first instance be heard by a Demurrers,
single justice, ami if taken in term time during the same term if practi- }e°rSLta«f''&cr
cable; and Iiis decision as to the misjoinder of counts shall be final, an isos, sia, § l's.
amendment being allowed as herein provided. But if the cause of de- 7Grayl427.
murrer is tliat the facts do not in point of law support or answer the
action, and the party against whom the decision is made does not pray
for leave to amend, such decision shall not be final, but the demurrer
may be further heiu-d upon ajtjieal or otherwise, as is jirovided in respect
to such questions of law. When a demurrer is sustained, overruled, or
withdrawn, the court shall make such order as may be fit, respecting
the filmg of an answer or replication, or a trial of the facts.
tSKCT. 65. If a demurrer appears to the judge wlio first hears the frivoiouBor
same to be frivolous, immaterial, or intended for delay, he may besides nlay'^be over-
overruUns: it order the partv to plead, answer, or reijlv, notwithstandinsf ruled, &c.
such party claims the right to be further heard by appeal or otherwise 4 Gray,~G2.
on his demuiTer; and thereupon the case shall proceed to a final judg-
ment as if no demurrer had been filed, and execution may be awarded
or stayed on such terms as the court may deem reasonable, as in cases
of exceptions adjudged frivolous.
tSect. 66. In all civil actions trial by jury may be waived by the eon- .Jury trial may
sent in writing of the several parties or their counsel filed with the clerk cauT.rhea-'d'by
at any time before the trial, and the cause shall thereupon be heard and ™y,"^
determined by the court, and judgment entered as in case of verdict ''"
by a jury.
TSect. 67. Either party maj' file exceptions to the decisions and nil- Exceptions.
ings of the court ujjon matters of law arising upon such trial, move for view.*"*'' ^^
a new trial for mistake of law or for newly discovered evidence, and be issr, 267, §2.
entitled to review, in the same manner and with the same effect as upon
trial by jury.
t Sect. 68. A trial shall not be delayed for want of a reply to the Trials not to be
defendant's answer, unless by special order of the court; nor shall an poned^Vc ''"^''
agreement of parties respecting filing amendments or papers operate to is52, 312, §§19,
postpone the trial of an action beyond the time at which by the rules **■
of the court it would be tried.
*tSECT. 69. A trial shall not be delayed for the reason that interroga- Same subject,
tories have been filed and the time allowed for answering the same has i**52, 312, § m.
not elapsed, but the court may allow an examination during the trial
as is herein before provided.
tSECT. 70. When it appears on a trial that a local action has been Local action in
brought in an erroneous venue, the court mav of its own motion order a "rong county.
- 1 11 1 1 ' 11 1 1 11-1 *^ourt mav non-
nonsuit to lie entered, unless gootl cause shall be shown whv the trial suit,
should be allowed to proceed. S«r'ch.~i33f§'i4.
Sect. 71. If the plaintiff foils to give evidence at the trial in support Counts not
of any count in the declaration not wholly or jiartlj- confessed by the mT be' stricken
answer, it shall forthwith be stricken out. And the court may, either out.
of their own motion or upon motion of a party, require unnecessary *^ ' ■■
counts and st.itements to be stricken out of a declaration or any subse-
quent proceeding, and may impose reasonable terms.
*fSErT. I'l. Neither the declaration, answer, nor any subsequent alle- Pleadings not
gation, shall be deemed evidence on the trial, but allegations only where- i^^™Si'§;5.
by the party making them is bound.
*tSECT. 73. Xo offer or consent, made in pursuance of sections sixty- offer of judg-
two and sixty-three, which is not accepted, shall be evidence against the "epted "uorevi-
party making the same, either in any suljsequent proceeding in the dence.'
56
662
PBACTICE — ARREST OP JUDGMENT, GENERAL PROVISIONS. [ChAP. 129.
1852, HO, § 3.
Answers to in-
terroo^iitories
mav Be read at
tria'l, &c.
1832, 312, § r3.
11 Cush. 20, 74.
3 Gray, 115.
One matter in
anawei* not evi-
dence of anotli-
er.
11. S. lOO, § 18.
1M2, 312, § "5.
5 .S. & li. -111.
.Tustilication in
[^lander not
proof of malice.
K. S. 100, § 19.
15 Mass. 4s.
■ 1 Pick. 1.
Tnitli of alleged
liljels may be
"■iven in evi-
ueuce, &c.
1»35, 396.
In action on
judgment by
default, court
may allow evi-
dence of pay-
ment, &c.
1S59, 185.
action or suit in which such offer is made, or in any other action
or suit.
*tSECT. 74. The answer of each p.irty to interrogatories filerl may be
read at the trial by tlie other jiarty as evidence ; the party interrogated
may require that the wliole of the answers upon any one subject m.atter
inquired of shall be read, if a part of them is read ; but if no part is
read, the party interrogated shall in no way avail himself of his exam-
ination, or of the tact that he has been examined.
*tSECT. 75. When a defendant answers two or more matters in his
defence, no averment, confession, or acknowledgment contained in one
of them shall be used or taken as evidence against him on the trial of
any issue joined on any other of them.
2 N. H. K. 89. 13 Met. 253. 7 Cush. 585.
*Sect. 76. If the defendant in an action for slander or publishing
a lil)el, justifies that the words sjioken or ]iublished were true, such
allegation, though not maintained by the evidence, .shall not be of itself
proof of the malice alleged in the declaration.
*tSECT. 77. In every prosecution and in eveiy civil action for writing
or for jiublishing a libel, the defendant may upon the trial give in evi-
dence the truth of the matter contained in the publication charged as
libellous ; and such evidence shall be deemed a sufficient justification,
unless malicious intention shall be proved.
Sect. 78. In any action ujjon a judgment obtained by default, and
without the knowledge of the defendant, the court may in its discretion
and upon such terms as it deems reasonable, allow the defendant to
show in defence any payment, satisfaction, or extinguishment of the
claim, ])rior to the obtaining of such judgment, or any matter of fraud,
which in either case he might have shown upon a writ of review in the
original suit : provided., such action is brought within six years from the
rendition of such judgment.
No arrest of
judgment for
cause before
verdict, except,
&c.
1852, 312, § 22'.
1 Gray, 172.
4 Gray, 2iM.
7 Gray, 543.
Arrest of Judgment.
*fSECT. 79. A judgment shall not be aiTCsted for any cause existing
before the verdict, unless the same affects the jurisdiction of the court.
And when the defendant has appeared and answered to the merits of
the action, no defect in the writ or other process by whicli he has been
brought before the court, or in the service thereof, shall be deemed to
affect the jurisdiction of the court.
•Suggestions en-
tered on record.
K. S. 93, § 24.
Rules of evi-
dence not
changed, &c.
1852, 312, § 0.
2 Gray, 505.
Cause of action,
amendment,
notice to par-
tics, appeal, &c.
1852, 312, § 33.
General Provisions.
*tSECT. 80. When a change hapjiens in a suit afler its commence-
ment, the court may allow such suggestions to be entered on the
record as circumstances may require.
*tSECT. 81. The provisions of this chapter shall not be deemed to
change any rule of evidence, the measure of damages, the jurisdiction
of any court, or the locality of any action, except so far as the same is
lierein sj)ecially provided for.
*tSECT. 82. The cause of action shall be deemed to be the same for
which the action was brought, when it shall be made to appear to the
court that it is the cause of action relied on by the plaintiff when the
action was commenced, however the same may be misdescribed ; and
the adjudication of the court allowing an amendment shall be con-
clusive evidence of the identity of the cause of action. But no sub-
sequent attaching creditor, or purchaser of property attached in the
suit, or bail, or any ])erson other than the parties to the record, shall
be bound by such adjudication, unless he has had due notice of the
application for leave to amend and opportunity to be heard thereon,
Chap. 129.] pleadings and practice — forms. 663
according to an order of notice to tliat effect to be issued by the court
upon ajjplication of tlie plaintiflj and such third parties shall have the
right to except or appeal.
*tSECT. 83. When a party to any suit or proceeding under this chap- Affidavits.
ter is a corporation, all precepts, answers, replications, or other papers, ^on'^^ a°par ".
requiring the signature or oath of the party, may be signed or sworn issa, 3i^, § su.
to in behalf of the corporation by some officer or agent thereunto
specially authorized.
Sect. 84. None of the foregoing provisions, except those contained Provisions not
in sections three, five, eight, nine, twelve, sixteen, twenty-eight, twenty- "^^i and mixed
nine, thirty, thirty-one, thirty-two, thirty-thi-ec, thirty-four, thirty-five, actions, except,
thirty-six, thirty-seven, thirty-eight, thirty-nine, forty, fortj'-one, forty- issb, 312, § 5i.
two, forty-three, forty-four, forty-five, forty-six, forty-seven, forty-eis;ht. See §§ noted
forty-nine, fifty, fifty-one, fifty-two, fifty-th'ree, fii"ty-four, fifty-five, fifty- *^"' ^■
six, fifty-seven, fifty-nine, sixty, sixty-one, sixty-four, sixty-fi\-e, sixty-
six, sixty-seven, so much of sixty-eight as relates to agi'cement of par-
ties, sections sixty-nine, seventy, seventy-two, seventy-three, seventy-
four, seventy-five, seventy-seven, seventy-nine, eighty, eighty-one, eighty-
two, eighty-three, and eighty-seven shall be deemed ajjplicable to real
or mixed actions, unless special!}- named.
Sect. 85. Sections one, two, four, five, six, ten, twenty-one, twenty- Specified sec-
two, twenty-nine, thirty, thirty-two, thirty-three, thirty-four, thirty- ^^!!^alMoul^b^-
five, thirty -six, thirty-seven, thirty-eight, forty-one, forty-t\\'o, foity- fore justices and
three, forty-four, forty-six, forty-seven, forty-eight, forty-nine, fifty, J™,'"™" ^"
fifty-one, fifty-two, fifty-three, fifty-four, fifty-five"; fifty-six, fifty-seven, isfls, 312, § 87.
fifty-eight, sixty-two, sixty-three, sixty-nine, seventy-two, seventy-three, J'^ug^i""*'^''
seventy-four, seventy-five, seventy-six, seventy-seven, seventy-nine,
eighty, eighty-one, eighty-two, eighty-three, eighty-six, and eighty-
seven, only, of this chapter shall apply to civil actions before police ,
courts and justices of the peace.
*Sect. 86. In actions before such jiolice courts or justices of the interrog-atories
peace, the interrogatories and answers jirovided for in sections forty- (■"re'^poijce
six, forty-eifjht, and sixty-nine, mav be filed before said courts or iustices eourts, &c.,
<-• 1 Vri "^ 1 Ji T I -^1 .. t *■ :l .1 may be filed, &0.
respectively. Ihey may be nled by either party, .it any tune after tlie isi2, 312, § uo.
commencement of the action, and the answers shall be filed within such
time as such courts or justices of the peace shall respectively order.
*tSECT. 87. The forms contained in the schedule annexed to this Forms author-
chapter may be used in the several courts, subject to be changed and JJ^Ji by"^. jtci
modified from time to time by the supreme judicial court, by general i»52, 312, §ttt.
rules made for the purpose.
SCHEDULE OF FORMS.
Forms of Declarations in Actions of Contract,
Commencement. To answer to A. B. of , m an action of contract. Forms of dccla-
K the plaintiiF is a minor and sues hy proc/iein ami, as administrator, or in any spe- rations,
eial cliaracter, it may be stated according to the established form. As it is not neces-
sary to insert the declaration in the writ, it shoidd be entitled, when filed separately,
in the following form : —
A. B.
vs.
Middlesex, Sup. Ct.
Plaintiff's declaration.
CD.
Count for money had and received. — And the plaintiff says the defendant owes him
one hundred dollars for money received by the defendant to the plaintiff's use; —
Money lent. — And the plaintiff says the defendant owes hini one hundred dollars for
money lent by the plaintiff to the defendant ; —
Goods sold. — Also that the defendant owes him dollars for goods sold by the
plaintiff to the defendant ; —
Work. — Also that the defendant owes him dollars for work done by the plain-
tiff for the defendant ; —
664 PLEADINGS AND PRACTICE — FORMS. [CHAP. 129.
Forms of Worlc and materials. — Also that the defendant owes him dollai's for work done
declaratiouB. and materials found by the plaintiff for the defendant ; —
Board. — Also that the defendant owes him dollars for board and lodging ftir-
nished by the plaintiff for the defendant ; —
Freight. — For the carriage of certain goods by the plaintiff for the defendant ; —
Warehouse room. — For warehouse room fui'nished by the plaintiif for the storage of
certain goods of the defendant ; —
Horse and carriage hire. — For the use of a certain horse and carriage hired of the
plaintiff by the defendant ; —
Use and occupation. — For the use and occupation of a certain tenement hired of the
plaintiff by the defendant ; —
Insimul computassent. — For the balance found due to the plaintiff by the parties on
accounting together ; —
Account annexed. — And the plaintiff says the defendant owes him fifty dollars, ac-
cording to the account hereto annexed.
Payee of Note against Maker.
And the plaintiif says the defendant made a promissory note payable to the plaintiff
or order, a copy whereof is hereto annexed. And the defendant owes the plaintiff the
amount of said note and interest thereon.
On Note payable to Bearer.
And the plaintiff says the defendant made a promissory note, a copy of which is
hereto annexed, payable to one G. H. or bearer. And the plaintiif is the bearer of
said note, and the defendant owes him the amount of said note and interest thereon.
(If payments are indorsed on the note, the declaration should be varied as follows :
"A copy whereof, with the indorsements thereon, is hereto annexed, and the defend-
ant owes the plaintiff the balance of said note and interest thereon."
If payments have been made which are not indorsed on the note, the allegation
should be varied accordingly.)
By Indorsee against Indorser,
And the plaintiff says that one C. D. made a promissory note, a copy of which with
• the indorsements thereon is hereto annexed, payable to said E. F., or order ; and said
E. F. indorsed the same to the plaintiff; and payment of said note was duly demanded
of said C. D., who neglected to pay the same, and due notice of its non-payment was
given to said E. F. ; and said E. F. owes the plaintiff the amount of said note and in-
terest thereon.
On a Bond with Condition to pay certain Debts of the Plaintiff, and to provide for his
Support,
And the plaintiff says the defendant executed to him a bond, a copy whereof is here-
to annexed :
And the plaintiff says he owed to one O. P. the sum of one hundred dollars on a
promissory note (describing it) which the defendant neglects to pay :
Also that he owed to one R. S. one hundred dollars, according to the account here-
to annexed, which the defendant neglects to pay :
Also that the defendant neglects to provide clothing for the plaintiff :
And the plaintiff has requested the defendant to pay said debts, and jirovide for his
support as mentioned in said bond —
(To be inserted, if proof of the request is necessary.)
By Grantee against Grantor in a common Deed of Warranty, for Breaches of Covenant,
And the plaintiff says the defendant delivered to him a deed, a copy whereof is here-
unto annexed :
And the defendant was not seised in fee of a part of the land described as follows,
(describing it,) but the same was held adversely by one L. M. ; and the residue of said
land was not free from encumbrances, but was subject to a mortgage to one S. T., to
secui'e the payment of six hundred dollars :
And the defendant has not warranted and defended the premises against the rightful
clauns of all persons, but one W. S. had a right of dower therein, and has compelled
the plaintiff to assign the same to her.
On an Award,
And the plaintiff says the parties by their agreement in writing, a copy whereof is
hereto annexed, referred the matters therein mentioned to arbitrators ; and the arbitra-
tors have made an award thereon in writing, a copy whereof is hereto annexed.
(Aver performance of condition by plaintiff, when necessary to be proved, and the
non-performance by defendant, which is relied on.)
Chap. 129.] pleadings and practice — forms. 665
(If it is for the mere payment of money aver as follows : — ) Forms of
And the defendant owes the plaintiff the amount of said award. declarations.
On a Promise to pay the Debt of another.
And the plaintiff says that one E. F. owed him the sum of for , and the
plaintiff was about to sue the said E. F. to recover the same :
And in consideration that the plaintiff would forbear to sue said E. F., the defendant
made an agreement to pay the same to the plaintiff, a copy whereof is hereto annexed ;
and the plaintiff did forbear to sue said E. F., and the defendant owes him said sum.
On an Agreement to convey Land on a certahi Day, Plaintiff to pay One Hundred Dollars^
Cash, and give a Note for Four Hundred Dollars, secured by a Mortgage of the Land.
And the plaintiff says the defendant made an agreement with the plaintiff, in writ-
ing, a copy whereof is hereto annexed :
And on the day of , the plaintiff tendered to the defendant one hun-
dred dollars, and also a note for four hundred dollars, (describing it,) and a mortgage
of said land, to secure the payment of said note, and demanded of the defendant a
conveyance of said land, (following the terms of the agreement.)
For Breach of Promise of Marriage.
And the plaintiff says that she and the defendant mutually promised to marry each
other.
And she has always been ready to marry the defendant, but the defendant refuses to
perform liis promise.
Non-Delivery of Goods sold.
And the plaintiff says he purchased of the defendant the following goods, viz. :
for tlie sum of one hundred dollars, to be paid therefor on delivery thereof ;
and the defendant promised to deliver the same on the day of , at the
defendant's store m :
And on said day the plaintiff demanded said goods at said store, and tendered to the
defendant said sum of one hundred dollars in payment of the same :
And the defendant refused to deliver the same to the plaintiff.
On Policies of Insurance.
1. On a ship for a total loss.
And the plaintiff says the defendants made to him a policy of insurance, a copy of
which is hereunto annexed, for the sum of ten thousand dollars, on the ship John,
against the perils of the seas, and other perils therein mentioned, in a voyage from
Boston to Cadiz, in Spain, and at and from Cadiz to her port of discharge in the United
States ; and while proceeding on said voyage, the ship was wrecked and totally lost
by the perils of the seas ; and the defendants had notice of said loss on the day
of , and were bound to pay the amount of said loss to the plaintiff within sixty
days after said notice ; and the defendants owe the plaintiff therefor said sum of ten
thousand dollars.
2. For a partial loss and contribution to a general average.
(State, as in the last count to the description of the voyage inclusive.)
And in said policy the defendants agreed that in case of any loss or misfortune to
said ship, it should be lawful for the plaintiff and his agents to labor for, and in the
defence and recovery of, said ship, and that the defendants woidd contribute to the
charges thereof in proportion as the sum assui'ed by them should be to the whole stnn
at risk :
And while proceeding on said voyage said ship was by the perils of the seas dis-
masted, and otherwise damaged in her hull, rigging, and appurtenances, and it was
necessary, for the preservation of said ship and her cargo, to throw over a part of her
cargo, and the same was thrown over for that purpose, and the plaintiff was obliged
to expend the sum of two thousand dollars for repairing s.aid ship at Cadiz, and the
sum of five hundred dollars as a contribution for the loss occasioned by throwing over
a part of said cargo ; and the ship suffered much other damage that was not repaired
at Cadiz ; — and the defendants had notice of said loss and charges, on the day
of , and were bound by the terms of said policy to pay the same within sixty
days after suuh notice, and the defendants owe the plaintiff therefor the sum of
dollars.
For a total loss of cargo by fire :
And the plaintiff says the defendants made to him a policy of insurance for the stnn
of ten thousand dollars, on the cargo of the brigantine William, against the perils of
fire and other perils therein mentioned, at and from Boston, and in a voyage from
thence to Hamburgh, or any other port or ports in the north of Europe ; and whUe
said brigantine was proceeding on said voyage, the cargo was totally destroyed by fire ;
56* 84
666 PLEADINGS AND PRACTICE — FORMS. [ChAP. 129.
Forms of tind the defendants had notice of said loss on the day of , and were
dccIarationB. l;oimd by the terms of said policy to pay the plaintiff the amount of said loss ; and the
defendants owe ths plaintiff therefor the sum of ten thousand dollars.
Forms of Declarations in Actions of Tort.
Beginning. — To answer A. B., of , in an action of tort.
Trover. — And the plaintiff says the defendant har. converted to his O'mi use one
horse, the property of the plaintiff, (or the goods mentioned in the schedule hereto an-
nexed.)
(The ad damnum is a sufficient allegation of damage in all cases in which special
damages are not claimed.)
■ Deceit, — Ajid the plaintiff says the defendant sold to him ten bags of coffee, and to
induce the plaintiff to buy the same the defendant falsely represented to him that said
coffee was the property of the defendant ; and the plaintiff believing that said repre-
sentation was true, was thereby induced to purchase and did purchase said coffee, and
paid therefor to the defendant the sum of one hundred dollars ; and said coffee was
not the property of the defendant, which the defendant then knew, but was the
property of one A. S., who has taken the same from the plaintiff.
And the plaintifl' says the defendant sold him a horse, for which the plaintiff paid
him one hundred dollars. And to induce the plaintitf to buy said horse the defendant
falsely represented to the plaintiff that said horse was sound, so far as the defendant
knew ; and the plaintiff, believing that said representation was true, was thereby
induced to buy, and did buy, said horse ; and said horse was not sound, but had a
certain disease called , which the defendant then knew.
And the plaintiff says the defendant, to induce the plaintiff to sell property on credit
to one S. C, falsely represented to the plaintiff in writing, that said S. C. was a man
possessed of a large property and able to pay his debts, (a copy of which writing is
hereto annexed.) And thereupon the plaintiff, believing said representation to be
true, was induced to sell, and did sell, to said S. C, the goods mentioned in the
account hereto annexed, and gave the said S. C. credit for the price of said goods,
being dollars, for the term of six months fi'om the day of . And
said S. C. was not a man of property, nor able to pay his debts, but was insolvent,
which the defendant then knew. And the plaintiff has not been paid for said goods,
and is unable to obtain payment therefor of said S. C.
Negligence of Railroad Corjiorations. — And the plaintiff says the defendants are a
corporation owning a railroad between A. and B. ; that plaintiff was a passenger on
said railroad, and, by reason of the insufficiency of an axle of the car in which he was
riding, the plaintiff was hurt ; that defendants did not use due care in reference to said
axle, but plaintiff did use due care.
(This form may be varied to adapt it to many cases, simply by changing the alle-
gation as to the cause of the accident. It is not intended to restrict a party to the
statement of one cause, if there were several concurrent causes, and if the plaintiff is
in doubt which of several different causes occasioned the accident, he may, under
section twenty-six, so declare.)
Negligence of Toun. — And the plaintiff says there is in the town of a public
highway leading from to , which said defendants are bound to keep in
repair ; — that the same was negligently suffered by defendants to be out of repair,
whereby the plaintiff, travelling thereon and using due care, was hurt.
Obstructing Way. — And the plaintiff says he owned a tract of land, (describing it,)
and there was a way leading to the same from, (here mention the other terminus,)
which the plaintiff had a right to use as a foot-way and carriage-way ; and the
defendant erected a fence across said way and placed stones in the same, so that the
plaintiff could not use the same.
Immoderate Riding. — And the plaintiff says the defendant hired of him a horse to
ride from Boston to Cambridge, and from thence back to Boston, in a proper manner ;
and the defendant rode said horse so immoderately that he became sick and lame, and
was greatly injured in value.
5 Gray, 2.'?. Slander. — And the plaintiff says that the defendant publicly, falsely, and mali-
0 Gray, 49j. ciously, accused the plaintiff of the crime of perjury, by words spoken of the plaintiff
8 Gray, ICI. substantially as follows. (Here set forth the words — no innuendoes are necessary.)
(If the natural import ol the words is not intelligible without further explanation,
or reference to facts understood but not mentioned, or parts of the conversation not
stated, in either of those cases, after setting forth the words, the declaration should
contain a concise and clear statement of such things as are necessary to make the
words relied on intelligible to the court and jury in the same sense in which they were
spoken. This rule is applicable to actions for written and printed, as well as oral,
slander.)
Libel. — And the plaintiff says the defendant caused to be published in a newspaper
(describing it) a false and malicious Hbel concerning the plaintiff, a copy whereof is
hereto annexed.
(Or if it be a picture, it may be described.)
Chap. 129.] pleadings and practice — forms. 667
D-espass to Person. — And the plaintiff says the defendant made an assault upon him, Forms of
and struck him on his head, and kept him imprisoned for the space of one day. declarations.
Trespass to I^nd. — And the plaintiff says the defendant forcibly entered the plain-
tiffs close, (describing it,) and ploughed up the soil, &c., and took and carried away
fifty bushels of the plaintiff's corn there being, and converted the same to his oivn use.
Penalfij. — And the plaintiffs say they had a turnpike-road, (describing it,) and the
defendant passed on said road with a wagon, on which he carried a load of more than
forty-five hundred pounds, and the felloes of said wagon were less than three inches
and a half wide, whereby the defendant became liable to pay the plaintiffs three times
the legal toll therefor, and the legal toll therefor is the sum of .
And the plaintiff says the defendants had a turnpike-road, (describing it,) and the
plaintiff was passing over the same and through a turnpike-gate thereon, (describing
it,) in a wagon drawn by one horse ; and the defendants' toll-gatherer then demanded
and received of the plaintiff fifty cents for toll, for passing through said gate irith said
horse and wagon, the legal toll for passing as afore>aid being only ten cents, whereby
the defendants have forfeited to the plaintiff a sum not exceeding one hundred dollars.
And the plaintiffs say they had an aqueduct, (describing it,) and the defendant
maliciously injured said aqueduct by cutting off one of the pipes thereof, whereby the
defendant became liable to pay the plaintiffs treble the amount of the damage thereby
sustained by the plaintiffs ; and the amount of said damage was ten dollars.
And the plaintiffs say that the twentieth day of October last was the day of their
cattle show and exhibition ; and that by their officers they defined and fixed bounds
of sufficient extent for the erection of cattle-pens and yards, and for convenient
passage-ways to and about the same, within which bounds no persons were permitted
to enter and pass unless in conformity with the regulations of said officers : Of all
which the defendant had notice ; and after said notice the defendant did enter and
pass within said bounds, contrary to said regulations, whereby he has forfeited to the
plaintiffs a sum not exceeding five dollars.
Answers in Abatement. Forms of
AT! 1 answers.
^;^f- 1 Middlesex, Sup. Ct.
p -A I Defendant's Answer.
Coverture of Plaintiff. — And the defendant comes and says that when the plaintiff's
writ \\as sued out, the plaintiff was a married woman, and that E. F., her husband,
was then alive, and therefore he ought not to be held to answer to the plaintiffs ^\T\^.
Nonjoinder. — And the defendant comes and says that if he is indebted to the plain-
tiffs for the goods mentioned iu their bill of particulars, he is indebted to them jointly
with one G. H., who is still alive, and ought to be sued with him in the writ, and
therefore he ought not to be held to answer to the plaintiffs writ.
Misnomer. — And the defendant comes and says the plaintiffs name is John Stiles,
and not James Stiles, and therefore he ought not to be held to answer to the plaintiflTs
writ.
Coreiinre of Defendant. — And the defendant come3 and says that when the plain-
tiffs writ was sued out, she was and still is a married woman, and that J. H., her
husband, was then alive, and therefore she ought not to be held to answer to the
plaintiff's writ.
Ansteers in Actions of Contract.
^^^^- 1 Middlesex, Sup. Ct.
p -A I Defetidant's Answer.
Honey liad and received. — And the defendant comes and upon his personal knowl-
edge denies that he received the money mentioned in the plaintiffs bill of particulars,
or any part thereof :
(Or, if tlie case be so) admits that he received the money mentioned in the plaintiffs
declaration, but denies that he received it to the plaintiffs use.
And the defendant comes and says, upon his personal knowledge, that he received
the money mentioned in the plaintiffs bill of particulars, but upon his information and
belief he denies that he received the same or any part thereof to the plaintiffs use.
And the defendant comes and upon his personal knowledge denies that he has
received to the plaintiffs use the money mentioned in the plaintiffs bill of particulars,
except the sum of fifty dollars.
Statute of Limitations. — And the defendant comes and answers that the cause of
action mentioned in the plaintiffs writ did not accrue within six years before the suing
out of the plaintiffs wTit.
Faijment. — And the defendant comes and answers that he has paid the plaintiff the
sum of dollars, which was the full amount of the account stated in the plain-
tiffs bill of particulars.
K there are several items, add — And he annexes hereto a bill of particulars of said
pa5Tncnt.
Account annexed. Goods sold and delivered. — And the defendant comes and answers
668 PLEADINGS AND PRACTICE — FORMS. [ChAP. 129.
Forms of OS follows, viz. : as to the first ten items of the plaintiff's bill of particulars, upon his
answers. personal knowledge he denies that the plaintiff sold and delivered the same to the
defendant.
As to the eleventh item, upon his personal knowledge he denies that the price was
to be more than ten dollars.
Work. — As to the twelfth item, he is ignorant personally, and by information and
belief, whether the plaintiff performed the day's labor there charged or not, and also
of the price thereof, if any, so that he can neither admit nor deny the plaintiffs
allegation, but leaves the jilaintiff to prove the same.
Answers to a Promissory Note.
Promissory Note. — And the defendant comes and answers as follows : —
He denies that he made the promissory note mentioned in the plaintiffs first count :
Minority. — And as to the note mentioned in the plaintiffs second coiuit, he says
that at the time of making the same he was a minor under the age of twenty-one years.
Duress. — And as to the contract mentioned in the plaintiffs third coimt, he says
that at the time of its execution he was kept in imprisonment by the plaintiff, and
executed the contract through the force of that imprisonment.
Part Payment. — And the defendant comes and says that he has paid the note
mentioned in the plamtiff s writ, except the sum of fifty dollars, and
Tender.] before the plaintiff sued out his writ he tendered to the plaintiff said sum
of fifty dollars, and now brings the same into court for the plaintiff.
Accord. ■ — And the defendant comes and says he delivered to the plaintiff one wagon,
which the plaintiff received in full satisfaction of the note mentioned in the plaintiff's
writ.
Res .Judicata. — And the defendant comes and says that at the supreme judicial
court, lield, &c., the plaintiff recovered judgment against the defendant for
dollars and cents damages, and for costs ; and that said judgment was
rendered upon the same cause of action mentioned in the plaintiffs first count.
Release. — And the defendant conies and says the plaijitiff executed to him a
release, a copy whereof is hereto annexed, whereby he discharged the defendant fi-om
the cause of action mentioned m the second count.
To a Policy of Insurance.
Insurance. — And the defendants come and say that they deny, upon information
and belief, that said loss was actually total, and they deny that any abandonment was
made.
And the defendants come and say they deny, upon information and belief, that said
vessel was seaworthy for the voyage in said policy mentioned, at the inception of said
voj-age.
And the defendants come, &c., (as above,) but deny, upon information and belief,
that said vessel was lost while proceeding on the voyage in said policy described.
Forms of A?isicers in Actions of Tort.
Trover. — And the defendant comes and upon his personal knowledge denies that
the horse mentioned in the plaintiffs writ was the property of the plaintiff, and also
denies that he converted the same to his own use.
And the defendant comes and says that upon his personal knowledge he is ignorant,
but upon his information and belief he denies, that the horse mentioned in the plain-
tiffs writ was the property of the plaintiff.
And the defendant comes and upon his knowledge and belief admits that saiil horse
is the general property of the plaintiff, but avers that the defendant has a special
property therein by reason of his having attached the same as the plaintiffs property,
by virtue of a writ, (here describe it,) which writ was delivered to the defendant, who
then was a deputy-sheriff in the said county of , for service, and the action is
now pending : And so the defendant denies upon his personal knowledge that he has
converted said horse to his own use.
Deceit. — And the defendant comes and upon his personal luiowledge denies that he
made said representation knowing that the same was not true.
And the defendant comes and says he has not personal knowledge, but upon his
information and belief he denies that said horse was unsound, as stated in the plain-
tiffs declaration.
And the defendant comes and upon his personal knowledge denies that he made the
representation mentioned in the plaintiffs declaration. And he says said coffee was
the defendant's property, and he had a right to sell the same.
Obstructing Way. — And the defendant comes and says he has not personal knowl-
edge, but, upon his information and belief he denies that the plaintiff has a right of
way as set forth in his d'l'claration.
And upon his personal knowledge he denies that he obstructed said way as set forth
in said declaration.
Ulander. — And the defendant comes and upon his personal knowledge denies that
Chap. 130.]
SET-OFF AND TENDER.
669
he accused the plaintiff of the crime of perjury as set forth in the plaintiff's first Forms of
count. answers.
And as to the second count, he says the plaintiff did feloniously steal, take, and
carry away, ten dollars, the property of one S. T., in the possession of said S. T. being
found, and converted the same to his own use, and so the plaintiff was guilty of the
crime of theft, and the defendant's accusation was true.
Assault and Battery. — And the defendant comes and says the plaintiff first assaulted
him, and he only defended himself.
And the defendant comes and says the plaintiff was his apprentice, and deserted and
ran away from him, and he retook the plaintiff and forcibly brought him back, using
no more force than was necessary.
And as to the allegation that the defendant hurt and wounded the plaintiff, the
defendant upon his personal knowledge denies the same.
Trespass qtiare Claiisnm. — And the defendant comes and says that a part of the close
mentioned in the plaintiff's writ was the soil and freehold of the defendant, the same
being described as follows, &c. :
Upon his own knowledge he denies that he broke or entered any part of said close,
except the part above described.
A. B.
Replications,
Middlesex, Sup. C't., October 3, 1859.
Bepljcations.
C. D.
Limitations. — And the plaintiff replies as follows, viz.: He says that within six
years before the suing out of liis writ the defendant executed a writing, a copy whereof
is hereto annexed, by which he acknowledged said debt, and agreed to pay the same.
He further says the defendant has been absent from this commonwealth for the
space of three years last past.
Minoritij. — And the plaintiff replies that he is ignorant of the fact, so that he can
neither admit nor deny that the defendant was a minor, as stated in his answer, but
leaves the defendant to prove the same.
He further says the articles mentioned in his bill of particulars were necessaries for
the defendant, and suitable to his estate and degree.
CHAPTER 130,
OF SET-OFF AND TENDER.
SET-OFF.
Section
1. Mutual demands, &c.
2, 3, 4. Description of demands to be set off.
5. Set-off of demands assigned.
6. of bonds, &c.
7. in what actions allowed.
8. Where tlxere are several plaintiffs or de-
fendants.
9. Dormant partner.
10. Assigujnent of demand.
11. Actions by one in trust.
12. by executors or administrators.
13. Form of judgment in such cases-
14. Actions afj;unst executors, &c.
Ij. Demand due in same right.
Sectiox
Declaration in set-off.
17. Subsequent allegations and pleadings.
18- Limitations in bar.
li>. Judgment when demand in set-off is equalj
Ac.
20. when balance is due to defendant.
21. Plaintiff not to discontinue.
22. Set-off in suits before a justice of the peace,
&c.
TENDER.
23. Payment or tender after day, &c.
24. Tender after action brought.
25. how to be made, and defence.
2(3. Proceedings when tender is accepted.
SET-OFF.
Sectiotq" 1. When there are mutual debts or clemands between the Mutual de-
plaintiff and defendant in an action, one demand may be set off against k.^s^omi.
the other, as provided in this chapter, o 3iet. 39,.3G7. ii Met. i3g. i3 Met. 132, 134. 6 Met. 7.
Sect. 2. No demand shall be set off unless it is founded upon a Description of
judgment or upon a contract, but the contract may be either express ge^Jff.*^^ ^° ^^
or implied, and with or without a seal. 9 Met. 367. r.s. 90,§2.
Sect. 3. No demand shall be set off unless it is for the price of real l^'^.^^^^gf '
or personal estate sold, or for money paid, money had and received, or 17 Mass'. 66.*
670
SET-OPP.
[Chap. 130.
i Pick. m.
5 Pick. 312.
3 Met. 020.
4 Met. 430.
Same subject,
K. s. an, 1 4.
8 Met. Li'J, 307,
609.
IS Jlct. 132.
7 Gray, 170.
Set-off of de-
mands assigned-
E. S. 0 i, § 5.
11 Klet. 130.
3 Gray, 504.
of bonds, &c.
E. S. u!;, § 0.
4 Met. 430.
in what ac-
tions allowed.
E. S. Wl, § 7.
4 Met. 430.
If several
plaintiffs or de-
fendants.
E. S. OH, § 8.
11 Mass. 140.
1 Met. 80.
dormant part-
ner.
B. S. 00, § 9.
6 Ficl£. 352.
assignment of
demand.
K. S. !W, § 10.
12 Mass. 193,
195.
14 Mass. 291.
Actions by one
in trust.
E. S. '.M, § 11.
S Pick. 342.
11 Met. 13(5.
7 Cush. 217.
by executors
or administra-
tors.
E. S. 96, § 12.
2 Mass. 498.
3 Pick. 452.
4 Pick. 212.
Form of jud;^-
uient in Bucli
cases.
E. S. 9(5, § 13.
Actions ag:ainst
executors, .fee.
It. S. 90, § 14.
Demand due in
same right.
E. S. 9(5, § 15.
n Met. 537.
7 Gray, 170.
Declaration in
set-off.
E.S. 96, §§ 10, 17.
1S52, 312, § 37.
3 .Met. 411.
~ Gray, 194.
Subsequent al-
legatiidiB and
pleadings.
for services done, or unless it is for a sum that is liquidated, or one that
may be ascertained by calculation.
0 Met. 7.
Sect. 4. No demand shall be set off unless it existed at the time
of the commencement of the suit, and then belonged to the defendant,
nor unless it is due to him in his own right, except as is hereinafter
provided.
Sect. 5. Any demand assigned to the defendant with notice to
the plaintiff of the assignment before the commencement of the action,
may be set oif in like manner as if it luul been originally payable to the
defendant.
Sect. 6. If the demand set off is founded on a bond or other con-
tract having a penalty, no more shall be set off than the sum equi-
tably due.
Sect. 7. Tlie set-off shall be allowed in all actions founded upon
demands which could themselves be the subject of set-off according to
law, and in no others.
Sect. 8. If there are several plaintiffs, the demand set off shall be
due from all of tliem jointly; and if there are several defendants, the
demand set off shall be due to all of them jointly, excejit as is provided
in the following section.
Sect. 9. When the person with whom .any contract is made has a
dormant partnei', and a suit is brought on such contract by or .against
the partners jointly, any demand due to or from the person with
wliom the contract was made, may be set off in like manner as if such
dormant partner had not been joined in the suit.
Sect. 10. If the dem.and on which the action is brought has been
assigned, and the defendant had notice of the assignment, he shall not
set off any demand that he acquires against the original creditor after
such notice.
Sect. 11. When an action is brought by one person in trust or for
the use or benefit of another, the defendant may set off any demand
against the person for whose use or benefit the action is brought, in like
manner as if that person were the plaintiff in the suit.
Sect. 12. In actions by executors and administr.atoi-s, demands
against their testators or intestates which belonged to the defendant at
the time of their death, may be set off in the same manner as if the
action had been brought by the deceased.
9 Pick. 37. 4 Gray, 2S0. "7 Gray, 170.
Sect. 13. When upon such a set-off against an executor or adminis-
trator, a balance is found due to tlie defendant, the judgment therefor
against the plaintiff shall be in the same form and have the same effect
as if the suit had been originally commenced by the defendant.
Sect. 14. In actions against executors and administrators and .against
trustees and others, sued in their rc]iresentative character, the defend-
ants may set off demands belonging to their testators or intestates or
those whom they represent, in the same manner as the persons repre-
sented would have been entitled to set off the same in au action against
themselves.
Sect. 15. In suits brought by or against executors, administrators,
or trustees, in their represent.ative character, no demand shall be set off
that is due to or from such executors, administrators, or trustees, in their
own right.
Sect. 16. When the defendant relies on a claim by way of set-off,
he shall file with his answer a declaration, entitling it a declaration in
set-off, and adapted to the claim in hke manner as though an action
were brought upon it.
Sect. 17. Tlie subsequent allegations and pleadings respecting the
defendant's demand shall be governed by the same rules as if an action
Chap. 130.] set off, tender. 671
had been brought thereon ; and the plaintiif shall be entitled to every b. s. %, § i9.
ground of defence against it of which he might have availed himself by l^nyfiw^^'
an answer or otherwise in an action brought against him. 7 Gray, iw.
Sect. 18. If anj' law for the limitation of actions is alleged by way Limitations in
of defence to the defendant's demand, the limitation shall be applied in \^'^ g^ .^^
the same manner as it would have been to an action brought on the 4 Gray, 393.
same demaml if it had been commenced at the time when the plain-
tiff's action was commenced.
Sect. 19. If an amount is proved to be due on the set-off equal to Judgment,
the amount due to the plaintift^ the court may award costs to either i^''s'^o't-off"if"'
party or dismiss the action without costs; and if the amount so proved ^Ji"?''*"- ,^
is less than the sum due to the plaintiff, he shall have judgment for the 4 Gray'sii" '
balance.
Sect. 20. If it appears that there is a balance due from the pl.aintiff when baiimcc
to the defendant, judgment shall be rendered for the defendant for the foiuhSit? """^
amount thereof with his costs; but n(5 such judgment sliall be rendered K-S. yo,§22.
against the jilaintiff when the demand for which the action is brought "'^"' '
was assigned before the commencement of the suit, nor for any balance
due from any other person than the plaintiff.
Sect. '21. After a declaration in .set-off is filed, the plaintiff shall not Plaintiff not to
be allowed to discontinue his action, unless by consent of the defendant. k''s"%"'s''4
Sect. '22. In actions before a justice of the peace, or poHce court, lo'cush! sis.'
the defendant sh.all file his declaration in set-off at the time when the Set-off in suits
action is entered, or within sucli further time as the justice or court for oftiiepeace,&c.
special reasons may allow. All the other proceedings shall be the s.ame Jl^f'i^'^^"
as are before prescribed with respect to actions in other courts : /)ro-
vided, that judgment for the defendant shall not be entered for more
than one hundred dollars, or for more than three himdred dollars in the
police court of Boston, exclusive of costs.
TENDEE.
Sect. 23. The paj-ment or tender of payment of the whole sum due Payment or
on any contract for the payment of money, although made after the ^^y^l^"
money has become due and payable, may be alleged in an answer to an B- S. 10b, § 14.
action subsequently brought, in like maimer and with the like effect as
if such payment or tender had been made at the time prescribed in the
contract.
Sect. 24. A tender may also be made after an action is brought on Tender after ao-
such contract, of the whole sum due thereon with the legal costs of suit k?s''iSo°§\5
incurred up to that time : proi'ided, it is made four days at least before
the retm-n day of the original writ.
Sect. 2-3. The tender last mentioned may be made cither to the how to be
plaintiff or to his attorney in the suit, and if not accepted the detisud- "u^^'."™'' ''''"
ant may avail himself of it in defence in like manner as if it had been K. s. 100, §i6.
made before the commencement of the action, bringing into court the
amount so tendered for costs, as well as for the debt or damages.
Sect. 26. If such tender is accepted, the plaintiff or his attorney Proceedings
.shall, at the request of the defendant, sign a certificate or notice thereof acwpted
to the officer who has the writ, and deliver it to the defendant ; and if E- s. 100, § 17.
any further costs are incuiTcd for any service made by the officer after
the tender and befoi-e he receives notice thereof, the defendant shall pay
the same to the officer, or the tender shall be invalid.
672
WITNESSES AND EVIDENCE.
[Chap. 131.
CHAPTER 131,
OF WITNESSES AND EVIDENCE.
■WITNESSES.
SECTIO?!
1. Witnesses, by whom summonses for may
be issued.
2. summons for, by whom served.
3. feos to be tendered to.
4. liability of, for not atteuding.
5. further liability of.
6. may be brought in on warrant.
7. oatlis to, by arbitrators, &c.
8. 9. Mode of administeriag oaths.
10, 11. Who may affirm.
12. Persons other than Christians, how sworn.
13. Witnesses not excluded by crime, &c.
14. Parties in civil suits may testify, except,
&c.
15. Witnesses to wills.
16. When wife may testify.
DEPOSITIONS.
17, 18. Depositions, when taken, &c.
19. Notice to be given to adverse party.
20. on whom to be served.
21. 22. how to be served.
23, 24. Deponent, how sworn and examined.
25. Deposition, by whom to be written.
26. Certificate to be annexed.
27- Deposition to be transmitted to court, &c.
28. not to be used if deponent can attend.
29. Objections to deponent or his testimony,
how and when made.
30. Deposition, when may be used in another
suit.
31. Courts may make rules concerning deposi-
tions.
32. Deponent may bo compelled to testify.
33. living out of state, but at the time here-
in, may be compelled to give depositions,
&c.
34. Depositions, how taken out of state.
35. to be taken on written interrogatories.
3G. Rules concerning foreign depositions.
37. Discretionary power as to depositions and
affidavits otherwise taken.
38. Depositions may be taken for courts in
other governments.
deposition to perpetuate testimony.
Section
39. Depositions to perpetuate evidence, how
taken.
40. Notice to be given to all persons interested.
41. Depositions to perpetuate testimony not to
be taken when objections are made, except,
&c.
42. mode of taking. Cei-tificate to be an-
nexed.
43. to be recorded in registry of deeds.
44. in what cases used.
45. Deponent may be summoned and compelled
to testify.
46. Such depositions may be taken out of state.
47. Statement to be filed by party applying.
48. Notice to be given to adverse party.
49. Commission may be issued.
50. Deposition, how taken and returned.
51. Statement may be filed and notice given in
vacation.
52. S. J. C. may make rules concerning such
depositions.
53. Such depositions when to be used.
54. Depositions to perpetuate testimony
against all persons.
55. 50. Proceedings therefor.
57. Such depositions to be recorded in registry
of deeds.
53. in what cases they may be used.
DEPOSITIONS OF PARTIES.
59. Depositions of parties, &c,
EVIDENCE IN PROCEEDINGS IN EQUITY.
GO. Evidence in proceedings in equity.
PROOF OF STATUTES AND LAWS.
61. Records of courts of other states, how au-
thenticated.
02. Acts and resolves published by law to be
evidence.
C3. St^atute laws of other states, when to be
evidence.
04. Unwritten laws of other states, how proved.
Go, Laws of foreign countries, how proved.
Witnesses, by
whom sum-
monses for
may be issued.
1784, 38.
R. S.8o,§38.
R. S. W, § 1.
R. S. 96, § 28.
summons for,
by whom serv-
ed.
K. S. 94, § 2.
fees to be ten-
dered to.
R. S. 94,§3.
4 Gush. 249.
liability of,
WITNESSES.
Section 1. Every clerk of a court of record, and every justice of
the peace, may issue summonses for witnesses in all civil cases pending
before any court, magistrates, auditors, referees, arbitrators, or other
persons authorized to examine witnesses; and the summons shall be in
the foim heretofore adopted and commonly used, but may be altered
fi'om time to time like other writs.
Sect. 2. Such summons may be served by any officer qualified to
serve a civil process or by a disinterested person, by exhibiting and
reading it to the mtness, or by giving him a copy thereof, or leaving
such co]>y at the place of his abode.
Sect. 3. No person shall be obliged to attend as a witness, imless
the fees allowed by law for one day's attendance, and for travelling to
and returning from the place where he is required to attend, are paid or
tendered to him.
Sect. 4. If a person duly summoned and obliged to attend as a wit-
Chap. 131.] witnesses. 673
ness, fails so to do without a reasonable excuse, he shall be liable to the for not attend-
aggrieved party for all damages occasioned by such failure, to be recov- kFs. w, §4.
ered in an action of tort. iCush. 249.
Sect. 5. Such failure to attend as a 'witness before any court, justice witncssos, fur-
of the peace, master in chancery, or the county commissioners, or before i'"'g '^^'"§5^ "''
an auditor appointed by the supreme judicial or superior court, shall also isss, 42.'
be considered a contempt of the court, and may be punished by a fine isasiga/ffajs.
not exceeding twenty dollars.
Sect. 6. The court, justice, master in chancery, county commission- maybe
ers, or auditor, in such case, may issue a warrant to bring such witness warrant "" °°
before them to answer for the contempt, and also to testily as a witness K- .s. w, §6.
in the cause in which he was summoned. isss, 93, §§ 2, 3. il^;^, 59.
Sect. 7. Arbitrators, referees, and auditors, appointed according to oaths to, by
law, may administer oaths or affirmations to all persons offered as wit- Jss" 54 '"°' *"'
nesses before them.
Sect. 8. The usual mode of administering oaths now practised in Mode of admin-
tliis state, with the ceremony of holding up the hand, shall be observed k^T'iIT?''*'
in all cases in which an oath may be administered by law, except as is
hereinafter provided.
Sect. 9. When the court or magistrate before whom a person is to Same subject,
be sworn, is satisfied that such person has any peculiar mode of swearing ^jfa's^'2l2*''
which is in his opinion more solemn or obligatory than holding up the 10 Pick. 153.
hand, they may adopt that mode of administering the oath.
Sect. 10. Every Quaker when called on to take an oath shall be TVTiomayaf-
permitted, instead of swearing, solemnly and sincerely to affirm under kTs. 94 §9.
the paius and penalties of perjurj'.
Sect. 11. Every person who declares that he has conscientious scru- Same subject.
pies against taking any oath, shall, when called upon for that purjjose, 2*Gai)js,' 3m.'
be permitted to affirm in the manner prescribed for Quakers, if the ^ Met. 244.
court or magistrate on inquiry is satisfied of the truth of such decla-
ration.
Sect. 12. Every person believing in any other than the Christian Persons other
religion, may be sworn according to the peculiar ceremonies of his reli- hi™ swoiti"&c!
gion, if there are any such. Every person not a believer in any religion K. s. <>4, §11.
shall be required to testify truly under the pains and penalties of per-
jury ; and tlie evidence of such person's disbelief in the existence of God
may be received to affijct his credibility as a witness.
Sect. 1.3. No person shall be excluded by reason of crime or interest Witnesses not
from giving evidence as a witness either in person or by deposition in cHmcf&c!'''
any proceeding civil or criminal in court or before a person having an- i8o2,3i2,§fio.
thority to receive evidence. But the con's-iction of any crime may be 549. ' "* '
shown to affect the credibility of a witness. ^ Metrof'
lOCush. 351. llCush. 253. 2Gray,6G2.
Sect. 14. Parties in civil actions and proceedings, including probate Parties in civil
and insolvency proceedings, suits in equity, and divorce suits, (except tily.^'xctpt'.'&o.
those in which a divorce is sought on the ground of alleged adultery of '^^l- |m. §3.
either party,) shall be admitted as competent witnesses for themselves inw|23o'|2.'
or any other party ; and in any such case in which the wife is a party ^ Jrjjjy' ***•
or one of the parties, she and her husband shall be competent witnesses
for and against each other, but they shall not be allowed to testify as to
private conversations with each other : provided, that where one of the
original parties to the contract or cause of action in issue and on trial is
dead, or is shown to the court to be insane, the other party shall not be
admitted to testify in his own favor; and where an executor or adminis-
trator is a party, the other party shall not be admitted to testify in his
own tavor, unless the contract in issue was originally made with a per-
son who is living and competent to testify, except as to such acts and
contracts as have been done or made since the probate of the Avill, or
the appoiutmeut of the administrator.
57 85
674
DEPOSITIONS.
[Chap. 131.
Witnesses to Sect. 15. The provisions of the two preceding sections shall not
1^^*312, §60. 'ipply to tl^f^ attesting witnesses to a will or codicil.
1857,305, §3. Sect. 16. In actions brought against the husband wherein the cause
teBtSv^^''^ ""^ *^^ action grows out of" a wrong or injury done by him to the wifs, or his
1859, 230, § 1. neglect to furnish her with the proper means of support, the wife shall
be a competent witness.
DEPOSITIONS.
Sect. 17. Depositions may be taken as provided in this chapter, to
be used before magistrates or other persons authorized to examine wit-
nesses in any other than criminal cases.
Sect. 18. When a witness whose testimony is wanted in a civil
cause or proceeding pending in this state, lives more than thirty miles
from the place of trial, or is about to go out of the state and not to
return in time for the trial, or is so sick, infirm, or aged, as to make it
probable that he will not be able to attend at the trial, his deposition
may be taken as hereinafter provided.
Sect. 19. At any time after the cause is commenced by the service
of process, or after it is submitted to arbitrators or referees, either party
may apply to a justice of the peace, who shall issue a notice to the ad-
verse party to appear before said justice or any other justice of the peace,
at the time and place appointed for taking the deposition, and to put such
interrogatories as he thinks fit.
Sect. 20. The notice may be served on the adverse party or his
agent or attorney ; and when there are several plaintiffs, defendants,
or parties, on either side, a notice served on either of them shall be
sufficient.
Sect. 21. The notice shall be served by delivering an attested
copy thereof to the person to be notified, or by leaving such copy at his
place of abode, not less than twenty-four hours before the time ap-
pointed for taking the deposition, and also allowing time for his travel
to the place appointed, not less than at the rate of one day, Sundays
excluded, for every twenty miles' travel.
Sect. 22. Instead of the written notice before prescribed, the notice
may be given verbally by the justice taking the deposition, or it may be
wholly omitted if the adverse party or his attorney in writing waives
the right to it.
Sect. 23. The deponent shall be sworn or affirmed to testify the
truth, the whole truth, and nothing but the truth, relating to the cause
for which the deposition is taken. He shall then be examined by the
justice and the parties if they think fit, and his testimony shall be taken
in writing.
Sect. 24. The party producing the deponent shall be .illowed first
to examine him, either upon verbal or written interrogatories, on all the
points which he deems material ; the adverse party may then examine him
in like manner; after which either party may propose such further inter-
rogatories as the case may require.
Sect. 25. The deposition shall be written by the justice, or by the
deponent, or by some disinterested ])erson in the presence and under the
direction of the justice, and it shall be carefully read to or by the de-
ponent, and shall then be subscribed by him.
Sect. 26. The justice shall annex to the deposition a certificate of
the time and manner of taking it, the person at whose request, the
cause or suit for which, it was taken, and the reason for taking it, and
stating also whether the adverse ])arty attended, and if not, stating the
notice, if any, that was given to him.
Sect. 27. The deposition sh.all be delivered by the justice to the
court, arbitrators, referees, or other persons, before whom the cause is
pending, or sliall be enclosed and sealed by him, and directed to them,
and ehall remain sealed until opened by them.
Depositions,
when taken, &c.
E. S. 94, § 13.
Same 6ubject,
K. S. 91, § H.
Notice to be
given to adverse
party.
B. S. 91, § 15.
on wliom to
be served.
E. S. 'H, §§ 11),
17.
7 Pick. 137.
how to be
served.
E. S. 94, § 18.
7 Met. 2S9.
11 jffet. 78.
same subject.
K. S. 94, § 19.
Deponent, liow
sworn and ex-
amined.
E. S. 94, § 20.
Same subject.
E.S. 94, §21.
Deposition, by
whom to be
written.
E. S. 94, § 22.
Certificate to be
annexed.
E. S. 94, § 23.
3 Picl£. 79, SO.
Deposition to
be transmitted
to court, &c.
B. S.91, §21.
Chap. 131.] depositions. 675
Sect. 28. No such deposition shall be used if it appears that the Deposition,
reason for taking it no longer exists ; except that if the party jiroducing uged° "°* *° '"^
it in such case shows any sufficient cause then existing for using the K. s. 94, § 25.
deposition, it may be admitted.
Sect. 29. Every objection to the competency or credibility of the objections to
deponent, and to the jiropriety of any questions put to him, or of any fcsl^monythow
answers made by him, may be made when the deiiosition is produced in and when made,
the same manner as if the witness were pei-sonally examined on the j pick, sisr '
trial: ^yrov'ukd, that when a deposition is taken u])on written interroga- Ip-'^tJi*'
tories, all objections to any interrogatory shall be made before it is g Met.' 276.
answered, and if the interrogatory is not withdrawn the objection ' *''"''^' *'
shall be noted thereon, otherwise the objection shall not be afterwards
allowed.
Sect. 30. Wlien the plaintiff in a suit discontinues it or becomes Deposition,
nonsuit, and another suit is afterwards commenced for the same cause used^inanoffier
between the same parties or their respective representatives, all deposi- suit,
tions lawfully taken for the first suit, may be used in the second in the 22pick.'w».'
same maimer and subject to the same conditions and objections as if
originally taken for the second suit, if the deposition was duly filed in
the court where the first suit is pending, and lias remained in the
custody of the court from the termination of tlie first suit until the
commencement of the second.
Sect. 31. The courts may fi-om time to time make proper and con- Courts may
venient rules as to the time and manner of ojiening, filing, and safe cernLf'^depost
keepinsr of depositions, and other regulations conceniin<T the taking tions. °
and using thereof, which are not inconsistent with the provisions of law. • • >» •
Sect. 32. A witness may be summoned and compelled to give his Deponent may
deposition at any place within twenty miles of his place of abode, in to testWy. "^
like manner and under the same penalties as he may be summoned and K. s. w, §29.
compelled to attend as a witness before a court.
Sect. 33. A witness not having his place of abode in this state, but witness living
being at the time herein, may be summoned and compelled to give his °"ti°e tSi'c' ''"*
deposition at any place within ten miles of the place at which the sum- herein, to gnro
mons is served upon hini, in like manner and under the same penalties i^7°'236°'''
as he may be summoned and comiiclled to attend as a witness before a
court.
Sect. 34. The deposition of a witness without this state may be Depositions,
taken under a commission issued to one or more competent persons in of sta'te!''" °"*
any other state or country, by the court in which the cause is ])ending; J*- ?•.**,! §^0.
or it may be taken before a commissioner appointed by the govemor for f, Met' 270.
that purpose in any part of the United States or in any foreign country; Appomtmentof
and in either case the deposition may be used in the same manner and eommissjoner.
subject to the same conditions and objections as if it had been taken 55'4i^7.''*'
in this state.
Sect. 35. Every deposition taken before commissioners shall be to be taken on
taken upon written interrogatories, to be exhibited to the adverse party rogatories."''^
or his attorney, and cross-interrogatories to be filed by him if he k. s. U4, §31.
thinks fit.
Sect. 36. The courts may make rules not inconsistent with the pro- Rules concern-
visions of law as to the issuing of commissions, either in vacation or dcpo'^tioM.
term time, the filing of interrogatories and all other matters relating to E. s. 94, §32.
depositions taken out of the state.
Sect. 37. Depositions and aflidavits taken out of the state in any Discretionary
other manner than is prescribed in the three preceding sections, if taken depo'^Jj/JoiJ? aaci
before a notary public or other person authorized by the laws of any affidavits other-
other state or country to take depositions, may be admitted or rejected r!'s.94,™33.
at the discretion of the court: jjrovided, that no such deposition or affi- iCush. 449.
davit shall be admitted unless it appears that the adverse party had
sufficient notice of the taking thereot^ and opportunity to cross-examine
676
DEPOSITIONS TO PERPETUATE TESTIMONY. [ChAP. 131.
Depositions
may be taicen
for courts in
other govern-
ments.
E. S. 94, §53.
the witness, or that from the cii'cumstances of the case it was impossible
to give him such notice.
Sect. 38. A witness may be summoned and compelled in like man-
ner and under the same penalties as are prescribed in this chapter, to give
bis deposition in a cause pending in a court in any other state or gov-
ernment ; which deposition may be taken before a justice of the peace in
this state, or before commissioners appointed under the authority of the
state or government in which the suit is pending; and if the deposition
is taken before such commissioners, the witness may be summoned and
compelled to ajipear before them by process from a justice of the peace
in this state.
Depositions to
perpetuate evi-
dence, liow
taken.
K. S. M, § 34.
1858, 93.
5 Met. 173.
Notice to be
given to all
persons inter-
ested.
E. S. 94, § 35.
1839, 140, § 2.
Depositions to
perpetuate tes-
timony not to
be taken when
objections are
made, except,
1839, 140, § 1.
mode of tak-
ing. Certifi-
cate to be an-
nexed.
E. S. 94, § 36.
3 Pick. 80.
5 Met. 173.
to be recorded
in registry of
deeds.
K. S.94, §37.
in what cases,
used.
DEPOSITION TO PEEPETUATE TESTtSIONY.
Sect. 39. When a person is desirous to perpetuate the testimony of
a witness, he shall make a statement in writing setting forth briefly and
substantially his title, claim, or interest, in or to the subject concerning
which he desires to perpetuate the evidence, and the names of all other
persons interested or supposed to be interested therein, and also the
name of the witness proposed to be examined ; and shall deliver said
statement to two justices of the peace, one of whom shall be eitlier a
judge or register of probate and insolvency, a clerk of the supreme
judicial court, a master in chancery, or a counsellor at law, requesting
them to take the deposition of said witness.
Sect. 40. The justices shall thereupon cause notice to be given of
the time and place appointed for taking the deposition, to all persons
mentioned in said statement as interested in the case. The notice shall
be given in the manner prescribed in this chapter respecting notice upon
taking a deposition in this state to be used in a cause here pending ; and
when in the opinion of the justices no suificient provision is made by
law for giving notice to parties adversely interested, they shall cause
such reasonable notice to be given as they deem proper.
Sect. 41. If at the time and place appointed for taking the deposi-
tion the witness or any person interested appears and objects, the jus-
tices shall not proceed to take the same unless on hearing the parties
it is made satistactorily to appear that such testimony may be material
to the petitioner, and is not sought for the purpose of discoveiy, or of
using the same in any suit then pending, or thereafter to be brought
against said witness ; and that the petitioner is in danger of losing the
same before it can be taken in any suit wherein his right, title, interest,
or claim, can be tried. In all cases the petitioner, his agent, or attorney,
shall at the request of such witness, or any person interested in the
deposition, be examined on oath in relation to the reasons for taking the
same.
Sect. 42. The deponent shall be sworn and examined, and his depo-
sition shall be written, read, and subscribed, in the same manner as is
prescribed respecting other depositions before mentioned ; and the jus-
tices shall annex thereto a certificate under their hands of the time and
manner of taking it, and that it was taken in perpetual remembrance of
the thing ; and they shall also insert in the certificate the names of the
person at whose request it was taken, and of all those who were notified
to attend, and of all who did atteml the taking thereof
Sect. 43. The deposition with the certificate, and also the written
statement of the party at whose request it was taken, shall witliin ninety
days after the taking thereof be recorded in the registry of deeds in tlie
coimty or district where the land lies, if the deposition relates to re.al
estate, otherwise in the county or district where the parties or some of
them reside.
Sect. 44. If a suit, either at the time of taking such deposition or at
any time afterwards, is pending between the person at whose request it
Chap. 131.] depositions to perpetuate testimony. 677
w.as taken, and the persons named in said written statement, or any of R. s. 94, § 38.
them who wore notified as aforesaid, or any persons claiming under ' ^°^' '*'
either of said jiarties, concerning the title, claim, or interest, set forth in
the statement, the deposition so taken, or a certified copy of it from
the registry of deeds, may be used in such suit in the same manner and
subject to the same conditions and objections as if it had been oiugi-
nally taken therefor.
Sect. 45. Anj' witness maybe summoned and compelled to give his Deponent may
deposition in perjietual remembrance of the thing as before prescribed, and compelled
in like manner and under the same penalties as are provided in this to testify.
chapter respecting other depositions taken in this state. ■ ^■■n,s ■"■
Sect. 46. Depositions to peqietuate the testimony of witnesses liv- Depositions
ing without the state, may be taken in any other state, or in any foreign "j'/of'stafe"
country, upon a commission to be issued by the supreme judicial or R-Sm, §«.
superior court, in the manner hereinafter provided.
Sect. 47. The person who proposes to take the deposition shall apply statement to be
to either of said courts, and file therein a statement like that before pre- fip'}^'';^,?'^^
scribed to be delivered to the justices of the peace upon taking such a k. s'.wrni-
deposition within this state ; and if the subject of the ]3roposed deposi-
tion relates to real estate within this state, the statement shall be filed
in the county where the land or anj' part thereof lies, otherwise in the
county where the parties or some of them reside.
Sect. 48. The court shall order notice of such application and state- Notice to be
meut to be served on all the persons mentioned therein as adversely fj^lepl^'.
interested in the case, and living within the state, which notice shall K- s. 94, §«.
be served fourteen days at least before the time therein appointed for
hearing the parties.
Sect. 49. If, upon hearing the parties who appear, the court is satis- CommiBsion
fiod that there is sufficient cause for t.aking the deposition, it shall issue k.''s.''^T43.^'
a commission therefor in like manner as for taking a deposition to be
used in any cause pending in the same court.
Sect. 50. The deposition shall be taken upon written interrogatories Deposition,
filed by the applicant, and cross-inteiTogatories filed by any party ad- returned™ """^
Tersely interested, if he thinks fit, and it .shall be taken and returned k. s. w, §«.
substantially in the same manner as if taken to be used in a cause pend-
ing in the same court.
Sect. 51. The person who proposes to take the deposition may, at Statementmay
Lis election, file his statement in the clerk's office in vacation, and may tke^^ven to'va-
cause notice thereof to be given to the persons therein named as ad- eation.
Tersely interested, by serving them with an attested copy of the state- ■ • ' » •
ment, fourteen days at least before the next term of the court ; and the
court may thereupon proceed to hear the parties and to issue the com-
mission as before provided.
Sect. 52. The supreme judici.al court may from time to time make s. J. c.may
rules not inconsistent with the provisions of law as to taking depositions "rnLs'su'ch™"
to perpetuate the testimony of witnesses without the state, whether depositions.
taken under a commission from the supreme judicial or superior court, Kag/iao. '
and as to the filing or recording of such depositions.
Sect. 53. All depositions to perpetuate the testimony of witnesses. Such deposi-
taken at any place without this state according to the provisions of this beSsed!"™*"
chapter, may be used in like manner as if taken within the state. e. s. w, §4?.
Sect. 54. Depositions to perpetuate the testimony of witnesses Depositions
within or without the state, so that the same may be evidence against festimony*'^
all persons, may be taken upon a commission to be issued after public against all per-
notice by the supreme judicial or superior court. r.°s.94, §48.
Sect. 55. Tlie person who desires to have such deposition taken Proceedings
may apply to either of said courts in the manner before prescribed in ^"'^^^'^"649
the case of taking a deposition to perpetuate the testimony of a witness
living without the state, and all the proceedings thereon shall be the
same as are prescribed in the case last mentioned.
57*
678
EVIDENCE IN EQUITY, PROOF OP STATUTES AND LAWS. [ChAP. 131.
Depositions to
perpetuate tes-
timony aj,'ain8t
all persons.
Proceedings
therefor.
E. S. 94, § 60.
Such deposi-
tions to be re-
corded in regis-
try of deeds.
K. S. 94, §51.
in what cases
they may be
used.
K. S.9i,§52.
Sect. .56. The court shall, in addition to the proceedings before pre-
scribed, inquire upon the oath of the applicant or otherwise, at its dis-
cretion, as to all persons known or supposed to be interested in the
case, and shall in the commission direct the commissioner or commis-
sioners to publish in such newspaper or newspapers within or without
the state, or both, or in such other manner as the court considers most
effectual, such notice of the time and place of taking such deposition,
and of the subject matter thereof, as the court thinks proper ; which
notice shall be addressed specially by name to all persons who are
known or supposed to be interested in the ease, and generally to all
others, that they may attend and propose cross-interrogatories to the
witness. The court may also require personal notice of the time and
place of taking, and of the subject matter of, such deposition, to be
given to such persons and in such manner as under all the circumstances
seems proper.
Sect. 57. Such deposition having been taken and returned to the
court by whose order the commission issued, and being found to have
been taken according to law and the directions contained in the com-
mission, the court shall order it to be recorded within thirt}' days in the
registry of deeds, in the manner prescribed in section forty-three.
Sect. 58. A deposition taken and recorded under the provisions of
the four preceding sections, or a certified copy thereof from the regis-
try, may be used by the person at whose request it was taken, or by
any person claiming under him, against any person whatever, in any
suit or process, wherein is brought in question the title, claim, or in-
terest, set forth in the statement upon which the commission was
founded, in the same manner, and subject to the same conditions and
objections, as if it had been originally taken for said suit or process.
Depositions of
parties, &c.
ISSr, 305, § 3.
5 Gray, 440.
DEPOSITIONS OF PAETIES.
Sect. 59. The testimony of persons made competent witnesses by
section fourteen, may be taken or given by depositions, for the causes
and in the manner provided for other witnesses, and the expenses of
such depositions shall be taxed in the bill of costs as in other cases.
Evidence in
proceedings in
equity.
1852, 312, § 8S.
EVIDENCE IN PROCEEDINGS IN EQUITY.
Sect. 60. In proceedings in equity the evidence shall be taken in
the same manner as in suits at law, unless the court for special reasons
otherwise directs ; but this shall not prevent the use of affidavits where
they have heretofore been allowed.
Records of
courts of other
states, how au-
thenticated.
1!. S. 94, §57.
!l Cranch, 122.
5 Met. 436.
See U. S. const,
art. 4, § 1.
Acts and re-
solves publish-
ed by law to be
evidence.
K. S. 94, § 58.
13 Gray, 150.
Statute laws of
other states,
when to be evi-
dence.
K. S. 94, § 69.
3 Pick. 293.
PROOF OF STATUTES AND LAWS.
Sect. 61. The records and judicial proceedings of any court of an-
other state or of the United States shall be admissible in evidence in
all cases in this state, when authenticated by the attestation of the
clerk, prothonotary, or other officer having charge of the records of
such court, with the seal of such court annexed.
Sect. 62. The printed copies of all statutes, acts, and resolves, of
the commonwealth, whether of a jmblic or private nature, published
under the authority of the government, shall be admitted as sufficient
evidence thereof in all courts of law, and on all occasions whatso-
ever.
Sect. 6.3. Printed copies of the statute laws of any other state and
of the United States, or of the territories thereof, if puiporting to be
published under the authority of the respective governments, or if com'
monly admitted and read as evidence in their courts, shall be admitted
Chap. 132.] qualification and exemption op jurors.
679
ill all courts of law, and on all other occasions, in this state, s.% prima
facie evidence of such laws.
Sect. 64. The unwritten or common law of any other of ■the United Unwritten laws
States, or of the territories thereof, may be proved as facts by parol how prov'd!'^*'
evidence; and the books of reports of cases adjudged in theii- courts e.s. ;«,§(».
may also be admitted as evidence of such law.
Sect. 65. The e.vistence, tenor, or effect, of all foreign laws, may be Laws of foreign
proved as facts, by parol evidence ; but if it appears that the law in proveti. '
question is contained in a written statute or code, the court may in its J^^,,^;!^';
discretion reject any evidence of such law that is not accompanied by
a copy thereof.
CHAPTER 132,
OF JURIES.
qualification and exemption.
Section
1. Qualification of jurors.
2. Persons absolutely exempt.
3. To serve but once iu three years.
4. except, &c.
5. Jurors before justices of peace and police
courts, when exempt, &c.
JURY LIST AND BOX.
6. Selectmen to prepare lists of persons quali-
fied.
7. List to be posted up and approved or
altered by town.
8. Names to be put into a box.
9. Name of person convicted, &c., to be with-
drawn.
VENIRES FOR JURORS.
10. Clerks to issue writs Qf venire facias.
11. Jurors to be apportioned.
12. Venires, how served.
13. Additioual venires may be issued in term
time. How served.
14. Special provisions for Dukes County.
DRA^^^NG and summoning jurors.
15. Jurors selected by drawing names.
16. iS'ames, when and how to be drawn.
17. Date of each draft to be indorsed on ballot.
18. May be drawn in town meeting.
19. Moctiugs for drawing jurors, when held.
20. SummoniEg jurors and returning venire.
special provisions for cities.
Section
21. Lists, how made, &c., in cities.
22. Drawing jurors, &c., in cities.
EMPANELLING AND OTHER PROVISIONS RE-
SPECTING JURORS.
23. Empanelling juries for civil causes.
24. supernumeraries, &c.
25. foreman to be chosen by jury.
26. Empanelling juries iu criminal cases.
27. Talesmen, when and how returned.
28. who and by whom returned.
29. Jurors may be examined, &c., as to inter-
est, Ac.
30. When interest not to disqualify.
31. Objections to jurors, when to be made.
32. Certain irregularities not material.
33. Gratuities, &c., to jurors forbidden.
34. Jury not to be sent out more than twice,
unless, &c.
35. Court may direct a view by jury.
PENALTIES.
36. Fines on jurors neglecting to attend.
37. on officers and others for neglect.
38. Same, in cases of highways, mills, &c.
39. Punishment for fraud in drawing jurors.
EXCEPTIONS OF SPECIAL JURIES.
40. Special juries not affected by this chapter.
QUALIFICATION AND EXEMPTION.
Section 1, All persons wlio are qualified to vote in the choice of
representatives in the general court shall be liable to be drawn and
serve as jurors, except as is hereinafter provided.
Sect. 2. The followmg persons shall be exemj^t fi-oni ser\iug as
jurors, to wit : —
The governor, lieutenant-govemor, members of the council, secretary
of the commonwealth, members and officers of the senate and house
of representatives during the session of the general court, judges and
justices of any court, (except justices of the peace,) county and special
commissioners, clerks of courts, registers of probate and insolvency,
registers of deeds, shenfis and their deputies, coroners, constables, mar-
Qualifi cations
of jurors.
K. S. 115, § 1.
9 Mass, 107.
Persons abso-
lutely exempt.
R. S. 18, § 17.
K. S. 95, §§2,3.
1838, 21.
1849, 218, §8.
1851, 204.
1858, 93.
19 Pick. 368.
680
JURY LIST AND BOX, VENIRES.
[Chap. 132.
To serve but
once in three
years.
E. S. as, § 12.
10 Mass. 220.
8 Pick. 5W.
except, &c.
E. S. 95, § 38.
Jurors before
justices of
peace and po-
lice courts,
■when exempt,
&c.
1852, 314, §§ 2,
10.
shals of the United States ,incl their deputies, and all other officers
of the United States, counsellors and attorneys at law, settled minis-
ters of the gosjiel, officers of colleges, fireceptors and teachers of in-
corporated academies, practising physicians and surgeons regularly
licensed, cashiers of ineoiporated banks, constant ferrymen, persons
who are more than sixty-live years old, members of the volunteer mili-
tia, members of the ancient and honorable artillery company, and engine-
men and members of the fire department of the city of Boston ; and
enginemen and members of the fire department of other places may be
exempt by the vote of the city council of the city or the inhabitants of
the town.
Sect. 3. No person shall be liable to be drawn and serve as a juror
in any court oftener than once in three years, except as provided in the
two following sections, but he shall not be so exempt unless he actually
attends and serves as a juror in pursuance of the draft.
Sect. 4. The inhabitants of the counties of Nantucket and Dukes
County shall be liable to be drawn and serve as jurors once in every
two years.
Sect. 5. No person shall be exempt from serving on a jury in any
other court, in consequence of his having served befoi-e a justice of the
peace or police court. No person shall be compelled to sei've as a juror
before any justice of the peace, or police court, more than twenty-four
days in any one year, nor more than fourteen days at any one time,
excejit to finish a case coimuenced within that time.
Selectmen to
prepare lists of
persons quali-
ificd.
E. S. 95, §§4, 38.
1858, 125, § 1.
7 Met. 326.
List to bo post-
ed up and ap-
proved or alter-
ed by town.
E. S. 95, § 5.
1850, 125, §§ 1, 2.
? Met. 320.
Names to be
put into a box.
K. S. 95, § 0.
Name of person
convicted, &c.,
to be with-
dra\vu.
K. S. 95, § 7.
JURY LIST AND BOX.
Sect. 6. The selectmen of each town shall once in every year pre-
pare a list of such inhabitants of the town not absolutely exempt, as
they think well qualified to serve as jurors, being persons of good moral
character, of sound judgment, and free from all legal exceptions; which
list shall include not less than one for every one hundred inhabitants of
the town, and not more than one for every sixty inhabitants, computing
by the then last census, except that in the county of Dukes County it
may include one for every thirty inhabitants.
Sect. 7. The list when so prepared shall be posted up by the select-
men in public places in the town, ten days at least before it is submitted
for revision and acce])tance, and shall then be laid before the town ; and
the town may alter it by adding the names of any persons liable to
serve, or striking any names therefrom.
Sect. 8. The selectmen shall cause the names borne on the list to
be AVi'itten, each on a se])arate paper or ballot, and shall roll up or fold
the ballots so as to resemble each other as much as possible, and so that
the name written thereon shall not be visible on the outside ; and they
shall place the ballots in a box to be kept by the town clerk for that
purpose.
Sect. 9. If any person whose name is so placed in the jury box is
convicted of any scandalous crime, or is guilty of any gross immorality,
his name shall be withdrawn therefrom by the selectmen, and he shall
not be returned to serve as a juror.
Clerks to issue
writs oi venire
fanas.
E. S. 80, § 7.
R. S. 95, §§ 13,
37.
1859, 190.
SceCh.l71,§§l,
2,3.
VENIEES FOE JTJEORS.
Sect. 10. The clerks of the supreme judicial and superior courts, in
due season before each term, (except the terms of the superior court in
the county of .SutFolk for criminal business commencing at other times
than in .January, April, July, and October,) and .at such other times as
the resjiective courts may order, shall issue writs of venire facias for
jurors, and shall therein require the attendance of the jurors on such
Chap. 1G2.] drawinCx and summoning jdrors. 681
day of the term as tho court may order. The jurors returned for the
superior court for crimhiLd business in the county of Suffolk shall serve
three terms.
Sect. 11. The clci-ks in issuing the venires shall require from each Jurors to beap-
town and city a number of jurors as nearly as may be in pro]iortion to k^'s!™' § 14.
their respective number of inhabitants, so as to equalize as far as possible
the duty of serving as jurors.
Sect. 12. The venires shall be delivered to the sheriff of the county, remre«, how
and by him transmitted to a constable in each of the towns and cities b5s!95, §15.
to ^\hich they are respectively issued, and they shall be served by the
constable, without delay, on the selectmen and town clerk.
Sect. 13. Nothing contained in the preceding sections shall prevent Additional «»■
any court from issuing venires for additioiud jurors in term tune when- "uedinterm '^"
ever it is necessary for the convenient despatch of tlieir business ; in time,
which case the venires shall be served and returned, and the jurors ' ' ''
required to attend on such days, as the court shall direct.
Sect. 14. When a suit is pending in the superior court for the county Special provis-
of Dukes County, wherein the inhabitants of any town in said county coun?/. ^'^''^
are disqualified from acting as jurors, any justice of the court, in term im2, rs.
time or in vacation, may order the clerk of the court to issue w-rits of '
venire facias for a sufficient number of jurors to try such cause, from
any town whose inhabitants are not so disqualified ; and the clerk shall
issue a venire facias accordingly.
DEAWnSTG AND SUMMOXING JXTEOES.
Sect. 15. All jurors, whether required to serve on a grand or trav- Jurors Bciected
erse jury, by force of the laws relating to highways or mills, or on any nLnes.""""
other occasion, (except inquests and proceedings relating to the com- Ji;,?-|?^ ^'^•
mitment of insane persons,) shall be selected by drawing ballots from isasjrl'
the jury box, and the persons whose names are borne on the ballots so J|^'|^^;
drawn shall be returned to serve as jurors.
Sect. 16. When jurors .are to be so drawn, the town clerk and select- Names, when
men shall attend at the clerk's office or some other ])ublic place appointed d?a\TO." '° ^
for the purjjose, and if the clerk is absent, the selectmen may proceed K. s. 95, §9.
without him. The ballots in the jury box shall be shaken and mixed
together, and one of the selectmen without seeing the names written
thereon shall ojienly draw therefrom a number of ballots equal to the
number of jurors required. If a person so drawn is exempt by law, or
is unable by reason of sickness or absence from home to attend as a
juror, or if he has served as a juror in any court within three years then
next preceding, his name shall be returned into the box and another
drawn in his stead.
Sect. 17. When a person is drawn and returned to serve as a juror Date of each
in any court, the selectmen shall indorse on the ballot the date of the doi-Bed°on''b""-
draft and return it into the box, and whenever there is a revision and ^t.
renewal of the ballots in the box, the selectmen shall transfer to the • ■ '
new ballots the date of all the drafts made within three years then next
preceding.
Sec't. 18. Any town may at a legal meeting order that all dr.afts for May be drawn
jurors therein shall be made in open town meeting, in which case the iUj"^™ °""^*'
draft shall be made by the selectmen in the manner prescribed in the R. s. 95, §§io,
two i)reeeding sections, except that it shall be done in a town meeting.
In such town when a venire is served upon the selectmen they shall
cause a town meeting to be notified and warned for that purpose in the
manner ordered by the town or otherwise prescribed by law.
Sect. 19. The meeting for drawing jurors, whether the draft is made Meetings for
in town meeting or before the selectmen and town clerk only, shall be whenhlM"^"^'
86 B- S. 95, § 16.
682
JURIES — PROVISIONS FOR CITIES, EMPANELLLING, &c. [ChAP. 132.
Summoning ju-
rors and return-
ing r-enire.
K. S. 95, § 17.
13 Met. 325.
held not less than se^'on nor more tlian twenty-one days, before the day
when the jurors are required to attend.
Sect. 20. The constable shall, four days at least before the time when
the jurors are required to attend, summon each person who is drawn,
by reading to him the venire with the indorsement thereon of his having
been drawn, or by leaving at his place of abode a written notification of
his having been drawn and of the time and place of the sitting of the
court at which he is to attend, and shall make a return of the venire
with his doings thereon to the clerk, before the opening of the court
from which it was issued.
SPECIAL PEOVISIONS FOR CITIES.
Lists, how Sect. 21. The list of jurors in cities shall be prepared and posted
dtles! *"'' "^ therein by the mayor and aldermen in like manner as required of select-
1850, 125, §§ 1, 2. men, and when posted for ten days shall be submitted to the common
council, which shall have Uke power as towns to revise and accept the
same.
Draw-ingjurors, Sect. 22. The mayor and aldennen and the clerks of each city shall
E?s."u5"§33. severally have and exercise all the powers and duties with regard to
1850, 135, §§1,2. drawing and all other matters relating to jurors therein, which are in
this chajjter required to be performed by the selectmen and town clerks
in theii" respective towns, and all venires for jurors to be returned from
cities shall be served on the mayor and aldermen.
Empanellingju-
rics for civif
causes.
E. S. 95, §§ 20,
21.
supcrnumora-
rics, &c,
K. S. 95, § 21.
foreman to be
chosen by jury.
E. S. 95, § 22.
Empanellingju-
ries in criminal
cases.
R. S. 95, § 23.
6 Met. 226, 235.
See Ch. 172.
Talesmen,when
and how return-
ed.
E. S. 95,§24.
who and by
whom returned.
E. S. 95, §§25,
2fi.
6 Gush. 174.
EMPANELLING AND OTHER PEOVISIONS RESPECTING JTJEIES.
Sect. 23. On the day when the jurors are summoned to attend at
any court, the clerk sliall jircjKxre a list of their names arrangeil in al]}ha-
betical order. The first twelve on the Ust who are not excused shall be
sworn and empanelled as a jury for the trial of civil causes, and shall be
called the first jury. Tlie next twelve on the list shall tlien be sworn
and empanelled in like manner, and shall be called the second jury.
Sect. 2-4. Supernumerary jurors may be excused from time to time
until wanted, and may be put on either of the juries as occasion requires,
in the place of absentees. Nothing herein contained shall prevent the
transferring of jurors from one jury to the other, when the convenience
of the court or of the jurors requires it.
Sect. 25. Each jury after being thus empanelled shall retire and
choose their foreman by ballot, or shall make such choice upon retiring
with the first cause with which they are charged ; and whenever the
foreman is alisent or excused from further service, a new foreman shall
be chosen in like manner.
Sect. 26. Nothing contained in the jJreceding sections shall apply
to the empanelling of juries in criminal cases, but the jurors shall be
called, sworn, and empanelled anew, for the trial of each case according
to the established practice ; and their foreman shall be appointed by the
court or by the jury when they retire to consider of their verdict.
Sect. 27. Wlien by reason of challenge or otherwise a sufficient
number of jurors duly drawn and summoned cannot be obtained for the
trial of any cause, civil or criminal, the court shall cause jurors to be
returned from the bystanders, or from the county at large, to complete
the panel : />roy/rf'Y/, that there are on the jury not less than seven of
the jurors who were originally drawn and summoned as befoi'e provided.
Sect. 28. The jurors so returned from the bystanders shall be
returned by the sheriff or his deputy, or by a coroner, or by any disin-
terested person a))pointed therefor by the court, and shall be snch as are
qualified and liable to be di'awn as jurors according to the provisions
of law.
Chap. 132.] juries — empanelling, &c. 683
Sect. 29. The court shall, on motion of either party in a suit, Jurors may be
examine on oath any person who is called as a juror therein, to know a's to'lutereBX'
whether he is related to either party, or has any interest in the cause, *c.^ ^_ _^
or has expressed or fomied any opinion, or is sensible of any bias or lu'rick.'isa."
prejudice therein; and the party objecting to the juror may intro- "c^Jg,'. 2I5.
duce any other competent evidence in sujiport of the objection. If it
appears to the court that the juror does not stand indiflerent in the
cause, another shall be called and placed in his stead for the trial of
that cause.
Sect. .30. In indictments and penal actions for the recovery of any 'When interest
sum of money or other thing forfeited, it shall not be a cause'of chal- °ot '» d'^qu-J-
lenge to a juror that he is liable to pay taxes in any county, city, or k.s. !i5,§28.
town which may be benefited by such recovery. 1 Gray, 472. See ch. 122, § 13. u Met.''6fo.'
Sect. 31. If a party knows of any objection to a juror in season to objections
propose it before the trial, and omits to do so, he shall not afterwards l^'^g^fjlb.
be allowed to make the same objection, unless by leave of the court. \^?H- ■^' '''^•
2 Gray, 281. 2i"'=t.4,l.
Sect. 32. No irregularity in any writ of venire facias, or in the Certain irrcgu-
drawing, summoning, returning, or empanelling of jurors, shall be suf- lerST °°* ""*"
ficient to set aside a verdict, unless the party making the objection was }'p?,v''l'i j?^
injured by the irregularit}-, or unless the objection was made before the o i.jck.'55'o.
returning of the verdict. ' ^°'' ^~-'
Sect.33. If either party in a case in which a verdict is returned. Gratuities to ju-
during the same term of the court, either before or after the trial, gives E.''|5a5f™i™'
to any of the jurors who try the cause any thing by way of treat or
gratuity, the court may, on the motion of the adverse party, set aside
the verdict and award a new trial of the cause.
Sect. 34. When a jury, after due and thorough deliberation upon jury not to be
any cause, return into court without having agreed on a verdict, the 'h"n"wi™,°i^-
court may state anew the evidence or any ])art of it, and explain to less.&c. '
them anew the law applicable to the case, and may send them ont for ' ' ®^' * '
further deliberation ; but if they return a second time without having
agreed on a verdict, they shall not be sent out again without their own
consent, unless they shall ask fi-om the court some further explanation
of the law.
Sect. 35. The jury in any case may, at the request of either party, court may di-
be taken to view the" premises or place in question, or any property, r^'J^'' '■"=^''' ^^
matter, or thing relating to the controversy between the parties, when K.s. 95, §33.
it ap]iears to the court that such view is necessary to a just decision :
provided, the party making the motion advances a sum sufficient to
defray the expenses of the jury and the officers who attend them, in
taking the view ; which expenses shall be afterwards taxed like other
legal costs, Lf the party who advanced them prevails in the suit.
penalties.
Sect. 36. If a person duly dra-«Ti and summoned to attend as a Fines on jurors
juror in any court neglects to attend without sufficient excuse, he shall attoud!'"" '"
pay a fine not exceeding forty dollars, which shall be imposed by the k. s. u'j, §19.
court to which the juror was summoned, and shall be paid into the
county treasury.
Sect. 37. When, by neglect of any of the duties required in this on officers and
chajiter to be performed by any of the officers or persons herein men- oji'^ers for ncg-
tioned, the jurors to be returned from anyplace are not duly drawn R. s. 95, §39.
and summoned to attend the court, every person guilty of such neglect
shall jiay a fine not exceeding twenty dollars, to be imposed by the
same court to the use of the county in which the offence is committed.
Sect. 38. If such neglect occurs with regard to jurors required to of™»h^^r'
serve on any other occasion than in the supreme judicial court, the miUs" &c.
684
JUDGMENT AND EXECUTION.
[Chap. 133.
R. S. 95, §40.
1852, 314, § 7.
1859, 106.
PunishiDpnt for
fraud in draw-
ing jurors.
R. S. ".»5, §41.
1839, 135,
superior court, or before any justice of tlie peace or police court, the
sheriff or other officer before wliom the jurors were required to a|.)pear
shall make known the fact to the superior court, next to be held in the
same county, and the court, after due examination and a hearing of the
parties who are charged, shall impose the fine.
Sect. 39. If any city or town clerk, selectmen, mayor, or alderman
is guilty of fraud, either by practising on the jury box previously to a
draft, or in drawing a juror, or in returning into the box the name of
any juror which had been lawfully drawn out and drawing or sub-
stituting another in his stead, or in any other way in the drawing
of jurors, he shall be punished hyaline not exceeding five hundred
dollars.
SiJCcial juries
not atFected.
R. S. 95, § 42.
1837, 228.
1838, 73.
1839, 149.
EXCEPTIONS' OF SPECIAL JURIES.
Sect. 40. Nothing contained in this chapter shall affect the power
and duty of coroners or magistrates to summon and empanel jurors
when authorized by other provisions of law.
CHAPTER 133.
OF JtJDGMENT AND EXECUTION.
entering judgment ; awarding and issu-
ing execution.
Section
1. Judgment, of what day to be entered.
2. Award of judgment on default.
3. Court may order damages to be assessed
by jury.
4. or the damages may be ascertained by
the clerk in certain cases.
5. Judgment may be rendered against such
defendants as are defaulted, &c.
6. how entered, and separate executions
Issued.
7. to be entered as of a former term in cer-
tain cases.
8. Interest on awards, reports, verdicts, judg-
ments, &c.
9. Judgment on forfeiture of a penalty.
10. For what sum execution shall issue, and
how determined.
11. Scire facina to recover further damages.
12. Proceedings thereon.
13. Plaintiff may sue for damages instead of
penalty.
14. Execution, when action is brought in erro-
neous venue.
15. when to issue.
10. not to issue after one year, &c.
17. Remedy for creditor after time for taking
out execution.
18. when a levy is not effectual.
19. When property, &c.,of a stockholder taken
on execution against a corporation is recov-
ered back.
20. Executions, forms of.
21. changes in, to be under control of S. J. C.
22. when returnable.
SET-OFF OF EXECUTIONS.
23. Executions may be set ofl".
24. Proceedings for that purpose.
25. Such set-off, when not to be allowed.
levy of executions and personal prop-
erty exempt therefrom.
Section
20. Creditor may direct mode of service.
27. Officer, how to levy on real and personal
estate.
28. how on property of a corporation.
29. What goods liable to execution.
30. Current coin.
31. Bank notes.
32. What goods are exempt.
33. Officer may demand security of creditor.
SALE, &C., of goods TAKEN ON EXECUTION.
34. Goods, how sold on execution.
35. Notice of sale, how given.
36. how when value exceeds $300.
37. Sale may be adjourned, &c.
."jS. Ke-sale to be made, in case, &c.
39. Return of execution. Liability for fraud.
40. Proceeds of sale, how disposed of.
41. when liable to two or more creditors.
42. when there have been successive attach-
ments.
LEVY, &C., ON SHARES IN CORPORATIONS.
43. Shares in incorporated companies.
44. 45. Proceedings.
45. Officer of company to make known the
shares held by debtor.
47. to give new certificates to purchaser.
48. Purchaser entitled to dividends after attach-
ment.
LEVY, &C., ON TERMS FOR YEARS.
49. Terms for years, when to be levied on as
real or personal estate.
SUSPENSION OF LEVY.
50. 51. Execution suspended by prior attach-
meut.
Chap. 133.]
ENTERING JUDGMENT.
685
death, &c., of officer or party after
commencement of levy.
Section
52. Case of death, &c., of officer after beginning
to serve an execution.
53. Case of removal, A-c, of officer.
51. Case of death of cither party.
recording of certain executions.
Section
55. Execution on writ of entry to be recorded
in registry of deeds.
PENALTY ON OFFICER FOR NOT PAVING
MONEY COLLECTED.
56. Penalty for detaining money collected.
ENTERING JUDGMENT ; AWAEDmG AND ISSUING EXECUTION.
Section 1. Every judgment sli.all be entered as of the last day of judgment, of
the term in which it is rendered, unless tliere is an cx]iress order of the ^^Jji^'jlj"'' " ^^
court for the entry thereof on some other day ; in which case, the day K;f -.'J^ § i-
shall be noted by the clerk on his docket. The court may enter up s^Misl'^'iiV. '
judgment upon default at any time after four days from the day of J' ^^|^- ^m-
detault.
Sect. 2. When the defendant is defaulted in any stacje of the pro- Award of juds-
ceedings, the court shall award such judgment for the plaintiff as they i^XllV^
shall upon inquiry find to be just and proper; unless the plaintiff or de-
fendant moves to have the damages assessed by a jury, in which case
they shall be so assessed.
Sect. 3. The court may, in all cases in which damages are de- Court may or-
manded, refer the assessment thereof to a jury, although it is not brassSselby'
moved for by either party. Jj^''|- g, . ^
Sect. 4. In actions upon promissoiy notes and other contracts where or diunages
the amount due appears to be undisputed, the debt or damages may be may be asSer-
assessed and ascertained by the clerk, under a general order of the cie'-k iuttM-taiu
court or by a special reference of the case to him. Tlie judgment in J?''5!''-,j, , .
either case shall be entered in the same form as if it had been awarded
by the court on an assessment or computation made by themselves.
Sect. 5. In any action founded on a contract express or implied in Judgment may
which there is more than one defendant, the plaintiff shall be entitled agalM? ludi de-
to judgment .against such defendants as are defaulted, ami against those Ji''j-''|J]','f/\''™
who upon trial are found liable on the contract declared on, notwith- 1851,255, §i.'
standing it is found that all the defendants are not jointly liable thereon.
Sect. 6. In such action when any defendants are defaulted, and how entered,
upon trial any of the others are found liable, the court shall render ccutto'Jrissucdi
judgment both against those defendants defimlted and those found liable I'ssi. 255, §2.
for the debt or damages with costs to the time of the default, and
against those who defend, for all costs accruing after the default; and
shall issue sejiai'.ate executions on such judgment.
Sect. 7. When a motion for a new trial is overniled, the court shall to be entered
enter judgment as of the term wlien the verdict was rendered, if neces- ? erm ?/"c™t ain
sary or expedient to secui'e the riglits of the prevailing party, or prevent ^'l^.';'''- .,
loss by reason of the death of either party or otherwise. 2 Cush.'oh'
Sect. 8. When judgment is maile up upon an award of county com- interest on
missioners, a committee, or referees, or on the report of an auditor or venHcts judg-"'
master in chancery, or on a \erdict of a jury, interest shall be computed ^ij-*,!;?''"
upon the amount of the .award, rejiort, or verdict, from the time when isjo, 124'.
made to the time of making up the judgment. Every judgment for the
pa3'ment of money rendered subsequently to the sixth day of May in
the year eighteen hundred and forty-seven, shall bear interest from the
day of the rendition thereof. The warrant or execution issued on a
judgment for the payment of money, shall specify tlie day ujion which
judgment is rendered, and shall require the collection or satisfaction
thereof with interest fi-om the day of its rendition.
Sect. 9. In actions for a breach of the condition of a bond or to Judgment on
recover a penalty for the non-peiformance of a covenant, contract, or [",',',({"1'' °^'^
•agreement, when it appears by verdict, default, confession, or otherwise, i'- ^. 100, §8.
that the condition is broken or the penalty forfeited, judgment shall be 13* Gray, 157.
58
686
ISSUING EXECUTION, &c.
[Chap. 133.
For what sum
execution shall
issue, aud how
determined.
1{. S. 100, § 9.
Scire facias to
recover furtlier
durnages.
E. S. 100, § 10.
Proceedings
thereon.
E. S. 100, § 11.
Plaintiff may
sue for damages
instead of pen-
alty.
E. S. lOO, § 13.
Execution,
when action is
brought in er-
roneous venue.
1852, 312, § ?9.
when to issue.
R. S. <.)7, § 5.
8 Met. 406.
not to issue
after one year,
&c.
1R5',>, 18.
S Mass. 383.
Remedy for
creditor after
time for talcing
out execution.
E. S. 07, § 8.
1852, 312.
wlion a levy
is not effectual.
E. S. 97, § 4:1.
when proper-
ty, \'c.,of a
stockholder ta-
ken on execu-
tion against a
corporation is
recovered back.
1851, 213.
Executions,
forms of.
17N4, 28.
K. S. 73, § 54.
E. 8.07, §10.
\Ka, 2(i9, § 1.
10 -Met. 330.
See Ch. 103, § 47
entered for the penal sum, but no execution shall issue thereon except
as is provided in the following sections.
Sect. 10. The court shall award an execution for so much of the
penal sum as is then due and payable in equity and good conscience for
the breach of the condition, or other non-performance of the contract.
The sum shall be ascertained and determined by the court, unless the
court thinks proper or either party moves to have it assessed by a jury,
in which case it shall be so assessed.
Sect. 11. If any further sum afterwards becomes due on such bond
or other contract, the jilaiiitiff, his executors, or administrators, may
have a scire facias, on the judgment, Irom the court in which it was
rendered, against the original defendant, his executors, .administrators,
heirs, devisees, or assigns, as the case may be, suggesting such further
bre.aches of the contract as have occurred, an<l summoning the adverse
p.arty to show cause why execution should not be awarded upon the
judgment for the damages caused by such further breaches.
Sect. Vl. The sum due in such suit shall be .assessed and determined
in the same manner as in the original suit, and execution awarded
accordingly ; and like proceedings may be repeated upon occasion of
further breaches of the same contract, as often as they occur until the
whole of the penalty is exhausted.
Sect. 13. Nothing herein contained shall prevent any person from
bringhig an action for the breach of any covenant or other contract,
instead of suing for the penalty by which the performance of the cove-
nant or contract was secured.
Sect. 14. When judgment is rendered in a local action brought in
an erroneous venue, the court shall cause its writ of possession or other
needful writ of execution to be directed to the sheriff of the jiroper
county, so th.at the judgment may be duly executed.
Sect. 15. No execution shall be issued within twenty-four hours
after the entry of judgment.
Sect. 16. No original execution shall be issued, unless within one
year after the party is entitled to sue out the same ; and no alias or
other successive execution shall be issued afterwards, unless sued out
within live years after the return day of that which preceded it.
Sect. 17. If a judgment remains uns.atisfied .after the expir.ation of
the time for taking out execution thereon, the creditor m.ay have a scire
facias to obtain a new execution, or he may at any time after the judg-
ment have an action of contract thereon.
Sect. 18. If an execution is returned s.atisfied in whole or in part by
the sale of property not liable to such execution, and if damages are
recovered against the judgment creilitor or the officer who served the
execution on account of the seizure and sale of the property, the cred-
itor may ha\e a writ of scire facias on his judgment, and .shall there-
upon be entitled to a new execution for the sum then remaining justly
and equitably due to him.
Sect. 19. If an execution against a corporation is satisfied in whole
or in part liy service or levy on the person or property of any member
thereof, and the projierty levied on, or damages for service or levy, are
subsequently recovere<l by such member from the officer or judgment
creditor, the creilitor may ha\-e a writ of scire facias on his judgment,
.and shall thereupon be entitled to a new execution for the sum remain-
ing justly and equitably due to him.
Sect. 20. Tiie forms of executions shall be the same as heretofore
established by law ami the usage and practice of the courts. Execu-
tions issued upon judgments in civil actions in favor of the common-
wealth sh.all be in form like those in favor of citizens. Executions issued
by a justice of the peace, or police court, for a sum as damages exceed-
ing twenty dollars, shall be so framed as to direct a levy upon the lands
Chap. 133.] * set-off of executions, levy, &c. 6S7
and tenements of the debtor. Alterations in the forms may from time
to time be made, or allowed by the courts, when necessary to adajJt
them to changes in the law, or for other sufficient reasons.
Sect. 21. All changes in the forms of executions shall be subject to Executions,
the fiu.il control of the supreme judicial court, and said court may by bemSerco'nteoi
general rules regulate such changes in all courts of the state. ^'^^■''•,^-
Sect. 22. All executions shall be made returnable in sixty days from wiienreturna-
their date. bie.
lSo2, 312, § 83.
SET-OFF OF EXECtTTIONS. 4 Cush^V""*'
Sect. 23. Executions between the same parties may be set off one maybesctoff.
against another, if required by either party, as prescribed in the follow- Spjck^'lio!'
ing sections. " i3 Met. 482. Tiiet. 5oi). ■
Sect. 24. When one of the executions is delivered to an officer to Proceedings for
be served, the debtor therein may deliver his execution to the same ^^^f^^^^t'.
officer, whether the second execution is directed to the same or to any
other officer, and the officer shall apply it as far as it will extend to the
satisfaction of the first execution ; ami the balance due on the larger
execution may be collected and paid in the same manner as if there had
been no set-off.
Sect. 26. Such set-off shall not be allowed in the following cases : — Such set-off.
First. When the creditor in one of the executions is not, in the ^no™ed°'^ *° ^
same capacity and trust, the debtor in the other; f\f't%'^~'''
Second. When the sum due on the first execution was lawfully and
in good faith assigned to another person before the creditor in the
second execution became entitled to the stma due thereon ;
Third. When there are several creditors in one execution and the
sum due on the other is due from a part of them only ;
Fourth. When there are several debtors in one execution and the
sum due on the other is due to a part of them only ;
Fifth. Nor shall it be allowed as to so much of the first execution as
is due to the attorney in that suit for his fees and disbursements therein.
LETT OF EXECUTIONS, AXD PEESOXAL PROPERTY EXEMPT THEREFEOM.
Sect. 26. When an execution is in the alternative, so that it may be Creditor may
lawfully served in either of two or more ways, the creditor or his at- service,
tornev may require the officer to serve it in either wav; and the officer ?,•,*.•'"' §,'r-
,n'(. IT • •/.■I. ' o^ 111- 11 Mass. .11/.
shall coniorm to such directions it in his power. .ioray, -ki,. 2 Gray, 210.
Sect. 27. If the creditor directs an officer to levy his execution on Officer, how to
real estate, the officer shall serve it as prescribed in cha)3ter one hundred p7rso°nare'state'
and three. If he directs the officer to levy it on the goods of the e. s. 97, §§i6,
debtor, the officer shall serve it as hereinafter provided. 7 jjass. 123.
Sect. 28. Executions against corjjorations, when levied upon .anj' how on prop-
corporate pro])erty, shall be levied in the same manner as other execu- rSfon!^ '"^°'^^°'
tioiis are levied, except in the cases provided for in chapters fifty-seven R. s. 97, §42.
and sixty-eight.
Sect. 29. All ch.ittels, real or personal, and all other goods which by what goods lia-
the common law are liable to be tnken on execution, may be taken and tion'.° ''^'^™
sold thereon, except as is otherwise provided in this chapter. k. s. o". § '9.
17 JIass. 409. 3 Pick. 3CS. ''^*'
Sect. .30. Current cold or silver coin mav be taken on execution, and £"0''''?^ V^'
7 -1.1 ^T ,1 ' 1 K. b. y. ,§20.
may be paid to the creditor as money collected.
Sect. 31. Bank notes and all other bills or evidences of debt, issued Banknotes.
by a moneyed corporation and circulated as money, may be taken on 4nVh!'r."i9s.
execution and paiil to the creditor at their par value as money col- 5 ?{"^'- j'^-
lected if he will accept them ; otherwise they shall be sold like other 9 Mass! 537!
chattels. 20 rick. 352. 1 Pick. 271.
Sect. 32. The following articles of the debtor shall be exempt from What goods are
execution, viz.:- SSLn.""'
688
EXECUTION — GOODS EXEMPT, SALE, &c., ON. [ChaP. 133.
1857, 235.
1859, 1-a.
3 Mass. 198.
5 Mass. 313.
13 Maes. 82.
15 Mass. iro,
205.
2 Pick. 80.
10 Pick. 423.
19 Pick. 470.
10 Met. 500.
4 Cush. 359.
6 Gray, 29S.
7 Gray, C7, 70.
Officer may de-
mand security
of creditor.
K. S. 97, § 18.
First. The necessary wearing apparel of himself and of his wife and
children ; one bedstead, bed, and the necessary bed<ling for every two
persons of the family ; one iron stove used for warming the dwelling-
house, and fuel not exceeding the value of twenty dollars procured and
designed for the use of the f hmil)^ ;
Second. Other household furniture necessary for him and his flimily,
not exceeding one hundred dollars in value ;
Third. The bibles, school books, and library, used by him or his fiim-
ily, not exceeding fifty dollars in value ;
Fourth. One cow, six sheep, one swine, and two tons of hay;
Fifth. The tool.s, implements, and fixtures, necessary for carrying on
Ms trade or business, not exceeding one hundred dollars in value ;
Sixth. Materials and stock designed and procured by him, and
necessary for carrying on his trade or business, and intended to be used
or wrouglit therein, not exceeding one hundred dollars in value ;
Seventh. Provisions necessary and procured and intended for the use
of the fomily, not exceeding fifty dollars in value ;
Eighth. One pew occujiied by him or his family in a house of public
worship : pi'omded, that nothing herein contained shall present the sale
of any pew for the non-payment of any tax legally laid tliereon ;
Ninth. The boat, fishing tackle, and nets of fishermen, actually used
by them in the prosecution of their business, to the value of one hun-
dred dollars ;
Tenth. The uniform of an officer or soldier in the militia, and the
arms and accoutrements required by law to be kept by Mm ;
Eleventh, liights of burial and tombs while in use as repositories for
the dead.
Sect. 33. If there is reasonable doubt as to the ownership of the
goods, or as to their liability to be taken on the execution, the officer
may require sufficient security to indemnify him for taking them.
Goods, how
sold on execu-
tion.
E. S. 97, § 23.
14 Mass. 473.
Notice of sale,
how given.
E. S. 97, § 24.
liow when
value exceeds
.5300.
K. S. 97, §25.
Sale may be ad-
journed, &c.
R. S. '.)?, § 20.
9 Mass. 205.
Resale to be
made in case,
&c.
R. S. 97, § 27.
SALE, &C., OF GOODS TAKEX ON EXECUTION.
Sect. 34. Goods seized on execution shall be safely kept by the
officer, at the expense of the debtor, for four days at least; and shall be
sold by public auction within fourteen days next after the seizure except
as hereinafter jjrovided, unless the debtor before such sale redeems them
by otherwise satisfying the execution.
Sect. 35. The officer shall give public notice of the time and place
of the sale, by causing notifications thereof to be posted up forty-eight
hours at least before the time of sale in some public ]:)lace in the city or
town where the sale is to be made, or by causing an advertisement of
the time and place of sale to be jniblished in some newspaper printed La
the county, if there is any such jtajjor.
Sect. 36. If the value of the goods to be sold exceeds three hun-
dred dollars, the officer, if requested by either party, shall give notice
of the sale by advertisement in a newspaper as provided in tlie preced-
ing section ; and the sale may be made at any time after the exjiiration
of four days, and within tliirty days after the seizure on execution.
Sect. 37. If at the time appointed for the sale the officer considers
it for the interest of all persons concerned therein to postpone the sale
for want of ])urchasers or other sufficient cause, he may postpone it for
any time not exceeding seven days, and so from time to time, for like
good cause, until the sale is completed; giving notice of every such
adjournment by a public declaration thereof at the time and place jire-
viously appointed for tlie sale.
Sect. 38. If tlie highest bidder for any article at such sale refuses to
take and pay for it, the officer shall sell it again by auction, at the same
time or within ten days thereafter, giving notice of the second sale ; and
Chap. 133.] levy of execution on shares in corporations. 689
he shall account for what he receives on the second sale, and for any r siaes. 302.
damages recovered of the first bidder for a loss on the resale, as for so
much received on the execution.
Sect. 39. The officer making such sale shall in his return of the ex- Return of cxc-
ecution particularly describe the goods sold, and the sum for which each It'y'fo'r fraud!"
article was sold ; and if he is euUty of fraud in the sale or return, he R- s. 40, § 13.
shall be liable in an action of tort, at the suit of the party injured, for 1852,312.
five times the amount of the actual damage sustained by reason of such
fraud.
Sect. 40. The money arising from the sale shall be applied to pay- Proceeds of
ing the charges and satisfying the execution, and the officer shall return pos'id'or "^^
the residue, if any, to the debtor on demand, or shall apply and pay over «■ s. »r, § 29.
the same as provided in the following sections.
Sect. 41. If the goods sold on execution have been attached by when liable
another creditor, or seized on another execution, either by the same or e^e'dTtore! """
any other officer, or if before the payment of such residue to the debtor i'- S. u?, § 30.
another writ of attachment or execution against him is delivered to the
officer who made the sale, the jn'oceeds of the sale shall be applied to
the discharge of the several judgments in the order in which the respec-
tive writs of attachment or execution were served, and the residue, if
any, shall be returned to the debtor.
Sect. 42. If an attachment or seizure on execution is made of a when there
share in any incoi-porated company, or of any other property which may cessireattach-
be attached without t.ikintr and kecpins; the exclusive possession thereof, ments.
and if the same property is subsequently attached or taken in execu- gkaBs.'^os. '
tion by another officer, he shall give notice thereof to the officer who
makes the sale under the first attachment or seizure ; and if the latter
without such notice pays to the debtor the balance of the proceeds of
the sale, he shall not be liable therefor to the person claiming under
such subsequent attachment or seizure.
LEVT, &C., ON SHARES IX CORPORATIONS.
Sect. 43. The sh.are or interest of a stockholder in any cor]30ration shares in incor-
established under the authority of this state, may be taken on execution Plated comiiu-
and sold as hereinafter provided. R- s.97, §30.
Sect. 44. If the property has not been attached in the same suit. Proceedings,
the officer shall leave an attested copy of the execution with the clerk, E-S. 97, §37.
treasurer, or cashier, of the company, if there is any such officer, other-
wise with any officer or person having the custody of the books and
papers of the corporation ; and the property shall be considered as
seized on execution when the copy is so left, and shall be sold in like
manner as goods and chattels.
Sect. 45. If the share is already attached in the same suit, the officer same subject,
shall proceed in seizing and selling it on the execution, in the same m.an- ^- ^- "''' ^^*''
ner as in selling goods and chattels.
Sect. 46. The officer of the company wlio is appointed to keep a oakerofcom
record or account of the shares or interest of the stockholders therein, jJ™^^°tJJ{;'''''
shall, upon the exhibiting to him of the execution, be bound to give a shares held by
certificate of the number of shares or amount of the interest held by k.'s°97, §39.
the judgment debtor, in like manner and \\\nm the like penalty as is SeeCh.i23,{(i.
prescribed in chapter one hundred and twentj-three upon the exhib-
iting to him of a writ of attachment.
Sect. 47. An attested copy of the execution and of the return to Rive new
thereon sliall within fourteen days after the sale be left with the officer pu'^eimser! *"
of the company whose duty it is to record transfers of shares; and the U.S. 97, §40.
purchaser shall thereupon be entitled to a certificate or certificates of
the sliares bought by him, upon paying the fees therefor and for record-
ing the transfer.
5S» 87
690 SUSPENSION OP LEVY, DEATH OP OFFICER, &c. [ChaP. 133.
I'urchaser enti- Sect. 48. If the shares or interest of the judgment debtor had
dei?ds''aft " at- been attached in the suit in whicli the execution issued, tlie purchaser
tachment. shall be entitled to all the dividends which have accrued after the
R.s.97,§ii. attachment.
LEVY, &C., ON TERMS FOR YEARS.
Terras for ^ Sect. 49. Tei'ms for years, when the original lease was for one
hundred years or more, and so long as fifty years or more thereof re-
main unexpired, shall be regarded as real estate so for as concerns the
levying of an execution thereon. Other terms for years shall be seized
i847,ao7>§4- and sold on execution in like manner as personal chattels, except that
See Ch. 90, § 20, .. «. . « ... .. .,..*« , . ' . ^ „ .
years, when to
be levied on as
the officer before selling the same shall give fourteen days' notice of the
time and place of sale, by leaving notice thereof in writing with the
debtor personally or at his last and usual place of abode, and by posting
notice on the demised premises.
SUSPENSION OP LEVY.
Execution sus- Sect. 50. When any estate, either real or person.il, is seized on exe-
attachment^'^'"'^ cution, and the further service of the execution is suspended by reason
K-S-y;i§34. of any prior attachment on the same estate, the estate shall remain
5Met!uo.' ' bound by such seizure until it is set off or sold, in whole or in part, un-
der the i^rior attachment, or until that attachment is dissolved.
Same subject. Sect. 51. If the estate is set off or sold in part under the prior at-
K. S. 97, § 35. tachment, or if that attachment is dissolved, the estate, or such part
thereof as remains undis]30sed of, shall continue bound for thirty days
thereafter, by the seizure on the execution ; and the service of the exe-
cution may be completed in like manner as if the estate had been iirst
seized thereon at any time within said thirty days, although the return
day of the execution has passed.
DEATH, &C., OF OFFICER OR PARTY AFTER COMMENCEMENT OF LEVY.
Cascofdeatb, Sect. 52. When an officer has begun to serve an execution and
ter'be^i'Minl'v'to ^^^^i or is incajiable of comjileting the service and return thereof, the
serve an exeou- same may be coin]:)leted by any other officer who might bylaw have
K° s. 97, § 13. served the execution if originally delivered to him. If the first officer
2 Pick. 270. ii;xg not made a certificate of his doings, the second officer shall certify
whatever he finds to have been done by the first, and shall add thereto
a certificate of his own doings in completing the seiwice.
of removal, Sect. 53. When an officer has begun to serve an execution, he may
k'^s°97"ui'^' comjjlete the service and return thereof although lie is removed from
0 Mass. 20. office, or the service cannot be completed until after the return day.
" o'f deaHi of Sect. 54. If either party dies after any real estate, goods, or chat-
eithor party. tcls, have bccu Seized on execution, the service thereof may be com-
'j"i,i:[ss.'-I»^' pleted in like manner and with the same effect as if both parties were
3 Met. 253. still living, and the officer, when necessary, may appoint an appraiser
for the deceased party.
RECORDING OF CERTAIN EXECUTIONS.
Execution on Sect. 55. When an execution issuing upon a judgment in a writ of
te reeordMi m'° entry for the possession of real estate is served by an officer, he shall,
'■ej,^stry of within three months after the service and before the return thereof into
i»is,''i44, § 1. the clerk's office, cause the execution with his doings thereon to be
' Kriy, 202. recorded in the registry of deeds for the county or district in which the
estate is situated, the expense of which shall be added to the charge for
service.
Chap. 134.]
WRIT OP ENTRY, &C.
691
PEXAXTT OSr OFFICER FOR NOT PATrtfG MOiraiT COLLECTED.
Sect. 56. If any officer unreasonably neglects to pay any money Penalty for de-
collected by liini on execution, when demanded by the creditor therein, coUccte"™'^^
he shall forfeit and pay to the creditor five times the lawful interest of ?• S- '■•''• .5^^-
the money from the time of the demand until it is paid. 4 iiet. m '
TITLE III,
OF REMEDIES RELATING TO REAL PROPERTY.
CttiPTER 134. — Of the Writ of Entry, and Petitions for the Settlement of Title.
ClL^PTER 135. — Of the Writ of Dower.
Chapter 136. — Of the Partition of Lands.
Chapter 137. — Of Forcible Entry and Detainer.
Chapter 138. — Of Waste and Trespass on Real Estate.
Chapter 139. — Of Actions for Private Nuisances.
Cu.\PTER 140. — Of the Foreclosure and Redemption of Mortgages.
Chapter 141. — Of Informations for Intrusion and the Recovery of Lands by the
Commonwealth.
CHAPTER 134.
OF THE "WRIT OF ENTRY, AND PETITIONS FOR THE SETTLEMENT OF
TITLE.
Section
1. Action to recover the freehold.
2. Declaration therein.
3. Proof of the seisin alleg:c{l.
4. Deseent, &c., not to bar right of entry,
5. 0. What constitutes a disseisin.
7. Proceedings on the trial.
8. Pleadings and evidence.
9. Joint tenants, &e.y how to sue.
10. Demandant may recover part, &c.
11. On death of either party, action may pro-
ceed, &c.
12. Pleadings.
13. Damages may be recovered in same action.
14. may be assessed by same jury, unless,
&c.
15. Rents and proflts, how to be estimated.
16. t'se of nnproveraents not included.
17. Limitation.
18. Tenants for six years allowed for improve-
ments.
19. so when for less than six years if under
title, &e.
20. Proceedings for obtaining such allowance.
Section
21. When suggestion entered.
22. Amount may be assessed by the jury on
the trial, or afterwards.
23. How to be assessed, upon default, &c.
24. Slay be assessed by arbitrators, &c.
25. Allowance for improvements, how limited.
26. Improvements and damages to be set off.
27. Demandant, when to pay for improve-
ments, ttc.
2S. Further provisions as to set-off.
20. Demandant's remedy against other tres-
passers.
30. Value of premises, without improvements,
may be ascertained, &c.
31. How to be estimated .and assessed.
32. Demandant may relinquish his estate, &c.
33. Time may be allowed for making the elec-
tion.
34. Tenant to hold estate upon paying value
assessed.
35. To be paid in three annual instalmentB,
30. Upon failure to pay, demandant entitled to
his writ of seisin, &c.
692
WRIT OF ENTRY.
[Chap. 134.
Sectioii
37. Execution mtiy be issued after the year,
when, &c.
38. Remedy lor tenant in case of a subsequent
eviction.
39. if he has given notice, &c.
40. if notice not given.
41. On the dcatli of eitlier party after judg-
ment, money may be paid, A-e.
42. Writ of seisin, iu whose name to issue in
such case.
Section
43. Upon a recovery by tenant for life, rever-
sioner, &c., to be liable.
44, 45. Amount, how ascertained.
46. Limitation.
47. This chapter not to apply to a mortl^agee.
48. Certain real actions abolished. Saving for
minors and others.
49. Party in possession claiming* freehold, &c.,
may petition S. J. C. to compel claimant to^
try title.
50. Proceedings on such petition.
Action to recov-
er tlie freehold.
I:. S. 101, § 1.
i; Cush. 265.
! ■•"clar.'ition
t.K-rein.
i<. .S. 101, §§2,3.
:! .Met. 341.
1 Cush. 468.
Hiie Ch. 129, § 3.
Proof of the
seisin allejjed.
it. .S. 101, § 4.
Descent, &c.,
not to bar right
of (!iitry.
R. S. 101, §5.
What consti-
tutes a disseisin.
It. .S. 101, § 6.'
Same subject.
R. S. 101, §7.
2 Gray, 135.
Proceedings on
tlie trial.
R. S. 101, §8.
i'leadings and
eviileuce.
):..S. 101, §9.
.Sec Ch. 129, §84.
.li lint tenants,
«V >;., how to sue.
):. .s. 101, § 10.
6 liray, 428.
T>emandantmay
r -oover part,&c.
P. S. 101, § 11.
2 I'ick. :;«(.
3 I'ick. 52.
9 i'ick. 2W.
On death of ei-
tlier party ac-
Section 1. All estates of freehold, whether in fee simple, fee tail, or
for life, may be recovered by a writ of entry upon disseisin, unless a
different action is prescribed by law.
Sect. 2. The demandant shall declare on his own seisin within
twenty years then last past, without specifying any particular day, and
shall allege a disseisin by the tenant, but need not aver a taking of
the profits; and he shall then set forth the estate that he claims in the
premises, whether it is in fee simple, fee tail, or for life, and if the latter
whether it is for his own life or for the life of another, but he shall not
be required to set forth the original gift, devise, or other conveyance or
title, by which he claims the estate.
Sect. 3. The demandant shall not be required to prove an actual
entry under his title, but if he proves that he is entitled to such an
estate as he claims in the premises, whether as heir, devisee, purchaser,
or otherwise, and iilso that he has a right of entry therein, this shall be
deemed sufficient proof of his seisin as alleged in the declaration. No
such action shall be maintained unless the demandant has at the time of
commencing the same a right of entry into the premises.
Sect. 4. No descent or discontinuance shall take away or defeat any
right of entry or of action for the recoveiy of real estate.
Sect. 5. Every person who is in possession of the premises demanded
in such writ of entry, claiming any estate of freehold therein, may be
considered as a disseisor for the ])urpose of trying the right, whatever
was the manner of his original entry on the premises.
Sect. 6. If the person in possession has actually ousted the demand-
ant or withheld from him the possession of the premises, he may, at the
election of the demandant, be considered as a disseisor for the purpose of
trj'ing the right, although he claims therein an estate less than a freehold.
Sect. 7. Every suit upon such writ of entry shall be prosecuted and
conducted in the same manner as if the demandant had at the time of
commencing the action made an actual entry on the demanded premises,
and had been immediately ousted by the tenant ; so that on a trial ujion
the general issue, if the demandant proves that he is entitled to such
estate in the premises as is set forth in tlie declaration, and that he had
a right of entry on the day when the action was commenced, he shall
recover the premises, unless the tenant proves a better title in himself.
Sect. 8. The law .and practice relating to the pleadings and evidence
in the action or writ of entry on disseisin, as now recognized and estab-
lished, shall continue in force, except so far as they are altered by the
provisions of this chapter, and chapter one hundred and twenty-nine.
Sect. 9. Any two or more ])ersons claiming the same premises as
joint tenants, tenants in common, or coparceners, may join in a suit for
the recovery thereof, or any one may sue alone for his share.
Sect. 10. The demandant may recover any specific part of the prem-
ises or any undivided portion thereof to which he proves a sufficient
title, though such jiart or jiortion is less than is demanded in the writ.
Sect. 11. Upon the death of either demandant or tenant, the action
may proceed by or against the survivors and the heirs or devisees of the
Chap. 134.] writ of entry. 693
deceased paity, in the iiumncr prescribed in chapter one hundred and tionmaypro-
twenty-seven. u. s. loi, §12.
Sect. 12. Non-tenure, disclaimer, several tenancy, and sole tenancy, vicadings.
may be pleaded in .ibatement or given in evidence under the general ll^^f,^ 2:3' I j^'
issue, but the party shall be allowed such costs only as accrue alter the 2 x. h. lu, U2.
filing of the plea. '^ mass. 4.10. 12 Met. 154. - Cush. 502. 4 Gray, 55. !■* ^"^8- 239.
Sect. 1.3. If the demandant recovers judgment in a writ of entrj-, he Damag-cs may
shall be entitled to recover in the same action damages for the rents and same'acUon? ""
profits of the premises, from the time when his title accrued, subject to }'■ s. 101, § h.
the limitations hereinafter contained ; and he shall also recover damages Ti Cusi. 267.
for an)' destruction or waste of the buildings or other property, for ■'Gray, 57.
which the tenant is by law chargeable.
Sect. 14. If an issue of flict is found for the demandant, the jury shall may be as-
at the same time assess his damages, unless it is otherwise ordered by Jury^nies^s'^c.
the court .is hereinafter provided. i^-'S- loii § is-
Sect. 1.5. The rents and ]>rofits for which the tenant is liable sh.tll licnts and prof-
be the clear annual value of the premises for the time during which he estimated" '"^
was in possession thereof, after deducting all lawful taxes and assess- li. s. ioi,_§io.
ments on the premises that h.ave been paid by him, and all the necess.ary ii cusU.'m'q.
and ordinary expenses of cultivating the land, or of otherwise collecting
the rents, profits, or income, of the premises.
Sect. 16. In estimating the rents and profits, the v.T,lue of the use by I'scofimprovc-
the tenant of any improvements, whether made by himself or those °iuded."°*'°
under whom he claims, shall not be computed nor allowed to the k-S- ioi,§i7.
demandant. 4Cowcn, les. ccush. 26u. 12 Mass. 314.
■tecT. 17. The tenant shall not be liable for the rents and profits for Limitation,
a longer term than six years, nor for an}- waste or other damage com- o'cu'sh^kel.^^'
mitted before that time, unless when the rents and profits are allowed Sce§2s.
by way of set-ofi'to his claim for improvements, as hereinafter provided.
Sect. 18. If the demanded premises have been actually held and Tenants for sue
possessed by the tenant in the action, and by those under whom he )ij7improve'^
claims, for six years next before the commencement of the action, he mints.
• •■-• - ••11^ 101 S 19
shall, if judgment is against him, be entitled to compensation in the ri iiass.'sM. '
manner hereinafter provided for the v.alue of any buildincs or improve- !;' ^I"^^-x11'
, i T , • 1 1 •■ , ,. 'T 15 Mass. 291.
ments made or erected on the preimses by himself, or by any jJerson 6 Pick. no.
unilcr whom he claims. ' ^'<''-^"'-
Sect. 19. The tenant sh.all also be entitled to the like compensation so when for
.although the premises have not been so held six years, if he holds them yca^rs'ifundcr
under a title wliich he had reason to believe good. 2 Caiiis, 105 7 Met. 310. '■"';•
OMass.30.'!. 10Cusb.45I. K.b.l01,§20.
Sect. 20. "When the tenant in the action claims .allowance for such Proceedings for
improvements, he shall enter on tlic record a suggestion of his claim, aiio«"m.l.'*"'
with a request that the value of the improvements may be ascertained i*- s. 101, § 21.
and allowed to him, if judgment is rendered for the demandant.
Sect. 21. The suggestion shall be entered at the same tenn with the when sugges-
plea, if any, unless the court for suificient reason allows it to be made i{"s™Ji'§''i2.
afterwards; and if judgment is rendered for the dem.andant without a
plea, the suggestion shall be entered at such stage of the proceedings
as the court prescribes or allows.
Sect. 22. If any issue of fact is tried in the case and found for the Amonntmaybe
demandant, the jury shall at the same time ascertain and determine the j'uryo'nthutria'i';
sum to be allowed to the tenant for such improvements, unless it appears or afterwards.
to the court, on the motion of either party, that it would be more con- '>i, ' ' *« >
venient to postpone the assessment of the sums due to the demandant
for the rents and profits or other damages, or to the tenant for iin]3rove-
ments, until after the trial of the title and a verdict thereon ; in which
case the court may make an order for that pui-jiose, at any time before
the verdict on the title is recorded.
Sect. 23. If the assessment of the sums due to either party is so How to be as-
694 WRIT OF ENTRY. [ChaP. 1C4.
»
ficssptiupon de- postponed, or if there is no issue of fact tried in the cause, and judpnent
kI's'io'i' ^25 i* to be rendered for the demandant, said sums shall be assessed by the
court, unless either party moves to have them assessed by a jury, or
unless the coiu't thinks projier to have them so assessed, in which cases
a jury shall be emiianelled for that purpose.
Damage may be Sect. 24. The suuis due for rents and profits, or other damages, and
assessed by ar- f^^^. iinpro\-ements, may in all cases be assessed by arbitrators or assessors
U.S. ioi,'§2iJ- appointed by the court with the consent of the parties.
Allowance for Sect. 2.5. The sum to be allowed for improvements shall never
iiow Umite'd*'' exceed the amount actually expended by the tenant and those under
R. s. 101, §t;r. whom he clahns, nor shall it exceed the amount to which the value of
the premises is actually increased thereby at the time of the assessment.
Improvements Sect. 26. When any sum is allowed to the tenant for imjirovements,
and dania^'es to j^ shall be set off asraiust the sum found due from him for rents and
DC set on. " ~ -I • n ^ • 11 T f 1- 1
K. s. 101, §M. profits and other damages; and it there is a balance due Irom him, the
demandant shall have judgment and execution therefor, as well as for
his seisin of the demanded premises.
Demandant, Sect. 27. If there is any sum due to the tenant for improvements
wiu-a to pay for aftgr deducting the rents and profits and other damages for which he
™. "^ ^ "^ ' may be found chargeable, the demandant shall before taking out his
K. s. 101, § 29. execution for seisin of the premises, pay the same to the tenant, or to
the clerk of the court for his use ; and the demandant shall not be
entitled to recover, .against the tenant or person claiming under him, any
rents and profits that accrue after the judgment and before he has paid
the sum so due. j^
Furtbcr provis- Sect. 28. If the Sum found due to the tenant for impro\'emems
ions as to set- exceeds the sum due from him for the rents and profits accrued within
U.S. 101, §30. the six years, he shall be chargeable with the rents and profits accrued
before that time, so far as may be necessary to balance his claim for
imjn-ovements ; but in such case he shall not be liable to repaj- any excess
of the rents and profits beyond the value of the improvements.
Demandant's Sect. 29. Nothing contained in this chapter sh.all prevent the de-
remedy against ^landant from maintaiiiins; an action of tresijass for mesne ijrofits, or
crs. tor damage done to the premises, against any person, except the tenant
ti'cush^ao!.^'' in the writ of entry, who may have had possession of the premises or
may be otherwise liable to such action.
Value of prem- Sect. 30. When the tenant in the action claims allowance for im-
i*''^'■^™L^?,1* ™" m-ovements as before provided, the demandant may, by a like entry on
maybciisccr- the record, require that the value of his estate m the demanded prem-
i'{"'s.''io*i,°§ 32. ises without the improvements be ascertained and determined.
Howtobeesti- Sect. 31. The value of the premises in such case shall be estimated
i™i"Jl ""** '''^" as it would have been at the time of the inquiry if no such buildings
11. s. 101, §33. or improvements had been made or erected on the premises by the ten-
ant or by any person under whom he claims ; and this sum shall be as-
certained anil deterniined, either by the court or jury, or by arbitrators
or assessors, in the same manner as is provided for assessing the siuns
due for rents and profits, and for im]irovements.
DcnLindant Sect. 32. The demandant in such case, if judgment is rendered for
Sstate,'&c.'' l>im» m^^y ■>* ■'>"y time during the same term by himself or his attorney
K. s. ioi, §§ 34, enter on the record his election to relinquish his estate in the premises
^' to the tenant, at the price or value thereof so ascertained .and determined.
Time may be ill- Sect. 33. If he requires further time to make his election, the court
S°^'Jii/°[,.^j'o''„. may, on his motion, suspend the entry of the judgment and continue
K.'s. 101, §36. ■ the cause, but without iiirther costs for him.
Tenant to hold Sept. 34. If he relinquishes the premises as before provided, the ten-
?ng°^aiu°aB^"''' ^nt shall thenceforth hold all the estate that the demandant had therein
sessed. at the commencement of the action: provided, he iiays therefor the es-
''"■ timated price or value thereof, in the manner following.
To be paid in Sect. 35. The piicc shall be paid in three equal instalments, -with
Chap. 134.] writ op entry. 695
interest nnnunlly; tlio first instalment to be paid on or before the expi- three annu.ii in-
ration of one year from the time when the demandant's election to re- gf s? wi^'s as.
linqnish the premises is entered on the record, the second, on or before
tlie expiration of two years from the time before mentioned, and the
third, on or before the expiration of three years from the same time.
Sect. 36. The sums shall be paid to the demandant or to the clerk Upon fdiuro to
of the court for his use, and if the tenant fails to make cither of the pay- ffiMTj'hiT'
ments witliin the times before limited therefor, resijcctivelv, the demand- writ of swsiu.
ant shall be entitled forthwitli to t.nke out his ^^Tit of seisin on the judg- ' "
ment recovered by him, and shall take and hold the {jremises without
allowance for any improvements made thereon.
Sect. 37. The expiration of a year atler the judgment shall not pre- Execution may
vent the issuinsj of the execution or writ of seisin in the case mentioned b" issued nfter
^1 I' ... , , .... the year wiion,
in the preceding section, but it may be taken out at any time ■mthin &c.
three months after such default of pajinent on the part of the tenant. ^'' ®' ^'"' §'"'•
Sect. 38. If the tenant or his heirs or assigns after the premises are Remedy for ten-
so relinquished to him are evicted thereof by force of any better title "n; i" I'-ieeofa
than that ot the original demandant, the person so evicted may recover eviction.
from his demandant or his executors, administrators, heirs, or devisees, ^''^^ '**''§*'•
as the case may be, the amount so paid for the iiremises, as so much
money had and received by such demandant in his lifetime for the use
of the plaintiff, with lawful interest from the time of such payment.
Sect. 39. If the tenant or person holding under him, when implead- ifhehas^iv-
ed in such second action for the recovery of the ])remiscs, gives notice iJ"s?*ioi'§42
thereof to the person so liable to refund the jiurcliase money, ami per-
mits him to defend the action, the judgment, if rendered against the
tenant ui the action, shall be conclusive as to his right to recover the
amount so paid for the premises.
Sect. 40. If the person impleaded does not give such notice to the if notice not
other party and iiermit him to defend the suit, the latter sliall be per- g'g"-Q, .^j
mitted in the suit afterwards brought against him for the price paid for
the premises, to deny the title upon wliicli the second recovery was had ;
and the party so evicted shall not recover said price unless he proves
that he was evicted by force of a better title than that of the onginal
demandant.
Sect. 41. If, after judgment is rendered for the demandant in a wi'it On the death or
of entry, either party dies before the writ of seisin is executed, or before J'/.r ';',',"] !?!-„,'[.[, t"'^'
the case is otherwise settled according to the foregoing ])rovisions, any money may be
money payable by the tenant may be paid by him or his executors or 'u.'s'. toi, § «.
administrators, or by any person entitled to the estate under him, to the
demandant or his executors or administr.ators, in like manner and with
the like effect as if both parties were living ; and any money payable by
the demandant may be paid by him, his executors, administrators, or any
person entitled to the estate under him, to the tenant or his executors
or administrators, in like manner and with the Uke eflect as if both par-
ties were living.
Sect. 42. When the writ of seisin is issued in such case, it shall be writ of seisin,
in the name of the orisrin.al demandant atrainst the oriirinal tenant, al- |" )''''°se n.ame
., ... , , ^^ , 11^11 1 . , 11 to issue m such
though either or both of them are dead ; and when executed, it shall case.
inure to the benefit of the demandant or whoever is entitled to the jsrem- ^'■*'' ""' ^*^-
ises ur r^ T him, in like manner as if it had been executed on the day
when Liic judgment was rendered.
Sect. 43. If the demandant in a writ of entry claims an estate for life Upon a recov-
only in the premises, and if he pays any sum allowed to the tenant for forhic'rcJer-
improvements, he or his executors or administrators at the determina- sioner.'&c, to
tion of his estate shall be entitled to receive of the remainder-man or u! s!ioi', §«.
reversioner the value of the imjirovements, as they then exist ; and shall
have a lien on the premises in like m.anner as if they had been mort-
gaged for the jiayment, and may keep possession until the sum is paid.
G96
[Chap. 134.
Amount, liow
ascertuiiictl.
K. S. 101, § 47.
8.11110 subject.
K. S. 101, §48-
Limitation.
K. S. 101, § 49.
This chapter
not It) iipply to
It mortj^jig'ce.
K. S. 101, §50.
Ccrt.aiii real ac-
tions abolished.
Saving for mi-
nora and otliers.
K. S. 101, §§61,
52.
Part J' in posses-
sion claiming
freeholll, &c.,
mav petition S.
J. r*. to compel
claimant to try
title.
IfSoJ, 312, § 52.
12 Cush. lt<5.
1 (iray, 41(1.
4 Gray, S2.
Proceeding^fl on
such petition.
1N52, liia, § 53.
1 Uray, 410.
Sect. 44. If the amount so due from the remainder-man or rever-
sioner is not agreed on by the parties, it may be ascertained and deter-
mined as is provided for tlie redem]3tion of a mortgage upon a suit
in equity, to be lirought by the remainder-inan or reversioner as mort-
gagor ; and tlie like proceedings shall be had as are prescribed in that
case for ascertaining the sum due for redemption of the premises, and
for the recovery thereof by the remainder-man or reversioner.
Sect. 45. The remainder-man or reversioner, or those claiming under
him, shall not in such ease be limited to the three years prescribed for
the redemption of a mortgage ; but they shall not in any case be en-
titled to recover from the ad\'erse party any balance in money, althougli
the rents and profits of the premises which accrued after the determina-
tion of the estate for life exceed the amount due for the improvements.
Sect. 46. Such remainder-man or reversioner and those claiming
under him shall be considered as disseised at the time of the determina-
tion of the life estate, so far as to bar their suit in equitj-, and all other
remedy by action or by entry, for the recovery of the premises after the
e.xpiratioii of the time prescribed for the limitation of the right of entry
and of action in cases of disseisin.
Sect. 47. ^Nothing contained in this chapter concerning the rents
and profits to be recovered in a 'writ of entry, or tlie allowance for im-
provements made on the demanded jiremises, or concerning the esti-
mated value of the premises without the improvements, shall extend or
apply to an action brought by a mortgagee, his heirs or assigns, against
a mortgagor or his heirs Or assigns, for the recovery of the mortgaged
f>remises.
Sect. 48. "Writs of right and of formedon, and all writs of entiy
except that which is allowed in this chapter, are abolished : provided,
that any person who on the thirty-first day of December in the year
one thousand eight hundred and thirty-nine was entitled to maintain
any of said actions, and was then within the age of twenty-one jears,
a married woman, insane, imprisoned, or without the limits of the
United States, may bring such action at any time within five years
after the disability shall cease, or after the death of the person so dis-
abled ; but no such action shall be maintained after it would have been
barred by the statutes of limitation in force at and immediately before
the time when the Revised Statutes took effect.
Sect. 49. Any person in possession of real property claiming an
estate of freehold or an unexpired tenn of not less than ten years, may
file a petition in the supreme judicial court setting forth his estate whether
of inheritance, for life, or years, describing the premises, aveiring that he
is credibly informed and believes that the respondent makes some claim
adver.se to the estate of the petitioner, and praying that ho maybe sum-
moned to show cau.se why he should not bring an action to try the
alleged title. Tliereupon the court .shall order notice to be given to
the respondent, and upon return of the order of notice, duly executed,
if the respondent so summoned makes default, or, having appeared, dis-
obeys the lawful order of the court to bring an action and try the title,
the court shall enter a decree, that he be forever debarreil and estopjied
from having or claiming any right or title adverse to the petitioner, to
the premise!; descriljcd. If "the petitioner prefers, such a petition may
be inserted like a declaration in a writ, and served by copy like a writ
of original summons.
Sect. 50. If the respondent appears and disclaims all right and title
adverse to the petitioner, he shall recover his costs. If he claims title,
he shall by answer show cause why he should not be required to bring
an action and try such title ; and the court shall make such decree
respecting the bringing and prosecuting of such action as may seem
equitable and just.
Chap. 135.] writ op dower. 697
CHAPTER 13 5,
OF THE -WHIT OF DOWER.
Section
1. Dower may be recovered by action.
2. must be previously dumauiled.
3. What a sufficient demand,
4. Damages.
5. Action against tenant of freehold. Dara-
a'jes.
Section
0. Damag;es afjainst prior tenant, in case, &c.
7. Writ of seisin, how executed.
S. when tenement cannot be divided.
0. Dower in certain cases of divorce,
10. General provisions.
Section 1. "Wlicn a "woman is entillcrT to dowor and it is not sot Dower, how r(^
out to her l>v the Iieir or otlier tenant of the tVet^-hold to her satisfaction i,"^T'T-*l' cr
according to the true iiitcndnu'iit of law, nor assio;iied to her by tlie k. s. nt!, §i.
probate ronrt, she may recover the same by a writ of dower in the i'KjkfjxoJsi?.
manner hereinafter ])rovided. o Gray, 314. SceCh. 00, §0. SMet. 2rr.
Sect. 2. She shall demand her dower of the person seised of the .mustbepre-
freehold at the time of makintr the demand, and shall not commence ^"""siy de-
her action thereior beioro the expiration ot one month, nor alter the h. s. 102, § a.
ex]iiration of one year, from such demand ; but tliis shall not jireelude '■ '*^'^*' ^^''
lier from making a new demand and commencing an action thereon.
Sect. -3. A demand of dower in writing, signed by the widow or by what a buIB-
her agent or attorney, containing a general description of the premises 5^"'4!S"n'''
in which the dower is claimed, and given to the tenant of the freehold
or left at liis last and usual place of abode, shall be a sufficient demand
of dower.
Sect. 4. If the demandant recovers judgment for her dower, she Damag-cs.
shall ill the same suit recover damages for its detention. ^'- ^- 102, §3.
Sbct. 5. The action shall be brought against the tenant of the free- Action against
liold at the time when it is commenced ; but if the demand was not f"'"!!!"',?.' '^^™"
made on him, he shall be liable for damages only for the time during k. s! 102, §-f.
which lie held the premises. jj: jJUg^; j^-
Sect. 6. In such case if the demandant recovers her dower and Dam-ises
dainaws in the writ of dower, she mav afterwards maintain an action "Sf'nst prior
n ■ , • /■ T ,•■ 1 1 1 /. 1 1 1 T tonaut, 111 case,
01 tort against the ])rior tenant 01 tlic ireehold ot whom her demand was &c-_,
made, for the rents and ])rutits for the time during which he held the Jlif/si?' ^ ^'
premises after the demand.
Sect. 7. If the demandant recovers her dower, a writ of seisin shall writ or seisin,
be issued, r;,:juiring the oflicer to cause it to be set out by three disin- J';" g ''i^':™/^'''
terested persons appointed by the court; and they shall be sworn be- isis, sir.'
fore a justice of the peace or the officer Avho servos the writ, to set out
the same equally and imjiartially, .and as conveniently as may be, ac-
cording to their best skill and judgment. Said persons may also be
authorized, by agreement of parties, to assess the damages for detention
of dower.
Sect. 8. When tlie estate consists of a mill or other tenement which whon-.one-
cannot be divided without damage to the whole, the dower may be as- dlvWed'"""""'
signed of the rents, issues, or profits, to be had and received by the k. s. iiw, §?.
demandant as tenant in common with the other owners. w Pick. 237! '
Sect. 9. A woman divorced fi-om her husband for the cause of Dower in cer-
adultery committed by him, or on account of his being sentenced to J'™ ™'"^'' °*^ '•'"
confinement to hard labor, may recover her do\\'^r in tlie manner pro- R. S. 102, §8.
vidcd in this chnpter against whoever is the tenant of the freehold.
Sect. 10. The jirovisions contained in chapter ninety as to the lands General provis-
out of which dower may be claimed, the manner in which it may be ',""^- .
barred, and the liability of the ten.ant for waste, shall be applied and " " '
enforced wlien dower is demanded or recovered by force of this chapter.
59 88
698
PARTITION OP LANDS,
[Chap. 136.
CHAPTER 136.
OF THE PARTITION OF LANDS.
in corrts of common law.
Section
1. Partition, how made.
2. upon petition by one or more.
3. by one who has an estate in possession.
4. by a tenant Ibr years, in wliat cases.
5. Duration of the partition.
C. Substance of the petition for partition.
7. Petition to be indorsed.
8. Filings and notice thereof.
9. Notice, how to be served.
10. to persons absent or nnkno^v^l.
11. Proceedings in such case.
12. Defects in service, how supplied.
13. Time allowed for absent parties,
H. Removal of petitions to S. J. C.
, 15. Guardian for infant, A:c.
16. Pleadings.
17. Replication by petitioner, &c.
IS. Proceedings thereon.
10. Costs of trial of an issue.
20. Interlocutory judgraout.
21. Commissioners to make partition.
22. to be sworn.
23. to give notice to all parties.
24. Acts of majority valid.
25. If several petitioners.
26. When money may be awarded to equalize
partition.
27. Liability of occupant to co-tenants in such
case.
28. Remedy of co-tenants for trespass by stran-
ger.
29. Return of commissioners, and judgment.
30. Appeal on petition for partition.
31. on writ of partition.
32. Final judgment.
33. Absent part owner may apply for a new
partition.
34. New partition, how to be made.
35. Case of a stranger claiming in severalty.
30, 37. claiming one of the shares, &c.
38, 30. of two respondents claiming the same
share.
40. Stranger claiming an additional share may
sue.
41. Case of a share left for part owner who is
dead.
42. of a party evicted of his share.
43. Mortgagee, itc, bound by partition.
44. Costs, by whom paid.
45. Wheu pctiiiouer may recover costs.
Section
4(i. Defendant, &c., entitled to betterments, &c.
47. Petitioner to pay for betterments before
judgment.
IN THE PKOUATE COURT.
Partition by probate court.
Commissioners a]>pointed, sworn, &c.
Partition oflands in diflcrent counties.
Proceedings in probate court.
Agents to act for absent heirs, &c.
Guardian for minor, &c.
Partition to be made of the whole, &c.
Share assigned to each owner, unless, &c.
When money may be awarded to equalize
partition.
Preference of males, &c.
Whole or part set off to one party, and
money paid.
Costs to be paid by all parties.
No partition in probate court when shares
are disputable.
Estate of deceased to^be severed.
Notice to be given to co-tenants.
If absent, proceedings to bo stayed.
On whom partition is binding.
Ou whom it is not conclusive.
ADVANCEMENTS.
GG. Questions of advancement, how determined.
GENERAL PROVISIONS.
07. Leases not to prevent or invalidate parti-
tions.
08. Party being guardian, &c., of co-tenant, not
to prevent, &c.
G9. Case of remainders, &c., to persons not in
being at time of application for partition.
70. Jurisdiction of the courts.
71. Jloney awarded to be paid before partition
established.
72. Improvements after partition, compensa-
tion for.
73. party Iiolding under partition entitled to.
74. Return may be set aside.
75. Returns of partitions, &c., to remain in
office of clerk, &c.
70. Registries heretofore made, to be valid.
DIVISION OP WATER RIGHTS.
77. Division of water rights.
78. of water of uatursU, stream.
Partition, how
made.
\i, S. 103, §1.
7 Mass. 475.
14 Mass. 434.
5 Met. 1.
10 Met. 419.
upon petition
by one or more.
R. S. 103, § 2.
1&12, 14, § 1.
1850, 190.
7 Mass. 503.
13 Met. 405.
IN COURTS OF COSniON LAW.
Section 1. Persons holding lands as joint tenants, coparceners, or
tenants in common, may be com]>clled to divide the same, either by
writ of partition at the common law or in the manner provided in this
cliapter.
13 Met. 402, 405. 0 Cush. 473* 12 Cush. 170. 3 Gray, 111.
Sect. 2. One or more of the persons so Iiolding lands may apply by
petition to the superior court, or supreme judicial court, lield within
or for the county in which tlie lands lie, for a partition of the same;
and said courts may cause partition to be made, ami the share or shares
of the petitioners to be set off and assigned; and the residue of the
CZA?. 1S6.J PARTITION OP LANDS — IN COMMON LAW COURTS. 699
premises shall remain for the person or persons entitled thereto, anJ if o Cash. 4ra.
more than one person is so entitled, subject to a future partition. 3 uray, in.
jSect. 8. Such petition, exce])t as jn-ovided in section sixty-seven, rctitioii by ono
niay be maintained by any person who has an estate in jwssession, but S'"i|,"pu"sJs''
not oy one who has only a remainder or reversion, i^ors, 410, § 1. 5 Met. 0. sion.
Sect. 4. No tenant for a term of years, unless at least twenty years ''".*' "'^'5 3-
thereof remain unexpired, sliall maintain such petition against a tenant for ycarMn
of the fi-eehold ; but when two or more persons hold jointly or in common "j"'^' 'm'l'i
as tenants for a term of years, either of them mav have his share set oif ij Mass. '155.'
and divided from the others. ' ^ ^'''^- "•
Sect. 5. Such partition between tenants for years shall continue in runiHon of the
force only so long as their estates endure, and shall not affect the prem- V.^^i"'"'.'- , >
ises when they revert to the resjjective landlords or reversioners. ""' '
Sect. 6. The petition shall set forth the rights and title.-;, so far as Substance of
known to the petitioner, of all jiersons interested in the premises who K.'"i|"i'o3°?6
would be bound by the partition, whether they have an estate of in-
heritance, for life or yeai-s, in possession, remainder, or reversion, and
whether vested or contingent ; and if the petitioner holds an estate for
life or year.s, the person entitled to the remainder or reversion shall bo
considered ono of the persons so interested, and entitled to notice.
Sect. 7. Every petition for ])artition filed originally either in the Petition to bo
supreme judicial court, or superior court, .shall be indorsed in the same k'^s'^'*,'^,' 5 ^3
manner as is prescribed with respect to original writs, and all regula- im5, «».'
tions concerning the indorsement of original writs shall ajijdy in like cu! 1 Ji, §f !;ii-|j;
m.anner to the indorsement of such petitions.
Sect. 8. The petition may be filed in vacation or term time in the FiUnv and no-
office of the clerk of the court in which the suit is brought ; and a sum- ^'^'^103''/?
mons to appear and answer thereto shall be signed by the clerk, and
served upon each of the parties named in the petition as interested in
the jn-emises, if found in this state, by delivering to him or leaving at
the place of his abode a copy of the petition and of the summons, at-
tested by the clerk or officer who serves the jirocess, fourteen days at
least before the sitting of the court to which he intends to present the
same.
Sect. 9. The petitioner may fourteen days at least before the sitting Xoti™, howto
of the court to which he intends to ]iresent his petition, without filing k! b\7o:j!'§ s.
the same in the clerk's office, cause the parties interested to be served
with a copy thereof attested by the officer, by delivering or leaving the
same in the manner aforesaid fourteen days at least before the sitting of
the court to which he intends to present it.
Sect. 10. If any of the persons so named are absent from the st.ate, to persons
or if there are any persons interested in the premises who would be kncnvn""^""
bound by the jiartition and whose names are unknown to the petitioner, K- s. 103, §9.
the court shall order notice to be given to all such persons by a pulilica-
tion of the petition or substance thereof, with the order of the court
thereon, in one or more newspapers, to be designated in the order, or by
delivering to any absent party who is known an attested copy of the
petition and order, or in such other manner as the court considers most
proper and effectual.
Sect. 11. The petition in the case last mentioned may be presented Proceedings in
to the court when sitting in any county, without being jireviously filed k"'s"kb'«io
in the clerk's office; but the cause shall be heard and detennincd by the •iiiass. m.
court when held within or for the county in which the lands lie, and the
summons or notice shall be made retnrnalile to that court.
Sect. 12. If any ])erson entitled to notice tails to appear, and if the Defects in ser
service of the summons, or other notice to him, appears to the court to pjjprt'"'"'^"'''
be in any way defective or insufficient, the court may order such further E. s.'ios, §11.
notice as it may deem proper.
Sect. 13. If in any stage of the proceedings it appears to the court Time aUowcd
700
PARTITION OF LANDS — IN COMMON LAW COURTS. [ChaP. 136.
that any person interested, whether named m the petition or not, is out
of the state, and has not had opjwrtnnity to appear and answer to the
suit, it shall be continued from term to term until lie has had time to
appear and answer thereto.
Sect. 14. When commenced in the sujicrior court, any respondent
may at the first term of liis appearance remove such petition to the
supreme judicial court, by making aiiida-i-it substantially as required for
the removal of actions at law.
Sect. 15. The court may assign a guardian for any infmt or insane
persoii interested in the premises, in the same manner as a guardian is
admitted for an infant defendant in actions at the common law.
Sect. 16. Any person interested in the premises may appear and
answer to the petition, and may plead or answer, eitlier separately or
jointly with any other respondents, any matter tending to show that the
petitioner ought not to have partition as prayed for, either in whole or
in part ; and the further pleadings shall be conducted as in actions at
the common law.
Sect. 17. If a person not named in the petition apjjcars and pleads
or answers, the petitioner may ro])\y that such j.ierson has no estate or
interest in tlie lands, and may pray judgment, if he shall be admitted
to object ; and the petitioner may in the same replication answer to
such plea any other matter as he might have done if he had not dis-
puted the respondent's right to a})]iear.
Sect. 18. If upon such replication it appears that the respondent
has no estate or interest in the lands, the matter of his plea or objection
to the partition shall be no further inquired of.
Costs of trial of Sect. 19. If Upon the trial of an issue it .appears that the petitioner
™ Tios §17. ^* entitled to have partition as prayed for, he shall recover his costs of
""■ ' "■' ■ such trial against the party who objected thereto, and shall have execu-
tion therefor. If such issue is found or decided against him, in whole
or in part, the adverse jiarty shall recover against him the costs of the
trial, and shall liave execution therefor; but judgment may notwith-
standing be rendered for the petitioner to have partition, and to have
assigned to him such part of the premises if any as he appears to be
entitled to.
Sect. 20. If it apjiears that the petitioner is entitled to have parti-
tion,- whether for the share or proiiortion claimed in his petition or any
less share, the court shall award the interlocutory judgment, that parti-
tion be made.
Sect. 21. When partition is to be made, the court shall apjioint
three or live disinterested persons as commissioners to make the jiar-
tition, and set off to the petitioner the share or shares belonging to
him, which shall be ex])ressed in the warrant.
Sect. 22. The commissioners, before proceeding to the execution
of their duties, shall be sworn faithfully and impartially to execute the
same, a certilica.to of which oath shall be made on the warrant by the
person who administers it.
Sect. 23. The commissioners shall give sufficient notice of the time
and place appointed for making the partition, to :dl persons interested
therein wlio are known and within the state, that they may be present
at the making tliereof
Sect. 24. All the commissioners shall meet for the performance of
any of their duties, but the acts of a majority shall be valid.
Sect. 25. If there are several petitioners, they may at their election
have their shares set off together or in severalty.
Sect. 2G. When the premises consist of a mill or other tenement
wliich cannot be divided v/ithout damage to the owners, or when any
for absent par-
ties.
K. S. 103, § 12.
Removal of pe-
titions to S.J. C.
isli, 14, § 1.
1S3J, 190.
rriiardian for in-
ia it, &c.
i;.S. 103, §1-3.
J'loadings.
i;. S. 103, § H.
ISoi, 312.
T'c;ilication by
j>,-iitioiier, &e.
It. .S. 103, § 15.
r, X. H. K. 210.
•.; Mass. 473.
!) Pick. 00.
rroccedings
t!r.>reon.
i;. S. 103, § 10,
I'ick. 240.
10 I'iek. 539.
Interlocutory
'udg;ment.
'ii. a. 103, § IS.
I Greenl. 300.
5 Greenl. 458.
3 Mass. 299.
II Cush. 109.
Commissioners
lO make parti-
tion.
It. S. 103,5 20.
U Cusli. lUS.
to be sworn.
It. S. 103,522.
.3 Mass. 299.
to GTive notice
to iill parties.
R. .S. 103, § 23.
At!ts of miyori-
tv valid.
I!. S. 103, §24.
4 N. H. U. 33.
If several peti-
tioners.
K. S. 103, § 21.
Vv'lien money
may be awarded . -, ... ■- , i • ^ ' 1 ■> \ '
to equalize par- specihc ])art of the estate IS ot greater value than either party s snare
''''"""• and cannot be divided without damage to the ownei-s, the whole estate,
Chap. 136.] PARTITIO^f of lands — in common law courts. 701
or the ii:',rt thereof so incapable of division, may be set off to any one of R. s. io.i, §§25,
the j)arties who will accept it, he paying to any one or more of the 5'x. u ^ ^^
others such sums of money as the commissioners award to make the ''*,';'';';-?,?■.
partition just and equal; or the commissioners may assign the exclu-
sive occujiancy and enjoyment of the ^yhole, or the part, to each of the
parties alternately for certain sjiecified times, in proportion to tlieir-
respective interests.
Sect. 27. When the whole or any specific part of the premises is Liability of oc-
thus assigned, the person entitled for the time being to the exclusive jupauttoco-
1 11 1 1- 1 1 1 ■ /- • ? 1 teuiuits m such
occupancy sliall be liable to his co-tenants tor any injury to the prem- cnso.
ise.s occasioned by his misconduct, as a tenant for years under a com- ftsf's^'^''^'
mori lease without express covenants would be liable to his landlord ;
and the other tenants in common may have their remedy therefor
against him by an action of tort, jointly or severally, at their election.
Sect. 28. While an estate is in the exclusi\e occupancy of a co- ijpmoiiy of co-
tenant under such an assignment, lie shall be entitled to the same limits for trcs-
, . , ^ ^ ' .... -. pass by stran-
remedy against whoever trespasses upon or otherwise injures the prem- pr.
ises, as if he held the same under a lease for the term lor which they i'- S- 10.3, § as.
were so assigned to him ; and he and all the other tenants in common
shall be entitled to recover such other an<l furl her damages as they
have sustained by the same tres]>ass or injury, in like manner as if the
Ijrcmises had been leased bj- them. Joint damages recovered by such
tenants in common by force of this or the preceding section, shall be
apportioned and divided among them according to their res23ective
rights, by the court in which the judgment is recovered.
Sect. 29. The commissioners shall make a return of their doings Return of eom-
uuder their hands, together with their warrant. If their report "is ,™(P,',','°uT^' ''°''
confinned, judgment shall be rendered that the partition be firm and k. §• u«,'§su.
effectual forever. ^''''^'^■
Sect. 30. Any party aggrieved by any judgment rendered in the Appeal on piti
superior court under section twenty, or upon a report of commissioners {Jon '°'^'"^"
under this chapter, may a])j)eal therefrom in any matter of law ap- n- S- 103, §§ 19, •
parent upon the record, to the supreme judicial court; but upon an imo, sr, §§4, 5.
appeal from the judgment ujion the report of commissioners, the inter- ILy^'mu"'""
locutory judgment awarding that partition be made shall not be drawn '
in question.
Sect. 31. The regulations herein prescribed as to appeals from the onwritofpiu--
first and second judgment on a ]]etltionfor partition, shall be enforced K.'g^'joa, §32.
in like manner, in a writ of partition.
Sect. 32. The final judgment shall, except as hereinafter provided, FinaijudgTOcnt.
be conclusive as to the riglits of proj^erty .and possession of parties and J'jia'gs"'*;!;''''
privies to the judgment, including all persons who might by law have I'i Jfass. 213.
ap])eared and answered. sjict. 310. 's Mot. 5119. -'-I'lck. sic.
Sect. 33. If any person who was a part owner with the petitioner, Absent part
and for whom a share is left u]5on the partition, is out of the state p}" "ora'ucw''
when the summons or notice to him is served, and does not return in partition,
time to appe.ar and answer, he may, within three years after the final 33. •^"■''^s '
judgment, apply to the same court for a new partition ; and if, upon a
hearing of all parties interested, it ap])ears that the share left for the
applicant was less than he was entitlecl to, or that the pait left for him
was not at the time equal in value to his share of the jiremises, the
court may order a new jiartition, which shall be made in the manner
before provided.
Sect. 34. In such new partition the commissioners shall not be re- New partition,
quired to make a new division of the whole premises, but may take k" s.* 103' § m'.*^'
from any one share or shares and add to any other or others so much as
is necessary to make the partition just and equal, estimating the whole
as in the state in which it was when first divided; or if an equal parti-
tion cannot be made without inconvenience to the owners, the com-
59*
ro2
PARTITION OF LANDS IN COMMON LAW COURTS. FChaP. 13G.
Casoofstrang^or
claiming iu sev-
eralty.
u. s. 103, § as.
2 Masa. 4IW.
5 Slot. :!tO.
S Met. j'JU.
of straiif^er
claimin<^ one of
the shares, »tc.
R. S. 103, § 3D.
8 Met. 5D9.
same subject.
U. S. 103, §40.
of two re-
spomients
claimin;^ the
same share.
U.S. 103, §41.
same subject.
U. S. 103, § 42.
of stranj;fcr
clai'.nin^ an ad-
ditional share.
1{. .S. 103, §§43,
44.
22 Pick. 310.
of a Rhare left
for part owner,
who is dead.
It. S. 103, §43.
'> ■ a party
cvi .ed of liis
sli ii-e.
It. S. 101, § 40.
MorfG;a?ee, &<•.,
boui 1 by paiti-
tion.
U. S. 103, § 4r.
inis.sionoi's may aw:n'<l money to be paul by one party to another as
before provided, to equalize the shares.
Sect. .35. If any i)er.son who lias not appeared and answered to the
petition claims to hold in severalty any jiart of the premises, he shaE
not be conchided by the judgment, but may bring his action for the
land claimed by him, against any or all of the petitioners or respond-
ents, or of the ]>ersons holding under them, within the time in which
he might have brought it if no such judgment for partition had been
rendered.
Sect. 36. When a person who has not appeared and answered
claims the share assigned to or left for any of the suppose! part own-
ers in the judgment tor partition, he shall be concluded by the judg-
ment, so far as it respects tlie ]iartition and the assignment of the
shares, in like manner as if he had been a party to that suit, but may
bring his action for the share claimeil by Jiim, against the person to
whom it was assigned or for whom it was left.
Sect. .37. Tlie action shall be brought against the tenanv- \ii posserj-
sion as if the demandant had originally claimed the speciSc piece
demanded instead of an undivided ]>art of the land ; and it may be
brought within the time in which it might have been brought f no such
judgment for partition had been rendered.
Sect. 38. If two or more persons appear as respondents, claiming
the same share of the premises to be divided, it shall not h^ necessary
to decide on their respective claims, except for the puqiiose of deter-
mining which shall be admitted to appear in the suit ; and if partition is
made, the share so claimed shall be left for whichever of the jiarties
proves to be entitled to it, in a suit to be thereafter brought between
themselves.
Sect. 39. If in such case it is decided in the suit for p.'irtition that
either of the respondents is not entitled to the share that lie claims, he
shall be concluded by the judgment, so fir as it respects the jiartition
and assignment of tlie shares ; but may bring an action against the
other claimant in the manner provided in the three preceiliiig sections.
Sect. 40. If any person who has not a]ipeared and answered claims
part of the premises as a jiart owner witli any of those who were jjarties
to the suit, and if the part or share so claimed was not known, or not
allowed and left for him, in the process for partition, he shall be con-
cluded by the judgment, so fir as it respects the partition, but may
bring an action for the sliare or proportion claimed by him, against each
of the persons holding any part of the premises under the jn<lgment for
partition, and if he prevails, shall recover against each the same pro-
portion or share of the part held by him, that he was entitled to claim
out of the whole ]iremiscs before the ])artition.
Sect. 41. If after partition it appears that any person for whom a
share was left or assigned, had died before the partition, his heir or dev-
isee shall not, by reason of his having been a party to the suit, be barred
from claiming tlie share that belonged to him ; but shall have the same
rights and remedies as if he had not been such jiarty, and had not had
notice of the ]iendeiicy thereof.
Sect. 42. If a ]ierson to or for whom any share has been so assigned
or left, is evicted by a person who at the time of the partition had a
title older and better than the title of those who were parties to the
suit, the person so evicted may have a new partition of the residue, as
if partition had not been made.
Sect. 43. A person having a mortgage, attachment, or other lien,
on the share of a part owner, shall be concluded by the judgment, so
far as it respects the jiartition and the assignment of the shares ; but his
lien shall remain in full force ujion the iiart assigned to or left for such
part owner.
Chap, 136.] partition of lands — in probate courts. 703
Sect. 44. The expenses .and ch.ii-ges of the commissioners shall bo Costs, by whom
ascert.iineil .nnd allowed by the court; the other costs shall be taxed in k^s. 103 §49
the usual manner; and the whole shall be paid by the petitioner, except
the costs of a trial of issues. When tlicre is more than one ])etitioner
the whole costs and charges payable by them shall be paid in propor-
tion to the shares or interests they respectively hold in the premises.
Sect. 45. When a petition is opposed by any respondent therein when pctmon-
named, and it appears that the petitioner is entitled to have partition <■■• may recover
as prayed for, he shall reco\er costs against the ]iarty opposing, fi-om isisr, 149.
and .after the filing of the plea or answer, to be taxed as in other civil
cases.
Sect. 46. If the plaintiff or petitioner recovere judgment in any writ Defendant, &c.,
or other jirocess of partition in which it appears by the pleadings that t"rmen'ts".tc*'
the defendant or respondent denies the right and title of the plaintifl'or i^ao, 2r8,'§ 1."
petitioner to any part of the premises, and claims the same as his own Isoish.^ilb.
estate in fee, and it is proved that the defendant or respondent held the
same under a title which he believed to be good, lie shall be entitled to
compensation for the value of any buildings or iinjirovements on the
premises made or erected by himself or any other person under whom
he claims ; such value to be ascertained as provided for tenants in re.al
actions, by chapter one hundred and thirty-four; and in like manner he
shall be liable for the plaintiff or petitioner's share of the rents, profits,
and other damages, mentioned in said chapter.
Sect. 47. If any sum remains due to the defendant or respondent Petitioner to
for improvements, after deducting the rents, profits, or otlicr damages, jJfe^[s\,I?fOTe'
for which he is found chargeable, the plaintiff or petitioner shall not judgment.
have judgment for partition until he pays the s.ame to the defendant or '*""'-'*"' §2.
respondent, or for his use to the clerk of the court ; and he shall not be
entitled to any rents or profits which may accrue after verdict, and
before he makes such payment.
IX THE PEOBATE COTTET.
Sect. 48. The probate court in which the estate of any deceased Partition by
person is settled or in a course of settlement, may make partition of all i/^sf'taM'so!
his real estate hing within the state, among his heirs or devisees, and all is Mass. 413.
persons holding under them by convoj'ance or otherwise, in the manner ^i pick.ioi.
and under the restrictions hereinafter provided.
Sect. 49. The partition shall be made by three or five disinterested Commissioners
persons to bo appointed as commissioners for that ]3urpose by tlie court. s'TO"-'n,*&c'.
They shall before proceeding to the execution of their duties be sworn e. s. 103, §51
fliithfully and imp.artially to execute the same, and shall proceed therein
in the manner before prescribed with regard to commissioners ajipointed
by the cotirts of law, except as hercinnfVer otherwise provided.
Sect. 50. If an estate to be divided lies in different counties, the Partition of
judge may if he thinks fit issue a separate wan-ant and appoint different J.^'eo'imMel'!'^"
commissioners for each county; and the partition shall be made of the e. s. 103, §52.
estate in each county in like manner as if there were no other estate.
Sect. 51. Such partition may be ordered on the petition of any of Proceeding-s in
said parties interested, after due notice to all the others to appear and j'™s.''iw,'§'53!
show cause against it. The notice shall be served fourteen days at least " Pick. 209.
before the time appointed for the hearing, on the parties personally if
they can be found within the state, and if not, it sliall be published once
in each week for three weeks at least before such hearing, in such news-
papers as the court shall order.
Sect. 52. Afler the commissioners are appointed, some disinterested Ag-ents to act
person shall be appointed agent by the court for any heir at law or J^ absent heirs,
devisee absent from the state ; and he shall act for such absent heir or 18-39, 104, § 1.
devisee in all things relating to the partition.
704
PARTITION OF LANDS — IN PROBATE COURTS. [ChAP. 136.
Guardian for
minor, A:e.
K. S. 103, § M.
Partition to be
made of the
whole, &c.
K. S. 103, § 55.
Share assigned
to each owner,
unless, &c.
U. S. 103, § 50.
WTien money
may be aw.ird-
ed to equalize
partition.
R. S. 103, § 57.
7 Pick. 209.
Preference of
males, &c.
K. S. 103, § 58.
Whole or p.irt
set oil' to one
party, and
money paid,
is^is, is.
8 Met. 305.
Costs to he
p.aid by all par-
ties.
K. S. 103, § 60.
No partition in
probate court
when shares are
disputable.
K. S. 103, § 01.
Estate of de-
ceased to be sev-
ered.
E. S. 103, § C4.
Notice to be
given to co-ten-
ants.
E. S. 103, § 05.
If .ibsent, pro-
ccedinjgs to be
stayctL
K. S. 103, § GO.
Sect. 53. If it nppears that any infont or insane person is interested
in the premises, and lias no guardian ■\vitliin tlie state, the court sh.all
assign him a guardian I'or the suit, to appear lor hiui and defend his
interests therein.
Sect. 54. The partition when made on the application of an heir,
shall be made of all the estate that descended from the ancestor, and
which any party interested, whether the applicant or others, requires to
have included in the partition ; and when made on the application of a
devisee, it shall be made of all the estate held by the a])])licant jointly
or in common with others holding under the testator, which he or any
other devisee requires to have included. The same rule shall apply
when tlie application is made by any jaerson holding under an heir or
devisee.
Sect. 55. Upon every such partition the court shall not only assign
and set oft' to the ap])licant his share in the premises, but shall cause the
residue to be divided among the parties interested, and the share of each
one to be assigned to him, unless two or more of the parties consent to
hold .their shares together and undivided.
Sect. 56. When a messuage, piece of land, or other part of the
premises, is of greater value than either party's share, and cannot be
divided without great inconvenience to the o^\'ners, it may be set oft' to
any one of the parties wlio will accept it, he paying to any one or more
of the others such sums of money as the commissioners award to make
the partition just and equal.
Sect. 57. In the assignment of part of the premises under the pre-
ceding section, males shall be preferred to females, and among the
children of the deceased, elder shall be preferred to younger sons.
Sect. 58. When such real estate cannot be divided without damage
to the owners, the whole or any part thereof may be set off to one or
more of the jiarties among whom partition is ordered to be made, he or
they jjaying to the other parties such sums of money as the commis-
sioners shall award.
Sect. 59. The expenses and charges incun-ed shall be ascertained
and allowed by the court, and paid by all the parties interested in the
partition in proportion to their resjiective shares or interests in the
premises. If any one neglects to pay bis part, an execution therefor may
be issued against him.
Sect. 60. No partition shall be made by the probate court when the
shares or proportions of the resjiective parties are in disjnite between
them, or ajipear to the judge to be uncertain, depending upon the con-
struction or effect of any devise or other conveyance, or upon other
questions that he deems proper for the consideration of a jury and a
court of common law.
Sect. 61. When any part of the real estate of the deceased lies in
common and undivided with that of another person, the probate coiu't
may cause it to be divided and set oft' from tlie ]iart held by such co-
tenant, before making partition among the heirs or others claiming
under the deceased.
Sect. 62. The court in such case shall order a notice of the intended
partition to be given to the co-tenant, containing a description of the
premises to be divided, with a statement of the share or jiropoition
claimed as belonging to the estate of the deceased, and of the time and
place appointed for hearing the case. It shall be served on the co-
tenant by delivering to him an attested copy, or by leaving such copy
at the place of his abode in tliis state, fourteen days at least before the
time appointed for the hearing.
Sect. 63. If it apjiears in any stage of the proceedings that any per-
son interested in the jn-emiscs, other than the heirs and devisees of the
deceased and those claiming under them, was absent from the state
Chap. 136.] partition of laxds — advancements, general provisions. 705
when tlic notice was scrvecl, .and lins not returned, the jii-oljnte court
sh:ill either dismiss the ajiplieation for partition, or stay all further pro-
ceedings until such absent jtarty ap])ears and answers thereto, or sig-
nifies in writing to the court his coilseut that jiartition be made as
proposed.
Sect. 64. The p.artition when fin.ally confirmed and established shall On whom parti-
be conclusive on all the heirs and devisees of the deceased, and all i{?s?^io3r^f"
persons claiming under them ; on all other persons interested in the
premises who ajipeared and answered in the case, or assented to the
jiroposed partition as before provided, and on every person so interested,
on whom notice was served by delivering to liim a cojiy thereof, or
by leaving it at the place of his abode at a time when he was within
the state.
Sect. G5. Such partition shall not be conclusive upon any persons on\fiiomiti»
other than those mentioned in the preceding section. All other persons ™s™i"3,"/o5f'
may ]>ursue their legal remedies for recovering the prenuscs, or any
part thereof^ and also for obtaining partition of the same, in like man-
ner as if the proceedings in the probate court had not been had.
ADVANCEMENTS.
Sect. G6. Questions concerning advancements of either party may Questions of ad-
be heard and determined ujjon a petition for j)artition, or the court detmSued.'"''^''
may suspend proceedings until that question is decided in the probate k.s. 103, §§C2,
court in which the estate of the deceased is settled ; whicli court may loMass. 200.
hear and determine all such questions, s.aving an appeal as in other ^'^'^ ch. 91, § 6.
cases to the supreme judicial court. The final decree or sentence there-
on shall be binding on all parties interested, whether the partition is
made by the probate court or in the courts of common law.
general ntOTISIONS.
Sect. 67. Partitions may be made under this cha]itcr notwithstand- Leases not to
ing the existence of any lease of the whole or a part of the estate to be y^udate paini-
divided ; and no partition heretofore made by a court of competent !'™''\,„ ,
jurisdiction, shall be rendered invalid by reason of the existence of sucli g Cu'sh. 4r2.'
lease : provided, that such partition shall not prejudice the right of a
lessee.
Sect. 68. Such partitions may be made notwithstanding any of tlie Party bein^
tenants in common may be, alone or jointly with others, trustee, attor- of''co-tcnant,*not
ney, or guardian, of any other tenant; and no partitions of real estate '."-'.fTin^s''*'''
heretofore made by a court of competent jurisdiction, shall be rendered 9 Cu'sh. -105?'
invalid by reason that such trustee, attorney, or guardian, was a party.
Sect. G9. The jiro visions of this chapter shall ajijily to cases in which Case of remain-
remainders or estates are de\-ised or limited to, or in trust for, persons poTsons'^not'iu
not in being at the time of .ap])lication for partition, upon notice to the ''™&-
persons who may be jsarents of such persons, in the manner herein |:>re- ^53] 257!
scribed, setting forth the origin and nature of the remainder or interest ^^8, 137.
so devised or limited. The court in such case shall appoint a suitable
and com])etent ]>erson to ajipear and act as the next friend of such per-
sons, in all proceedings touching the partition; the cost of whose appear-
ance and services, inclmling compensation of counsel, to be determined
by the court, shidi be ])aid by the persons applying for partition, and
execution may be issued therefor in the name of the person .appointed.
The jiartition made in such case shall be conclusive upon all persons to
whom such estate or remainder is devised or limited, in the same man-
ner as if they had been in being and appeared and answered in the case,
or assented to the partition.
Sect. 70. When proceedings for obtaining partition are lawfully Jurisdietion of
706
PARTITION OP LANDS DIVISION OF WATER RIGHTS. [ChAP. 136.
K. S. 103, §r3.
lli MaSB. 107.
Money awarflerl
to be paid before
partition estab-
lished.
1850, 230.
7 Pick. 208.
3 Gray, 530.
Compeusation
for improve-
ments alter par-
tition.
E. S. 103, §§ 37,
70.
party lioldin^
under partition
entitled to.
E. S. 103, §71.
Eeturn may be
set aside.
K. S. 103, §§ 30,
5'J.
6 N. H. R. 329.
Returns of par-
titions, &c., to
remain in ofTice
of clerk, &c.
lt>47, 170, § 1.
Ecgfistrics here-
tofore made to
be valid.
1847, 170, § 2.
commenced in cither of the courts mentioned in this clinptcr, th.^t court
shall retain jurisdiction of the case, saving the right of a])peal in all
cases where an appeal is allowed by law-.
Sect. 71. Where sums of money are awarded by the commissioners
to make the partition just and equal, the partition shall not be established
by the court until all such sums are paid to the parties entitled thereto,
or secured to their satisfaction, or that of the court before which the
matter is pending.
Sect. I'l. If after a fir.st partition under this chapter any improve-
ments have been made on any |iart of the premises which by the new
p.artition is taken from the share of the ]'arty who made the improve-
ments, he .shall be entitled to compensation therefor, to be estimated
and awarded by the commissioners, and jiaid by the party to whom such
part of the jiremises is assigned on the new jiartition, and the court may
issue an execution therefor in the common form.
Sect. 73. Every person hoMing lauds under a partition made under
this chapter, shall in case of an eviction be entitled to compensation for
improvements made thereon, in the manner prescribed in chapter one
hundred and thirty-four.
Sect. 74. In all cases of partition the court may for any sufficient
reason set aside the return and commit the case anew to the same or to
other commissioners, whcreujjon the same proceedings shall be had as
are before directed.
Sect. 75. The return of the commissioners, when accepted, shall
remain in the office of the clerk of the courts, or in the registry of j)ro-
bate, as the case may be ; and a (:o\>y thereof, certified by the clerk, or
register, shall be recorded in the registry of deeds for the county or dis-
trict where the land lies.
Sect. 76. All records in the registry of deeds of partitions hereto-
fore made, if no other objection exists thereto, shall be deemed v.alid
and sufficient whether recorded from the original return or from a copy
thereof certified by the clerk or register of the court in which the par-
tition was made.
Division of
water rij^hts.
1854, 74.
4 Gray, 4SG.
of water of
natural stream.
1859, 12S.
DIVISION OF WATER EIGUTS.
Sect. 77. All persons who are interested as joint tenants, ten.ints in
common, or otherwise, in any mill privilege, w.ater right, or other incor-
poreal hereditament, may be compelled to divide the same, either by suit
in equity, in the supreme judicial court, or in the manner herein before
provided for the division of land. In the latter case, the commissioners
appointed to make partition shall set forth in their return the best
method of setting ofli" to the several parties their respective shares or
interests, and thereupon the court may require the parties interested to
perform such acts as justice and equity may require, and may make all
such orders and decrees in the premises, according to the course of pro-
ceedings in equity, as may be necessary to do justice between the
parties.
Sect. 78. Under the provisions of the preceding section, partition
may bo made of the water of a natural stream not navigable, the banks
of which are owned by different riparian proprietors.
Chap. 137.]
FORCIBLE ENTRY AND DETAINER.
707
CHAPTER 137
OF FORCIBLE ENTRY AND DETAINER.
Sectkw
1. Forcible entry forbidden.
2. Person ousted, or unlawfully held out, may
be restored.
3. On termination of lease by reason of non-
payment of rent, liSBOr, &c., restored. Pro-
viso.
4. Suit to be commenced within three yeara.
T). Form of writ.
0. Proccedin^rs in the suit.
I Sectioh
7. Judgment, when for plointilT.
8. wlien for defendant.
y. Upon appeal or removal, defendant to reo
ognize, &c. Kemedy upon the recogni-
zance.
10. Liability of defendant for frivolous plea,
&c.
11. Tite promi.ses or further damages may be
afterwr»rda recovered.
Section' 1. No person shnll make nn entry into Linds or tenements, Forciijic entry
except in cases where Iiis entry is nllowed by law; and in such cases he i" s.''i'lj4°'5 1.
shall not enter with force, but in a peaceable manner. 5 Cush. 214. scush..'53. 7 Met. 131.
Sect. 2. When a forcible entry is made, or when a peaceable entry Person ousted,
is made and the possession unlawfully held by force, or when the lessee hcid'o?!?, may
of land or tenements, or a person holding under such lessee, holds jjos- ''|' 'J".'.'?!''^?;,
session inthout right after tlie determination of the lease by its own lo'Jiass.W.*
limitation, or by notice to quit or otherwise, the person entitled to the | jlet'al'
premises may be restored to the possession in the manner hereinafter 3 Met. n.io.
provided. lu* ji^i ' .jijo, 208.
13 Met. 27.'!. 5rush..5«. 121,400. 1 firav, .'571. Pee Ch. R7, § 8. 11 Met. 00.
ICush. 4S7. 8 Cush. 20, .33. II Cush. 22?. 4 Gray, 432. Ch. 90, § 31. 12 Met. 300.
Sect. 3. When a lease in writing is determined in the manner pro- on termination
vided in section thirty of chapter ninety, tlie lessor and his assigns may "„//o7non-'pay-
be restored to the possession of the premises in like manner: provided, mentofrent,'
that when a suit is brought under this chapter to recover the possession stored, &c'.' "^
by reason of sucli termination, if the tenant four days at least before I'^^'^o-
the return day of the writ pays or tenders to the landlord or his attor- is-,7;35!
ney the rent due, with interest thereon and all costs of suit, the lease ^ Gray, 227.
shall be in force. Nothing contained in this section or said section
[thirty] \^ti':e)iti/-eiffht~\ shall .affect any other rights or remedies on the
jjart of the lessor provided in the lease.
Sect. 4. No restitution shall be made under the ]irovisions of this Suit to be rom-
chapter of any lands or tenements of which the defendant, or his ances- nuvryears!''"
tors, or those under whom he holds the premises, have been in tlie quiet j^- S- loi. § 3.
possession for three years next before the commencement of the suit, amend. § 14.
unless his estate therein is ended.
Sect. 5. The person entitled to the possession of the premises may Form of writ,
take from a justice of the peace, or police court, a writ in the form used {s-h ; ost'li^' ''*'
for an original summons in common civil actions before such justices or 2 Jiet. 20.
courts, in which the defendant shall be summoned to answer to the io^jiet. 223,''23o,
comiilaiiit of the plaintiff, for that the defendant is in possession of the :;]'';,-"•!?•,,„
11 ' • • 1 •, ■ 1 1 • 1 , 1 1 1 1 13 Met. 180.
lands or tenements m question, describing them, which he holds unlaw- icush. 487.
fully and against the right of the plaintiff, as it is said; and no other ^ cu'sil' fi'l'
declaration shall be recjuired. 8 Cush. 32, 121,
Sect. 0. Tlie writ shall be served seven davs at least before the re- J ' ,.
turn day, and the suit shall be conducted like other civil actions before the suit. "
such justices or courts. See^'i'^i's!^!.
Sect. 7. If it appears by default or on trial that the ]ilaintiff is en- Judgment,
titled to the possession of the premises, he shall have judgment and J|'J™ !<"■ p'"'°-
execution for the possession and for his costs. k. s. 104, §6.
Sect. 8. If the plaintiff becomes nonsuit, or fails to prove his right when for de-
to the possession, the defendant shall have judgment and execution for ii^s'loi, §?.
his costs. 10 Met. 294. ■
(08
WASTE AND TRESPASS ON EEAL ESTATE. [ChAP. 138.
Upon appeal or
removal, de-
fendant to roc-
o^ize, ttc.
Kemedy upon
the recogni-
zance.
K. S. lOi, § 10.
1818, HI.
1862, .■?12.
10 Met. 2.
2 Gray, •■311,311.
Liability of de-
fendant for friv-
olous plea, &c.
R. S. ICH, § 11.
1852, 312.
The pi'eniises
or further dam-
ages may be af-
terwards recov-
ered.
K. S. lOi, § 13.
Sect. 9. "Wlien jiiclgment is rendered for the plaintiff for restitution,
and the defendant appeals therefrom, or when the del'end.-uit removes
the case as provided in section thirteen of chapter one hundred and
twenty, he shall, liefore such appeal or removal is allowed, recognize to the
])laintiff, with sufficient surety or sureties, to enter the action, to pay all rent
then due, all intervening rent, and all damages and loss which the plain-
tiff may sustain by reason of the withholding of the possession of the
demanded premises, and by reason of any injury done thereto during
such withholding, together with all costs, until the restitution of the
possession thereof to the plaintiff, in case the judgment from which the
apjjeal is made is affirmed. Upon final judgment for the plaintiff, all
sums of money then due to him may be recovered by writ of scire
facias or action of contract upon the recognizance.
Sect. 10. If the case is transferred at the request of the defendant
xilion any ])lea or suggestion by him that brings in question the title to
the freejiold, and if it aj)pears to the court in which the action is deter-
mined, that the defendant originally entered on the premises under a lease
from the plaintiff, or from any person under whom the plaintiff claims,
or that he held them under any such lease, and that his said plea or
suggestion was frivolous and intended for delay, the court shall cause a
certificate thereof to be entered on the record, and the defendant shall
thereupon be liable to pay double the yearly value of the demised
premises from the time of the notice to quit the same, wliich may be
recovered by writ of scire facias or action of contract on the recog-
nizance.
Sect. 11. The judgment in such action shall not be a bar to any ac-
tion thereafter to be brought by either jiarty to recover the premises in
question, or damages for any trespass thereon ; but the sum recovered
for rent according to the provisions of the two preceding sections shall
be allowed and deducted in any assessment of damages in such subse-
quent action by the original plaintiff
CHAPTER 138.
OF WASTE AND TRESPASS ON REAL ESTATE.
Section
1. Action of waste may be brought by a rever-
sioner.
2. by an lieir.
.■!. Mode of trial.
4. Action of tort for waste.
5. by whoni broiii^lit.
C. may be prosecuted or brought against ex-
ecutors, &c.
~. Penalty for waste on lands held in joint
tenancy, &c. ,
8. Damages, liow recovered and appropriated.
Section
y. Penalty for waste after act ion for possession.
10. Peualty for wilful trespass on lanrls.
11. Tender allowed in case of involuntary tres-
pass.
12. Or money may be brought into court.
13. lujunctiou to stay waste.
14. Iiow dissolved.
Injunction for waste in case of land at-
taclied, or action for possession, &c.
Api)licant to give bond.
Furtiier proceedings iu sucll case.
15
Action of waste
may be brought
by reversioner.
R. S. 105, § 1.
5 Pick. I'.l2.
7 Pick. 152.
8 Pick. 309.
by an heir.
R. S. 105, §2.
Mode of trial.
K. S. 105, § 3.
Section- 1. If a tenant in dower, by the curtesy, or for life or years,
commits or suffers waste on the premises, the person having the next
immediate estate of inheritance may liavc an action of waste against
such tenant, wherein he shall recover the place wasted and the amount
of the damage.
Sect. '1. An heir may bring an action for waste done in the time of
his ancestor.
Sect. 3. If an issue of fact is joined in the cause, it shall be tried
ClIAP. 138.] WASTE AND TRESPASS ON REAL ESTATE. 709
by a jury in the Tisual manuGr, either with or witlinnt a view of the
jireuiises, as tlio court shall order; and the jury that inquire of the waste
shall assess the damages.
Sect. 4. A person entitled to such action of waste may instead Action of tort
thereof bring an action of tort in the nature of waste, in which he shall l"'." 'ujf,'§4.
recover such damages as he has suflered by reason of the waste. i>j-2,:m.'
Sect. 5. Such action of tort may be maintained by one who has the iiy whom
remainder or reversion in fee simple or fee tail, after an intervening i"s'.^'!(t5, §5.
estate for life, and also by one who has a remainder or revci-sion for life .'■"jV''.,^'?-
or years only, and each shall recover such damages as he has suftered ' "' "
by the waste.
Sect. G. An action of tort for waste, if commenced in the lifetime maybopros-
of the tenant, niav be prosecuted affiiinst his executors or administra- f'^t"' or .
tors; and such action maybe originally brought against the executors px«-.iiors, &c.
or administrators of the tenant, for waste committed or suifered in his "o^Jli"'^'''
lifetime.
Sect. 7. If a joint tenant, coparcener, or tenant in common, of un- penalty for
divided lands, cuts down, destroys, or carries away, any trees, timber, '■j™J*S'^°."?™'is
wood, or underwood, standing or lying on such lands, or digs up or car- tenancy, &c.
ries away any stone, ore, or other valuable thing, found there, or com- :15i' iMck'^loo'''
mits any other strip or waste, without tirst giving thirty days' notice in 1 Met. sjoii.
writing under his hand to all the other persons interested therein, or
to their respective agents or attorneys, of his intention to enter upon
and improve the land ; or if he docs any of said acts during the pen-
dency of a petition or other suit for the jiartition of the premises ; he
shall forfeit three times the amount of the damages that shall be as-
sessed therefor, to be recovered and appropriated as provided in the
following section.
Sect. 8. Such damages maybe recovered in an action of tort by any Damages, how
one or more of tl)e other co-tenants, without namino- an v one excevit the I'coveieii ami
plamtiii, and tlie damages shall be appropriated, one-hnli to.tlio persons 1;. s. luj, §8.
who shall sue, and the other half to the same persons with all the other '.^'pi^k^ioe.
co-tenants except the defendant, to be divided among them in proper- 0 Gray, 339.
tion to their respective interests in the land.
Sect. 9. If, during the pendency of an action for the recovery of renaity for
lands, the tenant or person in jiossession, with knowledge of such jien- tlou'for'rKJsses-
dency, commits strip or waste, the demandant, if he recovers judgment, "'"",•
may afterwards recover, in an action of tort, three times the amount of Isha.'si!.?'^''"
the damages that shall be assessed therefor. 2c''^V^4*'
Sect. 10. If any person without license wilfully cuts down, canles ivnaity for wii-
away, girdles, or otherwise destroys, any trees, timber, wood, or under- ["' tifspass ou
wood, on the land of another, the owner may recover, in an action of tort, li. s.'ios, §§ 10,
three times the amount of the damages that shall be assessed therefor, j'j., ^,,-,
unless it appears that the defendant had good reason to believe that
the land on wliich the tresjiass was committed was his own, or that he
was otherwise lawfully authorized to do the acts complained of, in
which case he shall be liable only for single damages.
Sect. 11. When a trespass on lands has been casual and involuntary. Tender allowed
the trespasser may tender suflicient amends before an action is lirought; l",tary t/es-™^"
.and if afterwards sued, he may in his answer disclaim all title to the pass,
land, allege that the trespass was casual and involuntary, and set forth is5f,'.3'ilf.' ^ ^^'
the tender, bringing the money into court. If upon the trial the allega-
tions appear to be true, and the' damages assessed do not exceed the
amount so tendered, the defendant shall recover his costs.
Sect. 12. If a tender was not made before the commencement of the Or money may
action, the defendant may disclaim title, allege that the trespass was J^uiJj.™""''* ''^'°
casual and involuntary, and bring into court suiScient amends, with the i:. .s.'ior,, §13.
costs of suit up to that thne. If the plaintiff does not accept the same '^^-'''i--
in satisfliction, an<l if upon trial the allegations appear to be true, and
60
710
ACTIONS FOR PRIVATE NUISANCES. [ChAP. 139.
Injunction to
stay waste.
E. S. 105, § 15.
how dis-
Bolved.
K. S. 105, § 10.
Injunction for
waste in case of
land attached,
or action for
possession, Sec.
E. S. 105, § 17.
1862, 312, § 51.
1850, 2?8.
Applicant to
give bond.
1850, 2;8.
Further pro-
ceeding's in
such case.
K. S. 105, § IS.
the damages assessed do not exceed the amouiit so brought into court,
the defendant shall recover his costs.
Sect. 13. The supreme judicial court, or one of the justices thereof,
may either in term time or vacation, after tlie filing of the lull or other
commencement of a suit concerning waste, issue a writ of injunction to
stay waste, and issue such other writs and processes, and make such
orders and decrees, according to the course of proceedings in ec^uity, as
justice and equity may require.
Sect. 14. Every such injunction to stay waste may be dissolved,
cither in term time or vacation, by the supreme judicial court, or any
one of the justices thereof.
Sect. 1.5. When a person whose real estate is attached commits
waste thereon, or threatens or makes prej)arations so to do, or when a
real action is brought to foreclose a mortgage, or for jiossession under
the same, or for the recovery of land, and any waste on the land has been
committed or threatened by the defendant, or any one claiming under
him or acting by his pemiission, the court in which the suit is ]iending
or any one of the justices may on the application of the plaintiff, either
in terra time or vacation, issue a writ of injunction to stay such waste.
Sect. 16. In any case under the preceding section, the court or jus-
tice may require that the ajiplicant shall before the issuing of the writ
give bond with sufficient sureties to the adverse party, conditioned that
the applicant shall ]iay all damages which may arise from the issuing of
the injunction if it is dissolved.
Sect. 17. The court may arrest and commit the defendant for a
violation of such injunction, and issue such other process as may be
necessary or proper to enforce obedience thereto, in like manner as the
supreme judicial court may do upon a suit in equity pending before
them ; and the injunction ma)' be dissolved, either in term time or vaca-
tion, by the court in which the suit is pending, or by any one of the
justices.
CHAPTER 139,
OF ACTIONS FOR PRIVATE NUISANCES.
Section
1. Judgment for abatement of nuisance. War-
rant therefor.
2. may bo postponed.
3. when demandable of right.
4. expenses of executing.
Section
5. Injunctions may be issued to prevent a nui-
sance.
G. Same subject.
7. L^unction, how dissolved.
.Judgment for
ab.atement of
nuisance.
Warrant there-
for.
K. S. 106,§§1,2.
]«■-', 312.
11 IMclc -152.
may be post-
poned.
It. S. IOC, § 3.
when de-
mandable of
right.
E. S. 100, § 4.
Sectiox 1. "Wiien the plaintiff prevails in an action of tort for a
nuisance, the court may, in addition to the usual judgment for damages
and costs, enter judgment that the nuisance be abated and removed, and
may award an execution in common form for the damages and costs,
and a se])arate warrant to the ]iroper ofKcer, requiring him to abate
and remove the nuisance at the expense of the dell'iidant, in like man-
ner as public and common nuisances are abated and removed.
Sect. 2. The court may on motion of the defendant order a stay of
such warrant for a time not exceeding six months, to give him o])portu-
nity to remove the nuisance, upon his undertaking to do so within the
time ordered.
Sect. 3. If the plaintiff recovers judgment in a second suit for the
continuance or repetition of the same nuisance, whether there was in
the first suit a judgment for abatement and removal or not, he shall be
Chap. 140.] foreclosure and redemption of mortgages.
711
entitled as of right to a judgment for abatement and removal, and to a
warrant to be issued as before provided.
Sect. 4. The expense of abatement and removal shall be collected
by the officer in the manner damages and costs are collected vipon exe-
cution ; except that the materials of buildings, fences, or other things,
removed as a nuisance, may be sold by the officer as goods are sold on
execution for the pajanent of debts. The officer shall apply the pro-
ceeds of the sale to defray the expenses of the removal, and pay over
any balance to the defendant upon demand. If the jiroceeds are not
sufficient to defray the expenses, he shall collect the residue.
Sect. 5. After the commencement of a suit in equity concerning a
nuisance, the sujireme judicial court or any one of the justices, either in
term time or vacation, may issue an injunction to stay or prevent any
nuisance on the premises in question.
Sect. 6. When an action of tort for a nuisance is pending, either in
the superior court or the supreme judicial court, an injunction may be
issued and enforced by the same court or one of the justices, in the
manner provided in the preceding section.
Sect. 7. Every injunction issued as provided in the two preceding
sections may be dissolved, either in term time or vacation, by the court
by which it was issued or one of the justices.
Expenses of
executing: war-
rant for abate-
ment of nui-
sance.
K. S. 100, § 5.
Injunction to
prevent nui-
sance.
K. S. 100, §§ 0,
Same subject.
K. S. 100, § 8.
18.5-,', 312.
ISo'J, 190.
Iiyunction,how
dissolved.
II. S. 100, § 9.
CHAPTER 140.
OF THE FORECLOSUKE AST) REDEMPTION OF MORTGAGES.
possession and fonecloscre.
Section
1. Foreclosure by action or entry.
2. Certificate of entry to be recorded.
3. 4. Form of action and judt,r[nent.
5, G. Form of conditional judirmcnt.
7. Assignee of niortg:a^ee may cuter or sue.
8. Proceeding's in such case.
9. Mortyag'ee may enter before breach, and
bold subject to account.
10, 11. Mortj^nge, how foreeioscd in such case.
12. Certificate of notice or new entry to be re-
corded.
REDE5IPTION.
13. MortgaofP, may be redeemed.
14. Piirty redeeming to i>ay, or tender debt, Ac.
15. Account to be taken of rents, &c.
16. Tender, when to be made. Suit for rcdemi>-
tion.
17. Suit to be brought within one year.
18. Plaintiff to pay into court sum tendered, Ac.
1£. Suit may be brought without ju'evious ten-
der.
20. In suits in equity, court may at any time
order sum not in dispute to be paid.
21. Costs upon redemption.
22. Proceedings when tender is insufficient.
23. In what court suit to be brought.
24. Comuiencemeut of suit.
25. Decree for redemption.
20. Court to award balance due with interest at
twelve per cent.
27. Pliiintiff may hare execution thereon.
28. Judgment, &c., for balance due from mort-
gag'oo.
29. If money tendered, &c., exceeds sum due,
amount due to be deducted, &c.
Section
30. K mortgag-eo receives more than due, ex-
cess may bo recovered back.
31. New parties may be brought in.
32. Executors, »tc., may tender and redeem.
Z3. may bring suit upon tender by deceased.
34. Tender may be made to guardian.
35. "Where execution for possession Is satisfied,
mortgagee, &c., to discharge.
OPENING OF FOKECLO.SCRE.
30. Foreclosure to be opened, in ease, &c.
MORTGAGES BY DEFEASANCE.
37. Conveyance with defeasance constitutes a
mortgage.
:iIORTGAGES \VITIf POWER OF SALE.
38. When power of sale in mortgage deed, de-
mandant may have decree of sale.
39. Sale by mortgagor not to impair rights of
mortgagee.
40. Party selling to report to court. Sale con-
firmed. Persons interested may intervene.
41. Parties interested in equity of redemption
to bo summoned befoi-e decree.
42. 3Iortgagee, &:c., may give notice and sell
in pursuance of power, file copy of notice,
and affidavit, in registry of deeds.
43. AiTidavit or copy of record, evidence of due
execution of power.
44. When sale under power shall bar dower.
MORTGAGES TO THE COJIMONWEALTH.
45. Mortgages to the commonwealth.
40. Proceedings for foreclosure.
47. for redemption.
48. Suit in equity may be brought; service,
judgment, &c.
712
MOUTGAGES OF REAL ESTATE.
[Chap. 140.
Foreclosure by
action or entry.
K. S. 107, § 1.
7 Greeul. 31.
6 Pick. 268.
10 Met. 172.
llMft. .384, 566.
2 Cush. 374.
eCush. ill.
10 Cush. 166.
2 Gray, 473.
5 Gray, 545.
Certificate of
entry to be re-
corded.
K. S. 107, §2.
13 MasB. 300.
17 .Mass. 4>i».
4 Piclc. 408.
4 Met. 498.
10 Met. 344.
4 Cush. 172.
fiCush. Ul.
10 Cush. 163.
5 Gray, 318.
7 Gray, 203.
Form of action
and judgement.
K. S. 107, § 3.
1852, 312, § 2.
2 Mass. 400.
13 Mass. 510.
15 Mass. 487.
16 Mass. 348.
3 Mot. 341.
8 Met. 517.
13 Met. 300.
0 Cush. 170.
Same Bul:>ject.
K. S. 107, §4.
10 Met. 174.
Form of condi-
tional judj;-
nient.
It. S. 107, § 5.
7 Met. 581.
S Met. 517.
11 Met. 384.
4 Gray, 110.
5 Gray, 423.
Same subject.
K. S. 107, § 6.
11 Met. 384.
Assi^paee of
mort^aj^ee
may enter or
sue.
It. S. 107, § 7.
U Gray, 438.
Proceedings in
such case.
K. S. 107, §S.
7 Pick. 31.
10 Met. 174.
12 Met. 154.
2 Cush. 262.
POSSESSION AND FORECLOSURE.
SECTio>f 1. After the breach of condition of a mortgage of real
estate, the mortgagee may recover possession of the mortgaged jirem-
ises by action in the manner liereinafter provided; or he may malie an
open and peaceable entry tliereon, if not ojiposed by the mortg.agor or
other person chiiming the jiremises ; and such pos.session, obtained in
citlier mode, continued peaceably for three years, shall forever foreclose
the right of redemj)tiuii.
6 Gray, 128.
Sect. 2. When an entiy for breach of the condition is made without
a judgment, a memorandum or certificate thereof shall be made on the
mortgage deed and signeil by the mortgagor or the person claiming
under him, or a certificate of two competent witnesses to prove the
entry shall bo made and sworn to before a justice of the peace; and
the same shall within tliirty days after the entry bo recorded in the reg-
istry of deeds for the county or district where the land lies, with a note
of reference from each record to the other, if the mortgage is recorded
in the same registry. No such entry shall be eifectual for the purj)oses
mentioned in the preceding section, unless a certificate or a deposition
in proof thereof is thus made and recorded.
Sect. 3. Tiie mortgagee in an action for jjosscssion may declare on
his own seisin, stating that it is in mortgage ; and if it ai)pears to the
court, upon default, ilemurrer, verdict, or otherwise, that the plaintiff is
entitled to the possession of the premises for breach of the condition of
the mortgage, the court shall, on motion of either party, award the condi-
tional judgment hereinafter mentioned, except as provided in the follow-
ing section.
0 Gray, 123, 428. 8 Gray, 154, 198.
Sect. 4. Unless the defendant is the mortgagor or his assignee, or
entitled to hold or claim the jiremises under him, he shall not redeem
the premises, nor have a conditional judgment rendered, unless with the
consent of the plaintiff; but the suit shall be conducted in all respects
like a writ of entry; and in all cases the judgment for the plaintiff may
be entered for possession as at common law, unless one or the other of
the parties moves for the conditional judgment.
Sect. 5. "When the conditional judgment is to be entered, the court
shall inquire and determine how much is due to the plaintiff on the
mortgage, and shall then enter judgment, that if the defendant, within
two months after the judgment, pays to the plaintiff the sum so found
due on the mortgage, with interest and the costs of the suit, the mort-
gage shall be void and the defendant shall hold the jDreniises discharged
thereof; otherwise, that tlie plaintifi" .shall have his execution for posses-
sion, and for costs of suit.
Sect. 6. If the condition of the mortgage is for the doing of some-
thing other than the payment of money, or if but jiart of the mortgage
money is due, the court, shall vary the terms of the judgment as the case
may require ; but shall award execution as before provided, unless the
defendant within two months after the judgment performs what is
therein prescribed.
Sect. 7. An entry for breach of the condition may be made, and
an action for possession may be brought, by an assignee of the mort-
gagee, whether the assignment is by deed or by operation of law, and
the action shall be conducted in like manner as if brought by the origi-
nal mortgagee.
Sect. 8. The action may bo brought like a writ of entry, against
whoever is tenant of the freehold, and the mortgagor may in all cases
be joined as a defendant, whether he then has any estate in the premises
or not; but he shall not be liable for costs when he has no estate and
makes no defence to the suit.
Chap. 140.] mortgages of real estate — redemption. 713
Sect,
gagee or
9. Nothing eontaineil in this chapter shall prevent amort- Morteageemay
any person claiming under him from entering on the premises, b?Jachf^,id
or recovering possession thereof, before breach of the condition of the iiow subject to
mortgage, when tliere is no agreement to the contrary ; b\it, in such k. s"°o'7, § 9.
case, if the debt is afterwards paid, or the mortgage redeemed, the ?,*^?!f'j??"
amount of the clear rents and jirotits from the time of the entry shall be i Gray, 512'.
accounted for, and deducted from the sum due on the mortgage.
Sect. 10. If such entry is before a breach of the condition, the three Mortpge, how
years limited for the redemption shall not begin to run until after the sScTse?'"
condition is broken, nor until after a notice in writinff siven bv the it- s. 107, § 10.
., 1 • • 1 1 • ^ ..1 ^ "^ xi 2 Mass. 496.
mortgagee or the ]ierson claiming under nmi, to the mortgagor or the 3 Mass. 155.
person claiming under him, that the former will thenceforward hold the I'v?'",'*''-,,?''''
. ,. , 1 , ,. , 1 ■ ■ ,- I ^ n 1 ^ CUSU. yi.
premises tor the breach 01 the contlition, or tor the purpose 01 loreclos-
ing the mortgage.
Sect. 11. The person thus entitled to hold tlie premises for breach Same subject.
of the condition may instead of such notice in wi'iting make a new Ja iiass":/i3.''
formal entiy for the breach of the condition, or may bring an .action f Cusii. 91.
therefor in the manner herein before provided ; and such action, if
brought against the mortgagor or any person claiming under him, may
be maintained notwithstanding the premises are at that time in the
possession of the jdaiiitiff.
Sect. 12. Such notice of intention and such new entry shall not be certificate of
effectual for the ]iurposes aforesaid, unless a certiticatc or deposition to "utrv^to'^bcfire-
prove the same is made and recorded, as before pro\ided in the case of corded.
an original entry for breach of the condition. >. s -
EEDE3IPTI0N.
Sect. 13. When the condition of a mortgage has been broken, the Morttrage may
mortgagor or any person la^rfully claiming or holding under him, may ^ s!''io7™§'i3
redeem the same unless the mortgagee, or some person lawfully holding 2i> rick. 401.
or claiming under him, has obtained possession of the premises for the « qI^^\ jog'.
breach of the condition, and has continued that possession for three years. c^ip^'i^L^jr.™
Sect. 14. The person entitled to redeem shall pay or tender to the p„r(y J-odJem"
mortgagee, or person lawfully claimino- or holding under him, the whole iig <» pay or
?i 1 1 11*1 ^ 1 1 II 1- ^ 1 teuder debt, &c.
sum then due and jiayable on the mortg.age, and shall pertorm or tender h. s. 107,514.
]iertbrmance of every other condition contained therein ; and if there 5 J.'*-''; '^?™
has been a suit for recovering the premises, he shall pay or tender the 2 Gray,' 475.'
costs if unpaid.
Sect. 1.5. If the mortgagee or any person under him has had pos- Account to bo
session of the i>remises, he shall account for the rents ami jirotits, and ^.'i!'™ °' "''"^'
shall be allowed for all sums expended in reasonalile repairs and ini- u.s. 107, §15.
provements, all sums paid for lawful taxes and assessments, and all 5 p'^ck I59, 270.
other necessary expenses in the care and management of the premises. ^ ^'}SK- *''•
J I _ ." . . ' 10 l^ck 39s
If on such account there is a balance due from him, it shall be con- 4 jict. hs. '
sidered as so much ]iaid towards the <lebt due on the mortgage. If j ^[J^Jj- *^^-
there is a balance due liim, it shall be added to the debt, and be paid or 5 Grayi Jis!
tendered as such. 0 Gray, 550.
Sect. 16. The tender m.ay be made at anytime within the three Tender, whea
years limited for redemption, before as well as after an entry for breach l^uft^f^^r^";
of the condition; and if the mortgagee, or person claiming or holding dcmptiou.
under him, does not accept the same and discharge the mortgage in '"'
the manner ]ireseribed by law, the mortgagor, or person claiming or
holding under him, may recover the premises by a suit in equity for
redemption.
Sect. 17. The tender, if not accepted, shall not prevent the fore- Suit to be
closure of the right of redemption, unless a suit is commenced within om'"j^e'ar.^""^
one year after the tender is made. e- s. 107,517.
Sect. 18. If in such suit the plaintiff alleges that he has tendered Plaintiff to pay
60* 90
714
MORTGAGES OF REAL ESTATE — REDEMPTION. [ChAP. 140.
into court sum
tendered, &c.
185?, 103, § i.
Suit may be
broutfht with-
out previous
tender.
II. S. lOr, § IS.
r Met. isr.
7 Cusb. 220.
7 Gray, 2rU.
In suits in equi-
ty, court may .-it
any time order
sum not in dis-
pute to be p.iid.
WSr, 10.5, § I.
Costs upon re-
demption.
K. s. lor, § 19.
Proceedings
when tender is
insufiieient.
K. S. 107, § 20.
In wliat court
suit to be
brouglit.
K. S. 107, § 21.
Ifio'J, lUO.
See Cb. 114, § 10.
Commencement
of suit,
isari, :il(!.
7 Met. 137.
See Cb. 113, §3.
Decree for re-
demption.
U. S. lor, § 23.
7 Cu.ill. 221).
2 Gray, 4r5.
Court to award
balance duo,
witli interest at
12 per cent.
1850, 21.
riaintiff may
have execution
tlicreoa.
or offered to pay the sum due on the mortgage, he shall when he com-
mences his suit p.ay the sum thus alleged to the clerk of the court for
the use of the ]5arty entitled tliereto.
Sect. 19. The person entitled to redeem maj' at an_y time within
the three years limited for the redemption, and either before or after
an entry for breach of tlie condition, bring a suit for redemjition with-
out a previous tender, and may therein ofter to pay such sum as shall
be found due from him, or to perform such other condition as tiie case
requires.
Sect. '20. The court in which a snit to redeem is pending, or any
justice thereof, may at any time after the commencement of the suit,
in term time or vacation, ascertain and determine by reference to ii
master or otherwise, wjiether any and what sum not in dispute is due on
the mortgage ; and by an interlocutory order direct the same to be paid
to the mortgagee, or for his use to the clerk of the court.
Sect. 21. If suit is brought without a previous tender, and it appears
that any thing is due on the mortgage, the plaintitt' shall ])ay the costs
of suit, unless it appears that the defendant has unreasonably refused or
neglected, vi'hen re(pieste<l, to render a just and true account of the
money due on the mortgage, and of the rents and profits, and sums
paid for taxes, re])air.s, improvements, and other necessary expenses ;
or that he has otlierwise by his default prevented the ])laintiff from
performing or tendering jierfdrmance of the condition before the com-
mencement of the suit. In all other cases of a snit for redemption, the
court may in their discretion award costs to either party as equity may
require.
Sect. 22. When such suit is founded on a previous tender, and it
appears that the tender was insufficient, the plaintiff shall nevertheless
be entitled to a decree for redemption, according to the provisions of
sections nineteen and twenty-one, in the same manner as if no tender
had been set forth in the suit : prooidecl, that the suit is commenced
within the three years limited for the reik'm))tion.
Sect. 23. A suit for redemjition may be brought in the superior
court, or the sujirome judicial court, held for the county where the land
lies, and if brought in the superior court an appeal may be had to the
8U])reme judicial court as in oilier civil actions.
Sect. 24. When a bill in equity for redemption is inserted in a
writ, the service shall be deemed the commencement of the suit, if the
writ or a copy thereof, with or witliout the bill, but with a description
of the premises sought to be redeemed, attested by the officer, is depos-
ited within three days after the day on which the service is made, in
the oiKce of the clerk of the court to which the writ is returnable ;
otherwise the de))ositing of such copy or writ shall be deemed the
commencement of the suit.
Sect. 25. If it apjiears that the plaintiff is entitled to redeem, the
court shall inquire and determine what sum is due on the mortgage, or
what other a^t the plaintiff is bound to perform for the redemption of
the premises, and shall enter a decree, that, upon the payment of such
sum, or the performance of such other thing, within such time as the
court shall order, the plaintiff shall have possession of the premises, to
hold discharged of the mortgage.
Sect. 26. When it ajipears to the court that the mortgagee has not
unreasonably neglecteil or refused to render a true account of the rents
and profits of the mortgaged estate, tlie court may award to him the
balance found due on the mortgage with interest thereon from the
expiration of three ye.ars after such entry to the time of rendering
judgment in the suit, at a rate not exceeding twelve per cent, a year.
Sect. 27. The court may at the same time order or decree, that if
the dfiffindant neglects or refuses to accept the money or otlier thing
Chap. 140.] mortgages op real estate — redemption. 715
rcqnireil by the decree to be p.aid or perfoniied, the money sh.ill be left E. s. lor, §34.
for his use witli the clerk of the court, or that such other thing shall be
done as the case may require ; and the plaintiff, after having pei-formed
every thing required of him by the decree of the court, may have an
execution for jiossession of the mortgaged premises.
Sect. 28. If, upon a suit for redemption, it apjiears that the de- jud-rmont, &c.,
fendant has received from the rents and profits of the estate or other- I°^J'"'""'',"' ''"'^
• I'T 1 1 111 T'l irom luori-
TX'ise more than is due on the mortoaore, the court shall award ludmncnt s^s^^.
and execution against him for such sum as is due to the plaintiff; and c, jiaVs.l'M.
if there are several defendants, such judgment and execution may be " ^''"^^- '"i-
awarded against them, cither jointly or severally as the case may re-
quire, for the sums received by tliem or either of them respectively.
Sect. 29. When the money tendered and brought into court ex- ifmonpytcn-
ceeds the sum found due on the mortgage, and when an>- sum is !.','v'i'iVu,']','thfc
awarded to the iilanitiff on account of the rents and profits received liv "niciuiit .luo to
- - - ' - ... i _ . _ _- lK.,KdiicAticl,&.
K. S. Kir, § -M.
the defendant, or for costs of suit, the court may order the whole .'.''"." '"■''^■<' . "
amount so due to the j)laintiff to be deducted from tlie money In-ought
into court, and the same shall be restored to the plaintifi', and the resi-
due shall be paid to the defendant.
Sect. .30. If the mortgagee or person claiming or holding under ifmortKascc
him receives from the rents and profits of the premises, or upon a fiian"<iiic'"Jx-''
tender made to him, or in any other nianner, more than is due on the ii?ss may be rc-
mortgage, and if no suit for redemption is brought against him, the i{'.\s!7(ir,"§'.ir.
mortgagor or other person entitled to such excess may recover it in an ''^-'' ■*'-'•
action of contract for money had and received to his use.
Sect. 31. If, during the pendency of a suit for redemption, it Xcw iinrtics
appears that any other person is interested therein, the court may "[">' '''-■ ''""•£''*
cause him to be made a party thereto upon such terms as they shall k. s. lor. §28.
think ]iroper ; and may order a summons or a subpa?na to be issued
and served on him in such manner as they shall direct ; and he sli.all
thereujion be allowed and required to appear and answer to the suit.
Sect. 32. If a person entitled to redeem a mortgaged estate dies Exoc«tors, &c.,
without having made a tender for that purpose, a tender may be made, "'.jh'c'n'."'^' '^*'
and a suit for redemption commenced and prosecuted, as well by n. s. lor, S-so.
the executors or administrators as by the heirs or devisees of the de-
ceased.
Sect. 33. If a tender has been made by such deceased person in mny ijiing
his lifetime, a suit for redemption founded thereon may be commenced 1™' rtccrasc™'''^'
and prosecuted by his heirs, devisees, executors, or administrators, in it. s. lor, §31.
like manner as it might have been by the party himself ; and if the
plaintiff in a suit dies, the suit, whether founded on a jn-evious tender
or not, may be prosecuted to final judgment by his heirs, devisees,
executors, or administrators.
Sect. 34. When the mortgagee, or the person claiming or holding Tondcr m.ay be
under him, is under guardianship as an infant or otherwise, the tender "U,"!^ '" »""''"
may be made to the guardian, and he may, upon satisfaction, execute a ii.s\ 107,532.
release of tiie mortEfaare.
Sect. 35. AVhen execution has issued on a judgment for possession where exc
id has been levied, if it shall be afterwards satisfied by payment of the IX [sKSr- ''^"
? exccu-
and has been levied, if it shall be afterwards satisfied by payment ot tlie sion isKltisflcd^
amount due on the mortgage and costs, the mortg.agee, his executors, •""''??"='*; •'^<'-
administrators, or assigns, shall at the expense of the mortgagor enter isjs, 144', §"2.'
on the margin of the record of the execution an acknowledgment of •'''''' ^'''- 1*'' 5 53.
satisfaction, or make to the mortgagor a deed of release which shall be
recorded, with proper notes of reference to the execution discharged
thereb}-.
OPENING or FORECLOSURE.
Sect. 36. If after the foreclosure of a mortgage the person entitled beopenetinn"
to the debt reco\'ers judgment for any part of it, on the ground that the case, &e.
716
MORTGAGES OF REAL ESTATE WITH POWER OF SALE. [ChAP. 140.
I!. S. !07, § 33.
:illas9. 160,51)2.
8 Pick. 3.3G.
8 Met. 154.
value of the mortgaged premises at the time of the foreclosure was less
than the sum due, such recovery shall open the foreclosure ; and the per-
son entitled may redeem the premises, notwithstanding the three years
limited in that behalf have exjjired : provided, that his suit for redemp-
tion is brought within one year after the recovery of such judgment.
MORTGAGES BY DEFEASANCE.
rnnveyance
M'ith defea-
sance.
U. S. 107, § 34.
L",' Pick. 52(5.
.-. Orar, SOO.
See Cil. 89, § 15.
Sect. 37. The mortgages mentioned in tTiis chapter shall include not
only those made by a common deed of mortgage, but also such as are
made by a conveyance with a separate deed of defeasance.
Wlien power of
s ill- in mort-
is i'.^e deed, dc-
inaadant may
have decree of
.sale.
IN.H, 3?7, § 1.
■: Jlet. 2y.
Sale by mort-
gat^or not to im-
pair rights of
mortgagee.
Party selling to
report to court.
Sale confirmed.
Persons inter-
ested may in-
tervene.
IS54, 377, § 2.
Parties inter-
ested in equity
of redemption
to be sum-
moned before
decree.
1854, 377, § 3.
Mortgagee, &c.,
may give notice
and sell in pur-
suance of pow-
er, file copy of
notice and affi-
davit, in regis-
try of deeds.
1857, 229, § 1.
a Met. 2i).
2 Cush. 412.
7 Gray, 243.
Aflidavit or
copv of record,
cviclencc of due
execution of
power.
1K57, 239, § I.
When Bale un-
der power shall
bar dower.
MORTGAGES WITH POWER OP SALE.
Sect. 38. When a power of sale is contained in a mortgage, and a
conditional judgment has been entered, thedemandant may, instead of
a writ of possession, have a decree entered that the property be sold
pursuant to such power of sale ; and thereupon the demandant shall
give such notices and do all such acts as are authorized and required by
the power, or the court passing the decree.
Sect. 39. No sale or transfer by the mortgagor shall impair or annul
any right or power of attorney given in the mortgage to tlie mortgagee
to sell or transfer the mortgaged property, as attorney or agent of the
mortgagor.
Sect. 40. The party selling shall within ten days thereafter make a
report thereof and of his doings, to the court, under his oath, and file the
same in the clerk's office, and the same may be confirmed and allowed,
or set aside and a resale ordered, as to the court seems just and lawful.
Any person interested may intervene or be summoned and heard on
such proceedings ; and the order of the court confirming (he sale shall be
conclusive evidence, as against all persons, that the power of sale was
duly e-xecuted.
Sect. 41. If the tenant in the action in which such decree of sale is
to be made, is not seised in fee simple in possession of the whole equity
of redemption of the land demanded, no decree for a sale shall be made
until all parties interested in the equity of redemption, and whose estate
or interest therein would be aftocted by such sale, including any married
woman having right or pos.sibility of dower, have been summoned to
appear and had duo opportunity to be heard according to the order of
court.
Sect. 42. Instead of such suit and decree of sale, tlie mortgagee, or
any person having his estate thei-ein, or authorized by such power to act
in the premises, may upon a breach of the condition give such notices
and do all such acts as are authorized or requireil Ijy the power; and he
shall, within tliirty days after selling the property in pursuance of the
])ower, file a co]iy of the notice, and Ids affidavit setting forth his acts in
the premises fully and particularly, in the oflice of the registry of deeds
in the county or district where the ]iroperty is situated. The aflidavit
and copy of notice shall be recorded by the register, with a note of refer-
ence thereto on the margin of the record of the mortgage deed if recorded
in his office.
Sect. 43. If it appears by such affidavit that he has in all respects
complied with the requisitions of the ])Ower of sale, in relation to all
things to be done by him before selling the jiroperty, and has sold the
same in the manner required by such power, the affidavit, or a duly cer-
tified office copy of the record thereof, shall be admitted as evidence
that the power of sale was duly executed.
Sect. 44. If the mortgage was executed by a man having at that
time no lawful wife, or if being married the wife of the mortgagor joined
Chap. 141.] informations, &c., and recovery of lands by state.
-17
in the deed in token of her release of dower, the sale of the property in 1854, xrr, § i.
either of the modes aforesaid shall be effectual to bar all claim and pos- i*^-"" 229. § 2-
sibility of dower in the jiroperty.
MORTGAGES TO THE COMMOXWEALTH.
Sect. 45. Wlien a mortgage is made or assigned to the common- Mortgages to
wealth, the treasurer may demand and receive the money due, and upon ".i!i,m™°"'°"
payment shall make and acknowledge a discharge of the mortgage. k. s. lor, §35.
Sect. 46. If the condition of such mortgage is not duly ])erformed, Proccedmjjs for
the treasurer may cause an entry for the breach of the condition to be {{."^s^'ior,! 'so-
made by hiniseltj or l»y any person whotn ho appoints for the pui'pose, in
the name and behalf of the commonwealth, or he may bring an action
in the name of the commonwealth to recover possession of the mortgaged
premises ; and such possession, obtained either by entry or by action,
shall have the same effect in foreclosing the right of redemption as a
similar possession by any other mortgagee.
Sect. 47. The mortgagor or his assigns may redeem such premises . for redemp-
in like manner and upon the same terms as if they were held by any u° s. lor, § sr.
other mortgagee ; and the payment or performance of the condition for
that purpose shall be made or tendered to the treasurer.
Sect. 48. If the treasurer and the person ajiplying to redeem the Suit in equity
mortgage disagree as to the sum due, the person apjilying m.ay bring a "roun-hti scr-
suit in equity against the commonwealth for the redem]ition, in the vice; judgment,
supreme judicial court for the county of Suffolk. The jtrocess shall be k.'s. lor, §§3&
served on the treasurer, who shall a]ipear and answer in behalf of the '''•'•
commonwealth; and like proceedings shall be had, and judgment ren-
dered, as are provided in the case of other mortgages; excejit that the
treasurer shall accept any p.ayment due to the commonwealth, and upon
the receijjt thereof; or u])on the performance of such other act as the
court orders, shall discharge the mortgage in like manner as when the
debt is paid without suit.
CHAPTER 141.
OF INFORMATIONS FOR INTRUSION AND THE RECOVERY OF LANDS
BY THE COMMONWEALTH.
Section
1. Information of intrusion. Filing and sum-
mons.
2. yer\ irr iiiid proceediugB.
3. Suits, wlien commenced by order of legis-
lature.
4. when without such order.
5. Piililic notice, iu what canes to be given.
C. Who may appear as defendants.
7. Costs, when several defendants.
8. Rents and improvements.
9. Commonwealth seised without execution.
10. Judgment, how far conclusive.
Section
11. Claimant not concluded may bring writ of
entry.
12. against tenant or occupant. Service and
proceedings.
13. Rents and improvements in such case.
14. Costs.
15. Informations against intruders on laud
held for Indians.
If). District-attorney to prosecute.
17. Trial in superior court linal, &c.
18. Proceedings to conform to preceding pro-
visions,
19. On recovery, title to vest in trustees, &c.
Section 1. When any person unlawfully enters .and intrudes upon information of
[• holds any lands belonging to the commonwealth, tlj^e same may be "'n',',',™";] =„„,
recovered upon an information filed and jn-osecuted by tlie attorney-
general or any district-attorney, in the supreme judicial court in any
county, describing the premises and setting forth the title and claim of
mnns.
R. S. 108, f
1,2.
718
INFORMATIONS, &c., AND RECOVERY OP LANDS BY STATE. [ChaP. 141.
Service and pro-
ceefliug;s.
It. S. los, §3.
•Suits, when
cnnimeucL'd by
order of legisla-
ture.
K. S. 108, § 0.
wlicn without
sue] I order.
]!. S. lOS, §r.
:i l"i,-k. ^.;4.
Public notice,
in wiiiit cases to
1,0 i^iven.
It.'S. lOS, §8.
Who m-ly ap-
pear as d'efeud-
ants.
K. S. 108, § 9.
Costs, when
several defend-
ants.
R. S. 108, § 10.
Rents and im-
provements.
K. S. 108, § 11.
.See Ch. 1.34.
Commonwealth
seised without
exocutiou.
E. S. 108, § 5.
.Judgment, how
far conclusive.
E. S. 108, § 12.
Claimant not
concluded may
bring writ of
entry.
K. S. lOS, § 13.
Writ must be
the commonwealth thereto ; and a summons shall thereupon issue to
the persons therein named as intruders or trespassers, returnable in the
county where the lands lie.
Sect. 2. The service of the summons and all other proceedings in
the suit shall be conducted in the same manner substantially as in real
actions between private persons, unless where a different course is pre-
scribed.
Sect. 3. "When the title of the commonwealth is founded on a for-
feiture for the breach of a condition in rii}' grant or conveyance made
by the coinmonwealth, or by the jirovince or colony of Massachusetts
Bay, no suit therefor shall be commenced unless by an order of the
legislature.
Sect. 4. If the claim of the commonwealth is founded on an escheat
for want of heirs of the last owner of the premises, or on any other
title except that of the forfeiture mentioned in the preceding section,
the attorney-general or district-attorney may commence and prosecute
a suit therefor whenever he has good reason to believe that the claim of
the commonwealtli can be established by proof
Sect. 5. In case of any supposed escheat, when no person ajipears
as the heir of the person last seised, and in all cases when there is rea-
son to suppose that there is any person claiming any estate or interest
in the premises whose name is unknown, or who is absent from the
state, or cannot be found therein to be served with process, the court
shall, in addition to any other service, order notice to be given to all
j)ersons interested to appear and ansv.'er to the information, by causing
the substance thereof with the order of the court to be published three
weeks successively in such newspaper as the court shall direct, the first
publication to be ninety days at least before the time appointed for the
ap]iearance of the parties.
Sect. G. Anj' person who claims an estate or interest in the prem-
ises, though he is not named in the information nor served with process,
may ajijiear and answer thereto ; but a defendant who is not named
shall not recover costs against the commonwealth, unless it appears that
he has some estate or interest in the premises, although the common-
wealth fills to establish its claim thereto.
Sect. 7. When there are several defendants, the court may award
costs for or against any one of them, as the justice of the case may re-
quire, in like manner as if he were the sole defendant.
Sect. 8. If the commonwealth prevails in the suit, the defendant
shall be cliargeable for the rents and profits, and be entitled to an allow-
ance for all improvements, in like manner as is provided in the case of
a writ of entry between private persons.
Sect. 9. The commonwealth shall be deemed and taken to be actu-
ally seised and possessed of the premises as soon as judgment is ren-
dered in its favor, without a writ of possession.
Sect. 10. Tlie judgment shall be "onciusive between the common-
wealth and the defend.mts who apjiear and answer, and against every
person named as a defendant upon whom the summons has been duly
served within the state, and all persons claiming under such defendants.
Sect. 11. Any person who is not concluded by a judgment for the
commonwealth according to the provisions of the ]ireceding section,
may, until his claim is barred by the law for the limitation of real
actions or otherwise, bring a writ of entry to recover the premises from
the commonwealth or any person who may then hold under the com-
monwealth ; may deny and disprove any facts alleged and proved in
the first suit, and allege and ])rove any other focts in support of his
claim ; and if it apjiears that he is entitled to the premises, shall have
judgment and execution therefor in common form.
Sect. 12. If the commonwealth continues seised of the premises at
CnAP. 141.] IXFOBMATIONS, &c., AND RECOVERY OF LAXDS BY STATE. 719
the time when such new action is commenccfl, it shall be brought brought aijainst
against tlie tenant or occnpant of the jireniiscs, and in addition to the palft"**"^"™"
service on him a copy of the original writ or summons shall be left with Sirviw nnd pro-
the attorney-general or district-attorney fourteen daj-s at least before k.'^s'.'uis, § h.
the return day, that he may appear and defend the suit. If the com-
monwealth has granted away the premises, the action shall be brought
against the tenant of the freehold. In either case it shall be conducted
and disposed of as if no such information had been filed.
Sect. 1.3. The demandant, if he recovers, shall be entitled to the Ecnts ami im-
rents and profits, and shall be chargeable for all improvements, in like sudi'en™*^ '"
manner as is provided in chapter one hundred and thirty-four, although R- s- ws, § is.
the premises have not been held and possessed under the adverse title
as much as six years.
Sect. 14. Costs shall be awarded and taxed for the party prevailing, costs.
If the judgment is in favor of the commonwealth, an execution for the R-S-ios, §4.
costs shall issue ; if it is in fiivor of the defendant, the costs shall be
))aid out of the treasury, by the warrant of the governor and council.
Sect. 15. When any person unlawfully enters into, intrudes upon, informations
or holds, any land, the title to which is in the commonwealth for the "f?'"°st intru-
1 1 i^ /. •! 11 /. T 1- • dcTs on land
use and benent oi any tribe or body of Indians, or in trustees, guar- iiouifor In-
dians, treasurers, or agents, appointed by or under the authority of the iwof 34, §§ i, 2.
commonwealth for the use and benefit of such tribe or body, or of any J*^?' .J"^?-
individuals thereof or their descendants, the same may be recovered 1859J 190. '
upon an information filed and prosecuted by the attorney-general or
district-attorney in the superior court for the county where the land is
situated.
Sect. 16. The district-attorney for such district shall file and prose- nistrict-attor-
cute such information whenever lie has good reason to believe that the "utp!"^™*'^
land can be recovered. i^5, 245, § 2. i84o, 34, § 2.
Sect. 17. The trial of such information in the superior court shall Trial in sup. ct.
be final, saving to each party the right of exception in matter of law, 5mo','34^§3
according to the provisions of chapter one hundred and [fourteen] if^'ji I'Jii-
[thirteen.']
Sect. 18. The proceedings in the information and the effects thereof Prooocdintrs to
shall in all respects be conformable to the preceding provisions of this ™iUu"provis-'^
chapter; but if the final iudrnnent is in iavor of the commonwealth, a 'o"**-
writ of jwssession may be sued out and served Uke a similar writ in > > » •
other civil process.
Sect. 19. If in any such proceeding the commonwealth recovers On recovery,
possession of land to or in which such trustees, guardians, treasurers, or tnistw8,'&o."'
agents, have title or interest, such possession shall be deemed to be the i!;jj> 243, § 3.
possession of such trustees, guardians, treasurers, or agents, if any ai'e
living, otherwise the commonwealth shall hold the same upon and for
the uses and trusts aforesaid until others are appointed.
720
TRUSTEE PROCESS.
[Chap. 142.
TITLE lY.
OF CEETAIN WKITS AND PROCEEDINGS IN SPECIAL CASES.
ClL\PTER 142. — Of Trustee Process.
Chapter 143. — Of Keplevia of Property.
Chapter 144. — Of Habeas Corpus, Personal Replevm,and Personal Liberty.
Chapter 14o. — Of Audita Querela, Certiorari, Mandamus, and Quo Warranto.
Chapter 146. — Of Writs of Error and Keview.
Chapter 147. — Of Reference to Arbitration by Agreement before a Justice of the
Peace.
Chapter 148. — Of Improving Meadows and Swamps.
Chapter 149. — Of the Support and Regulation of Mills.
Chapter 150. — Of Liens on Buildings and Land.
Chapter 151. — Of Mortgages, Pledges, and Liens upon Personal Property.
Chapter 152. — Of Recognizances for Debts.
Chapter 153. — Of Seizing and Libelling Forfeited Goods.
CHAPTER 142.
OF TRUSTEE PROCESS.
cormencement and service of process.
Sectiox
1. In what cases the process lies, &c.
2. Writ, how issued.
3. form of.
4. where returnable.
5. service of.
6. New trustees and new service.
7. Suit not to proceed, unless, &c.
APPEARANCE AND ANSWER OF TRUSTEE.
8. Trustee to file answer, &c.
9. may be further examined on written in-
ter rog^atories.
10. Corporations, how to answer.
11. Answer to be taken as true, &c.
12. Mode of trial.
13. Trustee, default of.
14. penalty on, for perjury.
PROCEEDINGS IN RELATION TO ADVERSE
CLAIMANTS.
15. Adverse claimant may become a party.
IG. Proceediny;s in such case.
17. Testimony, how taken.
PROCEEDINGS WHEN SUIT IS PENDING
AGAINST TRUSTEE.
IS. Case of attachment of a demand already in
suit.
19, 20. Proceedings in such case,
WHEN AND FOR WHAT TRUSTEES ARE
CHARGEABLE, &C.
21. Liability as trustees.
Section
22. Liability of executors and administrators.
23. of assignees of insolvents.
24. Debt may be attached before it is payable.
25. Fraudulent conveyance to trustee.
20. Mutual demands between principal and
trustee.
27. Certain demands excluded.
28. Trustee not chargeable if he has paid over
before knowledge of service.
29. nor for a certmn sum duo for wages, &c.
30. If a savings bank is charged as trustee, and
identity of defendant doubtlul, plaintiff to
give bond.
31. What demands not attachable by this pro-
cess.
judgment, execution, AND SCIRE FACIAS.
32. Form of judgment against trustee.
33. Goods not demanded in thirty days may be
attached again.
34. or recovered by defendant.
35. or otherwise delivered to the officer on
demand.
3G. Demand on absent trustee.
37. Judgment agaiust trustee shall protect him,
&c.
.38. for him not to bar defendant.
39. Scire facias agaiust trustee, after judg-
ment.
40, 41. Proceedings therein upon default.
42. upon examination of trustee.
43. Writ of scire faciits to be served within two
years after judgment, except, &c.
Chap. 142.] tru.stee process — commencement and service.
(21
DEATH OF PARTIES.
SlCCTIIJX
44, L'lion death of trustee, executor, &c., liable.
45. rroccediuj^s when trustee dies before judg-
ment.
4G. when executor, &c., does not appear.
47. scire facias ag-linst executor, &c.
48. "When trustee dies afterjudg^ent.
49. within thirty days after judgment.
50. 51. .Tudgmeut agaiust executor, &c., how
enforced.
PKOCEEDIXGS WHEN TRUSTEE HAS SPECIFIC
GOODS.
S2, 53. Case of trustee having speciflo goods,
&e.
54. Suit not to prevent his delivering them, un-
less, tfcc.
55, 5r>. Case of trustee having lien on the goods.
57. Such goods, how disposed of.
58. m.iy bo sold by trustee in case, &c.
59. Trustee when liable for non-delivery of
such goods.
COSTS.
60. Costs and expenses of trustee.
61. Trustee to retain costs out of effects in his
hands and to recover balance of plaintiflf.
Section
62. Costs when trustee is discharged.
6.3. when trustee is out of state.
64. when trustee does not dwell or have place
of business in county.
65. when trustee is liable to pay.
66. proceedings in such case.
67. when several trustees are liable for.
68. 69, 70. against trustee on scire facias.
71. execution for, against trustee.
72. on scire facias against several trustees.
73. for or against adverse claimant.
74. not to be recovered I>y plaiutilf, if wages
attached and five dollars are not recovered.
trustee process before justices of the
PEACE, &C.
75. Trustee process before police courts, &c.
70. Proceedings.
77. Writ may run into any county in certain
cases.
78. Trustee not liable out of county.
79. 80, 81. how may appear aud answer.
82. Costs for trustee, and allowance for ex-
penses.
S3. Justice may issue scire facias, although,
&c.
COMMENCEMENT AND SERVICE OF PROCESS.
Section 1. All personal actions eitlier in the superior court or the
supreme judicial court, may be commenced by trustee process ; exee])t
actions of replevin, actions of tort for malicious prosecution, for slander
either by writing or speaking, and for assault and battery; and any
person or corporation may be summoned as trustee of the defendant
therein. 3 Met. 5M. 13 Met. 471. 1 Gray, 424. See § 75.
Sect. 2. The writ shall be signed, sealed, bear teste, and be issued,
like other original writs in civil actions.
Sect. 3. It shall be in the form heretofore established, authoriz-
ing an attachment of the goods and estate of the defendant in his
own hanils, and also in the hands of the trustee, and shall be sub-
ject to alteration as is provided in chapter one hundred and twenty-
three.
Sect. 4. If all the persons named in the writ as trustees dwell or
have usual places of business in one county, the M'rit shall be returnable
in such county, otherwise it may be returnable in any county in which
either of them dwells or has his usual place of business, without regard
to the (lomicil of the other parties. i2Cush. 284. sGray, 3ii. 7Gray, 2S2.
Sect. 5. The attachment of the goods and estate of the defendant
in his own hands and ]iossession, if any, shall be made in the usual man-
ner, ami the writ shall be further served on the defendant and each of
the trustees in the manner prescribed for the service of an original
summons without an attachment.
Sect. 6. The plaintiff may at any time insert the names of other
trustees, and cause the writ to be served on them ; and after service on
a trustee the writ may be again served on him in like manner and with
the same eftect as if it had not been jireviously served. If service is
made on a trustee after service on the defendant, it shall be again served
on the defendant.
Sect. 7. If all the trustees are discharged, the plaintiff shall not pro-
ceed in the suit against the defend.-iiit unless there has been legal service
of the writ on him, or notice of the suit, or unless he actually appears
and answers thereto.
61 91
In what cases
the process lies,
&c.
K. S. 100, §§ 1,
4,6.
18.W, 190.
2 Mass. 37.
3 Kck. 302.
21 Pick. 109.
Writ, how is
sued.
1{. S. 109, § 2.
form of.
1701, 65, § I.
U.S. 100, § 3.
where return-
able.
K. S. 109, § 7.
IK52, 287.
22 Pick. 2.50.
4 Cush. 5S«.
6 Cush. 560.
service of.
R. S. 00, § .39.
R. S. 109, §8.
ia37, 210, § 1.
13 Met. 471.
See Ch. 123.
New trustees
and new ser-
vice.
R. S. 109, § 9.
Suit not to pro-
ceed, uulcss,
i-c.
R. S. 100, § 10.
13 Met. 471.
722
TRUSTEE PROCESS — ANSWER, CLAIMANTS. [ChAP. 142.
Trustee to file
answer, &c.
ISSa, 312, §50.
3 Met. 297.
may be fur-
tlier exfimiued
ou written in-
torrogatories.
1832, 312, § 57.
Corpor.itions,
how to answer.
U.S. 109, § (i.
1S52, 312, § 5lj.
2 Mass. 37.
3 Jlet. 5(H.
1 Gray, 424.
Answer to be
taken as true,
&c.
11. S. ion, § 15.
2 Mass. 90.
4 JIass. S5.
11 Mass. 4SS.
Mode of trial.
K. S. 109, § 10.
Trustee, default
of.
H. S. 100, § 14.
1.S52, 312, § 51'..
penalty on,
for perjury.
K. S. 109, § 78.
1852, 312.
4 Mass. 272.
10 Mass. 258.
8 Gush. 199.
APPEARANCE AND ANSWER OP TRUSTEE.
Sect. <S. Every person summoned ns trustee shall appenr and file
his answer witliin the first ten days of the return term of the writ if the
court sits so long, or otherwise before tlie adjournment of the court,
unless the court for good cause shown allows further time therefor.
The answer shall be sworn to by the trustee, and shall disclose as
plainly, fully, and ji.'irticularly as practicable, what goods, efiects, or
credits, of the defendant, if any, were in his hands or possession at the
time of tlie service of the writ upon him.
Sect. 9. The ])laintitt' may from time to time examine the supposed
trustee upon written interrogatories filed in the clerk's office. The an-
swers thereto shall be sworn to and filed in the clerk's office within seven
days after notice to the trustee or his attorney of the tiling of the inter-
rogatories, unless the court otherwise orders. If answers are not so
filed, the court may pass such order as the case may require.
Sect. 10. Corporations summoned as trustees may appear and an-
swer by their cashier, treasurer, secretary, or such other officer as they
shall appoint or as the court shall reqnire to attend for that purpose.
The answer and examination on o.ath of such officers or persons shall be
received as the answer and examination of the corpjoration.
Sect. 11. The answers and statements sworn to by a trustee shall
be considered as true, in deciding how far he is chargeable, but either
jiarty may allege and prove any other facts not stated nor denied by
him, that may be material in deciding that question.
7 Pick. 194. 8 Pick. 67. 4 Cusli. 314. 0 Cusli. 530. 10 Cush. 104.
Sect. 12. Any question of fact arising upon such additional allega-
tions may bo tried and determined by the court, or may be submitted to
a jury in such manner as the court shall direct.
Sect. 13. When a person duly summoned as a trustee neglects to
appear and answer to the suit as herein provided, he shall be defaulted
and adjudged a trustee.
Sect. l-l. If a person summoned as trustee, or the executor or ad-
ministrator of such jierson, or if an officer, agent, or other person, who
appears and answers for a corporation so summoned, uiion his examina-
tion on oath, knowingly and wilfully answers falsely, he shall, out of his
own goods and estate, ])ay to the plaintifl' in the trustee process, or to
his executors or administrators, the full amount due on the judgment
recovered therein, with interest therefor, to be recovered in an action of
tort ; and he shall moreover, on conviction thereof u])on indictment, be
adjudged guilty of peijury.
Adverse claim-
ant may be-
come a party.
1!. S. 109, § 17.
11 Mass. 488.
10 Met. ISO.
7 Cush. 483.
6 Gray, 49.
Proceediufjs in
such case.
K. S. 109, § IS.
Testimony,
how taken.
li. S. 109, § 19.
1839, 107, § 1.
PROCEEDINGS IN RELATION TO ADVERSE CLAIMANTS.
Sect. 15. If it appears that any goods, effbcts, or credits, in the
hands of a supposed trustee, are claimed by another person by force of
an assignment from the defendant or otherwise, the court may jiermit
such claimant to .appear and maintain liis right. If he docs not volun-
tarily appear, notice for that ]iur|)ose may be issued and served on him
iii"such manner as the court shall ilirect.
Sect. 16. If such claimant appears, ho may be admitted as a party
to the suit so far as resj)ects his title to the goods, cffi?cts, or credits, in
ciuestion, and may allege and prove any facts not stated nor denied by
the su])])Osed trustee ; and such allegations shall be tried and deter-
mined in the manner before provided.
Sect. 17. Ujion the trial of any question arising upon the addition.al
allegations of a party, any part of the testimony may be given by dejio-
sitions taken and reduced to writing in the usual form, and filed in the
case, or orally, as the court shall direct.
Chap. 142.] trustee process — trustees, for what chargeable, &c. 723
proceedings when suit is pexding agaixst tkl'stee.
Sect. 18. If during the pendency of an action the defendant is sum- Cnsoofattach-
moned as the trustee of the plaintiftj the fii-st suit may nevertheless pro- nlaJlaaii'laUyin
ceed SO far as to ascertain by a verdict, award, or otlierwise, wliat sum is suit-
due from the defemhint. The suit shall not be delayed on account of ? jiass. ho.
the trustee ])rocess, unless the court for good cause shown sees fit to
continue it for judgment until the termination of the trustee suit, or
until the .'ittachment therein is dissolved by the discharge of the trustee,
or by the satisfaction of the judgment, or otherwise.
Sect. 19. The court may, on a])plieation of the plaintiff in the Procoedinss in
tru.stee process, continue the other suit, on such terms as it deems just u.'^s.'wj, § 32.
and reasonable. If it is not so continued, and judgment is rendered
against the defendaiit, he shall not afterwards be adjudged a trustee on
account of the demand so recovered against him, so long as he is liable
to an execution on the judgment.
Sect. 20. If, before final iudsTmcnt is rendered in the first suit, the Same subject,
defendant in that suit is adjudged a trustee in the othej-, and pays there- ' '
on the money demanded in the first suit, or any part tliereoti the fact
shall be stated on the record of the first suit, and judgment therein shall
be rendered for the costs due to the plaintiff, and for such part of the
debt or damages as remains due and unpaid.
WHEN AND FOB WHAT TEUSTEES AEE CHARGEABLE, &C.
Sect. 21. When a person is summoned as trustee having goods. Liability as
effects, or credits, of the defendant intrusted or dei)osited in his hands i"'s.™on, §4.
or possession, such goods, efl'ects, and credits, shall be thereby attached .■^ JJ-'^^- .-?>■
and held to respond the final judgment in the suit, in like manner as 5 imcu! .'ioj!
goods or estate when attached by the ordinary process, except as here- jj p|ek ^tio''*'
inafter provided. 3 Jiet.wJi.
13 Met. 471. 4Cusll.3H. 7 Cush. 483,487. G Gray, 110,330. 7 Gray, 491. rj Jlct. 307.
Sect. 22. Debts, legacies, goods, effects, or credits, due from, or in of oxeoutors
the liands of, an executor or administrator as such may be so attached tors,
in his hands. ^iLl^^nf"'
10 Pick. 354. 20 Pick. 5r,3. 3 Met. 507. 2 Cusli. ill. 7 CukIu 40n. 2Gray, 2S1. 8 Mass! 240.'
Sect. 23. Any dividend of an estate of an insolvent debtor, if it is of assig^nees
not upon a claim for wages wliich would not have been attachable in isj"^.*
tlie hands of the orifrinal debtor, may after the dividend is declared be 'i '^'"i'';- 558-
so attached in the hands of the assignee.
Sect. 24. Any money or other thing due to the defendant may be Debt m.-iy be at-
attached as herein mentioned before it has become payable, if it is due is'jlli'yabio™'' '*
absolutely and without any contingency ; but the trustee shall not be }?,•/?• "r^L^'''
compelled to pay or deliver it before the time appointed by the con- ' "'^''
tract.
Sect. 25. If a person summoneil as trustee has in his jiossession Fraudulent cou-
goods, eftects, or credits, of the defendant, which he liolds by a convey- JSee!*"
ance or title that is void as to the creditors of the defendant, he may be ?j,^^-^g'^-'|j|''^'
adjudged a trustee, although the defendant could not have maintained sMass. iioo!
an action therefor against him. '~ *^^''*'- ^*'''
Sect. 26. Every trustee shall be allowed to retain or deduct out of Mutual de-
the goods, effects, and credits, in his hands, all demands against the prMp.-Ii''and^°
defendant of which he could have availed himself if he had not been ^T"';*'''^-
summoned as a trustee, whether by way of set-off on a trial, or by the i(!'Mass.'473. '
set-off of judgments or executions between himself .and the principal ; l-^?'*'- ^^^•
and he shall be liable for the balance only, after all mutual demands
between him and the principal are adjusted.
Sect. 27. In the demands mentioned in the precedins; section to be Certain de-
-,. ,, , i,T/»ni"in 1 m.auda exclua-
adjusted between the trustee and the defendant, there shall not be ed.
724
TRUSTEE PROCESS — EXECUTION, AND SCIRE FACIAS. [ChAP. 142.
E. S. 100, § 37.
Trustee not
chargeable if he
has paid over
before knowl-
edge of service.
E. S. lOil, § 5.
3 Pick. (>.i.
3 Met. .301.
5 Cush. M5.
nor for a cer-
tain sum due for
wages, &c.
1S42, 91.
185-, 200, § 2.
See Ch. UO, § 29.
If savings bank
charged as trus-
tee, and identity
of defendant
doubtful, plain-
tiff to give bond.
ISoO, 48.
7 Gray, 134.
"What demands
not attacliable.
E. S. lOlP, §30.
See Ch. US, §78.
3 Mass. 2S9.
5 Mass. 3iy.
7 Cush. 257.
f Mass. 259.
3 Mass. 33, 08.
3 Pick. 1, 05.
0 Pick. 120.
4 Jlct. 4SI).
12 Met. 12.
2 Mass. 94.
3 Mass. 121.
included on either side any claim for unliquidated damages for wrongs
or injuries.
Sect. 28. If after the service of process on the trustee, but before
he has knowledge thereof, he in good faith makes any payment, or be-
comes liable to a third person, by reason of the goods, effects, or credits,
in his hands, or has delivered the same to the defeftdant, or to any otlier
person entitled thereto, he shall be allowed therefor in the same manner
as if the jiaymcnt or delivery had been made, or the liability incurred,
before the serxice of the writ.
Sect. 29. When the wages for the personal labor and services of a
defendant are attached for a debt or demand other than for necessaries
furnished him or his family, and when a debt due for the services of the
wife or minor children of the defendant is attached, there shall be re-
served in tlie hands of the trustee a sum not exceeding twenty dollars,
which shall be exempt from such attachment.
Sect. 30. When a savings bank or an institution for savings is
charged as trustee, and in the ojjinion of the court there arises upon the
answer a doubt as to the identity of the defendant, the court may in its
discretion require the plaintiff to give bond with surety or sureties to
be ajiproved by the court, conditioned to save such bank or institution
harmless therefrom.
Sect. 31. No person shall be adjudged a trustee in either of the
cases following, viz. : —
First. By reason of having drawn, accepted, made, or indorsed, any
negotial^le bill, draft, note, or other security when either is payable on
time and is not overdue :
Second. By reason of any money or other thing received or collect-
ed by him as a sheriff or other officer by force of an execution or other
legal process in fivor of the defendant in the trustee process, although
the same has been previously demanded of him by the defendant:
Third. By reason of any money in his hands as a public officer, and
for which he is accountable to the defendant merely as such officer :
Fourth. By reason of any money or other thing due from him to
the defendant, unless it is at the time of the service of the writ on him
due absolutely and without depending on any contingency : nor
G Cush. 204. 7 Gray, 153. 13 Gray, 200.
Fifth. By reason of a delit due from him on a judgment, so long as
he is liable to an execution thereon.
Form of judg-
ment against
trustee.
R. S. 109, § 42.
21 Pick. 109.
Goods not de-
manded in 30
days may be at-
taclied again.
K. .S. 109, § 43.
1 Mass. 117.
6 Gray, 241.
or recovered
by defendant.
E. S. 109, §4 i.
or otherwise
delivered to of-
ficer on de-
mand.
E. S. 109, § 45.
6 Gray, 241.
JUDGMENT, EXECUTION, AND SCIRE FACIAS.
Sect. 32. When a person is adjudged tru-stec in the original suit,
it shall not be necessary to specify in the judgment the sum for which
he is chargeable; but if upon a writ of scire facias against him, it ap-
pears that he is chargeable as trustee, the sum shall be expressed in tlie
judgment.
Sect. 88. If, after a person is adjudged trustee, the goods, effects,
and credits, in his hand.s, are not demanded of liiin, by force of the
execution, witjiin thirty days after final judgment, tliey shall be lialilc to
another attachiiieiit, whether made before or after the judgment, in like
manner as if such jn'ior attachment had not been made.
Sect. 34. If there is no such second attacliment, the defend.int in
the suit may recover them, if not demanded as aforesaid within said
thirty days, in like manner as if they had not been attached.
Sect. 35. If no such second attachment is made of the same goods,
effects, and credits, and no action is brouglit therefor by the defendant,
and if they are not )iaid or delivered to him before they are demanded
of the trustee by the officer, the trustee shall be liable to pay and
deliver the same, when so demanded, although it should be after the
expiration of said thirty days.
Chap. 142.] tkdstee process — death op parties. 725
Sect. .36. If the trustee cannot be found in the state by the officer Demand on ab-
to whom the execution .is committed for service, a cojiy of the execu- u.^s.'iw'sm.
tion may be left at his dwelHng-house or last and usmil jilace of abode,
witli a notice to him indorsed thereon ami siiincd by the officer, signi-
fyini,' that he is required to \)aj and deliver, towards satisfying the ex-
ecution, the goods, efleets, and credits, for which he is liable; and this
shall be a sufficient demand for all the purposes expressed in the three
jirecoding sections.
Sect. 37. The judgment .against a trustee sh.all acquit and dis- .judgment
charge him from all demands by the defendant, or his executors or Si'Drot^-t*""
administrators, for all goods, effects, and credits, paid, delivered, or iiim, i-c.
accounted for, b}' the trustee, by force of such judgment. f'GTay"%i%')ij.
Sect. .38. If a person summoned as trustee is discharged, the judg- fnri,imnotto
ment sh.all be no bar to an action bi'ou<:rht against him bv the defendant ^ar dorundant.
for the s.ame demand. ^ " K.s.i(»,§te.
Sect. 39. If a person who is adjudged a trustee in the original suit scire/acias
does not pay over to the officer, uiion <lemand, <roods, effects, or credits, ajfainst trustee,
.sufficient to satisfy the execution, and if the execution is not otherwise k. s. iou°§§
satisfied, the plaintiff may sue out a writ of scire facias against all or a 4'(^„si, 400
separate writ against each of the trustees, from the court in which the acusii. asu.
judgment was rendered, to show cause why judgment and execution ''™5■-•
should not be awarded against him and his own goods and estate, for
the sum remaining unsatisfied on the judgment against the defendant.
Sect. 40. If a trustee duly served with the scire facias neglects to Proceedings
appear and answer, he shall be defaulted ; and if he was not examined Jiofaui? "^°"
in the original suit, judgment shall be rendered against him upon R. s. 169, §39.
such default, for the whole sum remaining unsatisfied on the judgment
against the defendant.
Sect. 41. If a trustee who is defaulted on the scire facias has been 8.ame subject.
examined in the original suit, judgment in the scire facias shall bo ren- ^' ^- i*'9>§'W-
dered upon the foots stated in that examination, or ]iroved in the trial
had thereon, for any part remaining in his hands, of the goods, effects,
or credits for which he was originally chargeable as a trustee, or for so
much thereof as then remains unsatisfied on the judgment against the
defendant.
Sect. 4"2. If the trustee appears and answers to the scire facias, upon cxami-
and if he had not been examined in the original suit, he shall be liable »;>*'"" "f '■'"b-
to be examined in the same manner as he might have been in that ns. loo, §41.
suit ; and if he had been examined in the original suit, the court may i jict. i-as. '
require or permit him to be examined anew in the suit on the scire 4L'"sh. 431.
facias. In either case, he shall be permitted to answer and prove any
matter that may be necessary or ]iroi>er for his defence in the suit on
the scire facias. Upon the whole matter appearing upon such exam-
ination and tri.al, the court shall render such judgment as law and jus-
tice require.
Sect. 43. No writ of scire facias shall be maintained against a -writoTscire/a-
l)erson adjudged trustee unless served upon him within two years after "f *vitbhi two
the rendition of judgment in the original suit ; except that if the years after
money or other thing is not jiayable when the judgment is rendered, M.|it7&°. ' '"^'
said writ may be maintained if sened within one year after payment i^,''''**'|.l-
, 1 - J L J i Gray, 345.
becomes clue.
death of parties.
Sect. 44. If a person summoned as trustee in hi.s own right dies Upon death of
before the judgment recovered by the jilaintiff is fully satisfied, the *™tor'''i'c° iia-
goods, eSects, and credits in his hands at the time of the attachment We.
shall remain bound thereby, and his executors or administrators shall •»"'^'S6''-
be liable therefor in like manner as if the writ had been originally
served on them.
61*
(26
TRUSTEE PROCESS — WHEN TRUSTEE HAS SPECIFIC GOODS. [ChAP. 142.
Proceedings
when trustee
dies before
judgment.
R. S. 109, § 04.
when c.xceu-
tor, &c., does
not appear.
11. S. 10'.l, § 05.
Scire facias
against execu-
tor, &c.
11. S. 109, § 00.
When trustee
dies after judg-
ment.
E. S. 109, § 07.
within thirty
days after judg-
ment.
K. S. 109, § OS.
Judgment
agjxinst execu-
tor, Ac, how
enforced.
K. S. 109, § 09.
Same subject.
K. S. 109, § ro.
Sect. 45. If lie dies before judgment in the original suit, his execu-
tor or administrator may appear volitiiturily, or- may be cited to apjjear,
as in other cases. The further proceedings shall then be conducted in
the same manner as if the executor or administrator had been origi-
nally summoned as a trustee, except tliat the examination of the de-
ceased, if .-iny is filed, shall haA'c the same effect as if he were living.
Sect. 40. If the executor or administrator does not appear, the
plaintiff, instead of suggesting the death of the trustee, may take judg-
ment against him by default or otherwise as if he were living, and
the executor or administrator shall ])ay on the execution the amount
which, he would have been liable to pay to the defendant, and shall be
thereby discharged for the amount so paid, in like manner as if the
executor or administrator had been himself adjudged trustee.
Sect. 47. If, in the case last mentioned, the executor or adminis-
trator does not voluntarily pay the amount in his hands, the jilaintiff
may proceed against him by a writ of scire facias, as if the judgment
in the first suit had been against him as trustee.
Sect. 48. If the person summoned as trustee dies afl:er judgment
in the original action, the executor or administrator may jjay on the
execution the amount which the deceased would have been liable to
pay if living, and lie shall be discharged from all further demands on
account thereof, in the manner before mentioned. If he refuses so to
do, the plaintiff nia^' proceed against liim by a writ of scire facias, in
the manner provided in the preceding section.
Sect. 49. If a person against whom execution issues as trustee is
not living at the expiration of thirty days .after final judgment in the
trustee suit, the demand to be made for the ]iurpose of hoMing the
attachment may be made of tlie executor or administrator of the de-
ceased person at any time within thirty days after liis apjiointment,
and shall have the same effect as if made within thirty davs after the
judgment.
Sect. 50. When .an executor or administrator is adjudged trustee
for or on .account of goods, effects, or credits in his hands or possession
merely as such executor or administrator, whether in a suit originally
commenced against him as trustee, or against the deceased testator or
intestate, and whether the judgment is in the original suit or on a writ
of scire facias, the execution shall not be served on his own goods or
estate, nor on his person, but he shall be liable for the .amount in his
hands, in like manner and to the same extent only as he would have
been to the defendant, if there had been no trustee process.
Sect. 51. If, after final juilgmeut against an executor or adminis-
trator for a certain sum due from liim as trustee, he neglects to pay the
same, the original jilaiutiff in the trustee process sliall have the same
remedy for recovering the amount, either upon a suggestion of waste
or by a suit on tlie administration lioud, as the defendant in tlie trustee
process would have had up(jn a ju<lgment recovered by himself for the
same demand against the executor or administrator.
Case of trustee
having spcciftc
goods, &c.
1{. S. 109, § -ii.
yCush.lsr.
11 Gray, 320.
Same subject.
U. .S. 109, § 2.3.
PEOCEEDINGS WHEN TRUSTEE HAS SPECIFIC GOODS.
Sect. 52. When a jierson is charged as trustee by reason of goods
or chattels, other than money, which he holds or is bound to deliver to
the defendant, he shall deliver the same, or as much thereof as m.ay be
necessary, to the officer who holds the execution ; and the goods shall
be sold by the officer, and the ]>roceeds apjilied and .accounted for in
the same manner as if they had been t.aken on an execution in com-
mon form.
Sect. 53. The v.alue of any goods so delivered shall be ascertained
and fixed, as between the trustee and defendant, iu like manner and
Chap. 142.] trustee process — costs. • 727
upon the s.ime principles as if they had been delivered to the de-
fendant. Upon the application of either party the court may, pending
the original suit or ujjon the scire facias, determine the value, and
m.ake any other order in relation to such goods and the deliverj' thereof
that may be necessary or proper to protect the rights of the trustee
and defendant.
Sect. 54. When a person summoned as trustee is bound by con- .Suit not to pre-
tract to deliver specific goods to the defendant at a certain time and j™* trastee de-
place withm the state, he shall not be compelled by reason of the imioss, &c.
trustee jirocess to deliver them at any other time or place; and he o'isi^a'ss^ii'o! ~**
ma}', notwithstanding such process, tender or deliver them to the per-
son entitled under the contract, at the time and ]ilace therein men-
tioned, unless he shall have been previously adjudged a trustee on
account thereof.
Skct. 5.5. When it ajjpears that such goods in the hands of a per- Cmsc of trustee
son summoned as trustee arc mortgaged or ])lcdged, or in any way }'i','""J'ort™ ""
liable for the iiayment of a debt to him, the attaching creditor may be u. .s*! ion, § as.
1 Met 17*'
allowed, under an order of the court for that jiurpose, to pay or tender ' ~'
the amount due to the trustee; and he shall thereupon deliver the
goods in the manner before provided to the othcer who hohls the
execution.
Sect. 56. If the goods in such case are held for any j)urpose other Same suiypct.
than to secure the jiayment of money, and if the contract, condition, or i'- s. log, § ao.
other thing, to be jiertbrmed, is such as can be performed by the attach-
ing creditor without damage to the other parties, tlie court may make
an order for the performance thereof by him. Upon such ])erformanee,
or a tender, the trustee shall deliver the goods in the manner before
jjrovided to the officer wlio holds the execution.
Sect. 57. All goods received bj' the officer under the two preceding sucii ^oods,
sections, .shall bo sold and disposed of in the same manner as if they Jjow disposed
had been taken on an execution in common form; except that from the K. S. 109, § 27.
proceeds of the sale the officer shall rej)ay to the attaching creditor the
amount ]>aid by him to the trustee for the redenqitiou of the goods, with
interest thereon, or shall indemnify the creditor for any other act or
thing by him done or performed pursuant to the order of the court for
the redenii)tion of the goods.
Sect. 68. Xothing contained in the preceding sections shall prevent may be sold
the trustee from selling the goods in his liands for the payment of the eJsJ'''5^?J'^''' *"
demand for which they are mortgaged, pledged, or otherwise liable, at K. s'. loii, § 28.
any time before the amount due to him is paid or tendered as before
mentioned, if such sale would be authorized as between him and the
defendant.
Sect. 59. If a trustee refuses or neglects to deliver any goods in his Trustee wiieu
hands when thereunto lawfully required by the officer who ser^-es the J]'"nvery''of°I!cii
execution, he shall, after deducting; the amount of any lien he has coods.
thereon, be liable to the plaintifi" in the action for the value thereof, to ' ' ^
be recovered as money is recovered when not paid on the first execution
pursuant to the judgment against a trustee.
costs.
Sect. 60. If a person summoned as trustee appears and answers costs and ex-
upon oath as herein ])rovided, lie shall be allowed his costs for travel i>™se8 of trus-
and term fees, and such further sum for counsel fees and other necessary R. s. ion, § 49.
expenses as the court may deem reasonable. But if a trial is had between ],, pickr'i.M. '
the plaintifi' and alleged trustee upon any issue of fact, the court may i- Met. 3ur.
award costs to either party as justice and equity require.
Sect. 61. If he is adjudged trustee, his costs and charges sh.all be ^ju'^'os/J'oy't
deducted and retained out of the goods, effects, and credits, in his hands, of effects in bis
728
TRUSTEE PROCESS — COSTS.
[Chap. 142.
hands, and re-
cover balance
of plaintiff.
K. S. 109, § 50.
1845, 188.
10 Met. 5S0.
12 Cush. i:il.
Costs when
trustee is dis-
charged.
E. S. 109, §51.
3 Cush. 341.
wlien trustee
is out of state.
K. .S. 109, § 52.
10 Mass. 25.
when trustee
does not dwell
or have place
of business iu
county.
E. S. 109, § 53.
1S52, 287.
when trustee
liable to pay.
E. S. 109, § 54.
1852, .312, § 81.
1852, 287.
proceedings
in such case.
E. S. 109, § 55.
when several
trustees are lia-
ble for.
E. S. 109, § 50.
against trus-
tee on scire fa-
cias.
K. S. 109, § 57.
same subject.
E. S. 109, § 5S.
same subject.
E. S. 109, § 59.
1852, 312, §§ 58,
81.
execution for,
against trustee.
E. S. 109, § m.
1852, 312, § 81.
on scire fa^
cias against
and he shall be chargcnhle for the balance only to be paid on the execu-
tion. If such goods, efieets, and credits, are not of sufficient value to
discharge the costs taxed in his favor, he shall have judgment and execu-
tion against the plaintiff for the balance of such costs, after deducting
the sum disclosed, in the same manner as if he had been discharged.
Sect. 62. If he is discharged for any cause, his costs and charges
shall be paid by the plaintiff, and he shall have judgment and execution
therefor.
Sect. 63. If the person summoned as trustee is out of the state at
the time of the service of the original writ on him, and appears and
answers at the first term after his return, lie shall Lie allowed for liis costs
and charges in the same manner as if he had appeared at the term when
the action was entered.
Sect. 64. If the person so summoned does not dwell or have a usual
place of business in the county in which the writ is returnable, he shall
in all cases be allowed his costs and charges, which shall be retained or
recovered as before provided, whether lie ajipears at the first or at any
other term, and whether in the original suit or upon a scire facias
against him.
Sect. 65. If a person summoned as trustee who dwells or has his
usual place of business in the county in which the writ is returnable,
without any reason which the court deems sufficient, neglects to apjiear
and answer within the time herein provided, he shall be liable if the
plaintiff recovers judgment in the suit, and his costs are not otherwise
recovered and received by him, for all costs for the plaintiff's travel and
terra fees, until he appeal's.
Sect. 66. If he does not pay the amount when demanded by the
officer who serves the execution, the officer shall state the fact in his
return, and if it also ajjpears by the return that the costs have not been
paid, the court shall award n new execution against him for the costs.
Sect. 67. If there are several persons summoned as trustees and liable
for costs under the provisions of the two preceding sections, the second
execution shall be awarded against them jointly, and if either pays more
than his proportion, the others shall be bound to contribute equally to
indemnify him for the e.xccss.
Sect. 68. If a person summoned as trustee, who dwells or has his
usual jilace of business in the county in which the writ is returnable, is
defaulted in the original suit, and a writ of scire facias issues against
him, he shall be liable for all costs on the scire facias, to be paid out of
his own goods and estate, whether he is finally adjudged a trustee or
not, except as hereinaf"ter ]irovided.
Sect. 69. If it apjiears tliat the person so defaulted had in his hands
goods, effects, or credits, liable to the attachment, and that he has paid
and delivered the whole amount thereof on the execution issued on the
original judgment, he sliall not be liable for costs on the scire facias, nor
shall he be entitled to recover costs.
Sect. 70. If the person so defaulted was prevented from a]ipearing
in the original suit by his absence from the state, or for any other reason
which the court deems sufficient, he shall not be liable for costs on the
scire facias, but the court may, if it appears reasonable, allow him his
costs and charges for travel and term fees, counsel fees and other neces-
sary expenses, to be retained or recovered in like manner as if he had
appeared in the original suit.
Sect. 71. If a person summoned as trustee is held liable to pay from
his own estate the costs on the scire facias as before provided, and if he
is at the same time liable for the costs for the plaintiff's travel ami term
fees in the original suit, one execution shall be issued against him for
both sums.
Sect. 72. When there are several trustees liable to the writ of scire
Chap. 142.] trustee process — before justices of the peace, &c. 729
facias, if the plaintiff, without reasons which the court deems sufficient, several trus-
sues out two or more writs, when he might have joined all tlie trustees {;f|\ loo, §gi.
in one WTit, he sliall recover no more costs than if he liad sued out only
one writ, and the court may apportion the costs equally and pro2:>ortion-
ally among all the trustees liable therefor.
Sect. 73. When an adverse claimant is admitted as a party, the costs for or
court may award costs between him and the attaching creditor and sup- "iSlJJant!''^'"^^^
posed trustee, or either of them, as justice and equity require. li. s. loo, §21.
Sect. 74. If the wages for the personal labor and services of a per- not for pi.-un-
son are attached by the trustee process on a claim other than for neces- {|,rtie("'^c.***^
saries, and the iilaintiff does not recover a sum amounting to five dollars isar, .>oo, § i.
1 i\ . 1 1 1 ^ V -4. Sec Oh. 'JO, § 29.
as debt, he shall recover no costs 01 suit.
TRUSTEE PROCESS BEFORE JUSTICES OF THE PEACE, &C.
Sect. 75. All personal actions but those excepted in section one, Tnistce process
which arc ^rithin the jurisdiction of, and may be brought by the t)rdinary to!,".", £-°.!''"^
]irocess before, a justice of the jjeace, or police court, may be so brought J'.- .S;io'.s§§n,
by the trustee ]>rocess.
Sect. 76. The foregoing provisions of this chapter shall, as far as Proceedinors.
applicable and except as is hereinafter provided, apply to such suits i'- *■ io'J>s.3.
before police courts and justices of the peace.
Sect. 77. When a person is summoned as trustee who is liable to Writ may nm
be charged as such, and the defendant resides in this state, but in a iu\tTta'incas'c's!
county other than that in which the writ is returnable, the writ may j'S'il5'|.f
run into any county, and be served on the defendant fourteen days at is5.i'28r!
least before its return day, in like manner as if issued from the superior ^^'■'' '*~' 5 1-
court.
Sect. 78. No person shall be held to answer as a trustee in an action Trustee not lia-
before a justice of the peace, or police court, in any other county than ^'^^ ""' "' ™'"'-
that in which he dwells or has his usual jjlace of business. If he is out 'j,-..f-„i??'§''2-
of the county at the time of the service of the original writ on him, and isaiij isij § 1.
does not return before the final judgment in the suit, he shall not be
chargeable as trustee.
Sect. 79. If the person summoned as trustee appears either in per- how may ap-
son or by attorney and declares in writing that he had not in his hands swJr™ ""
or possession, at the time when the writ was sen'ed on him, any iroods, ^\f- i09;,§ii-
effects, or credits, of the defendant, and submits himself thcreujion to ijinssiss!
examination upon his oath, and if the plaintiff declines to examine him, iVk-k'^^iiif*'
or if u|)on such examination his declaration ajipears to bo true, he shall s Kck. 07.
be discharged. 9 Cush. 530. 10 Cusii. 104. * ^"^''" ^'*'
Sect. 80. Every such declaration may be signed by attornev, and Same subject,
if the plaintiff proceeds to examine the supposed trustee thereupon, he t, i.jJi;. 25. "
shall propose interrogatories in writing, which shall be answered in
writing and signed and sworn to by the supjiosed trustee.
Sect. 81. If a person so summoned admits that he has in his hands .Same subject,
any goods, effects, or credits, of the defendant, or wishes to refer that ^'' **■ "^■'' ^ ^'"
question to the justice or court upon the facts, he may make a written
declaration on oath of such ficts as are material. The plaintiff may then
examine him on written interrogatories, the answers to which shall be
sworn to, and in every case the declaration, interrogatories, and answers,
shall be filed with the justice or court.
Sect. 82. When a person summoned as a trustee is entitled to costs, costs for trus-
his travel and attendance shall be taxed at the same rate as if he were ancKXr ex-"
a defendant, and he shall be allowed such further sum for his conn- penses.
sel fee and other necessary expenses as the justice or court deems rea- ''*'' '^' "
sonable.
Sect. 83. When it becomes necessary to sue out a writ of scire Justice may is-
j. . . ^ 1 ^ *» •.. T - 1 1 .1 sue sorc/oCKM,
facias agamst a person summoned as trustee, it may be issued by the aithoush, &c.
92
30
REPLEVIN OF CATTLE DISTRALVED.
[Chap. 143.
E. s. 109, § r5. justice of the peace by whom, or the poUce court bj^ whieli, the judgment
1859; 190." was rendered, although the amount of the debt and costs therein exceeds
one hundred dollars, or if issued by the police court of the city of Bos-
ton, thi-ee hundred dollars.
CHAPTER 143,
OF REPLEVIN OF PROPERTY.
replevin of cattle distrained.
Section
1. Writ of replevin for beasts distrained or
impounded.
2. Proceeding's tliereon.
3. Plaintiflf to give bond.
4. in double the value of property as ap-
praised.
5. Return of writ, with bond, A-c.
C. Judgment for defend:mt, how rendered.
7. Beasts returned, how disposed of.
8. Judgment for plaintiff.
9. Certain cases to be removed to superior
court, &c.
REPLEVIN OF OTHER PROPERTY.
10. Replevin of goods.
11. Writ, Iiow sued out, &c.
Section
rj. riaintiif to give bond.
l.'i. .Judgment for defendant.
H. Damages for delaying execution.
15, l(i. Sums recovered on replevin bond, &c.,
how disposed of.
17. Judgment for plaintiff'.
GENERAL PROVISIONS.
18. Goods attached lield liable after return.
19. Danuagos, by wliom assessed.
20. Form of writs of return and reprisal.
21. These proceedings not to bar action on
bond, .tc.
22. Writ of reprisal, when to bo issued.
23. Limitation of suit agaiust surety on re-
plevin bond.
Writ of replev-
in for beasts
distrained or
impounded,
irsfl, 20.
R. S. 11.3, § ir.
2 Cush. SS.
7 Cusll. 355.
See Cli. 25,
§§21-38.
Proceedings
thereon.
K. S. 113, § 18.
Plaintiff to give
bond.
R. S. 113, § 19.
1 Jlct. 508.
10 Met. 291.
12 3Iet. 510.
8 Cush. 550.
S Gray, 27.
0 Gray, 3(i3.
in double the
value of prop-
erty as .apprais-
ed.
R. S. 113, §20.
Return of writ,
witli bond, .tc.
R. S. 113, §21.
EEPLEVIIf OP CATTLE DISTRAIXED.
Section^ 1. Any person whose beasts are distrained or impounded,
in order to recover a penalty or forfeiture suji]iosed to have been incurred
by their going at large, or to obtain satisfaction for damages alleged to
have been done by tliem, may maintain a writ of replevin therefor, to be
sued out and prosecuted before a justice of the peace, or police court, for
the county, in the same form substantially as heretofore established and
vised in such cases.
Sect. "2. The writ shall be sued out, served, returned, and the cause
.shall be heard and determined, in like manner as is provided in other
civil actions before a justice of the peace, or police court, in all jiarticu-
lars in which a dift'crent course is not preserilied.
Sect. 3. The writ shall not bo served, unless the plaintiff or some
one in his behalf executes and delivers to the officer a bond to the
defeiubint with sufficient sureties, to be a]iprovecl by the officer, in a
])enalty double the value of the property to bo re])levied, with condition
to prosecute the replevin to final judgment and to ])ay such chimagcs
and costs as the defendant shall recover against him, and also to return
the pro])erty in case such shall be the final judgment.
Sect. 4. The \^'rit shall require that the bond shall be given in
double the value of the property to be replevied, but .shall not cxiiress
the sum or amount for which it shall be given. When the jiartics do
not agree as to the value of the jjroperty, it shall be ascertained by three
disinterested and discreet persons appointed and sworn by the officer,
and the penalty of the bond shall be double the value ascertained by
such persons, or any two of them.
Sect. 5. The officer shall return such bond with the writ, to be left
with the justice or court for the use of the detend.-int ; he shall .also
include in his return, indorsed on the writ, a certificate of the appoint-
ment of the three appraisers, the appraisal and the expenses thereof.
Chap. 143.] replevin of other property. 731
Sect. 6. If it appears upon the nonsuit of the plaintiff, or upon a .Tmipmont for
trial or otherwise, that the beasts were lawfully taken or clistrainetl, the n'S™!'^*"^
defendant shall have judgment for the sum found to be due Ironi the K. .s. ii:;, §sa.
plaintifi" for the penalty or forfeiture, or for tlie damages for which the
beasts wore ini])ounded, together with all the legal fees, costs, charges,
and expenses, incurred by reason of the distress, and also the costs of
the action of rejilevin ; or instead thereof a judgment, for a return of the
beasts to be held by the defendant irrejdeviablc by the plaintiff, and for
his damages for the taking thereof by the replevin, and for his costs.
Sect. 7. Wlien the beasts are returned to the defendant pursuant to Beasts return-
such judgment,, they shall be held and disposed of in like manner as if posetrof!''*
they had'not been replevied. if- S- ni §23.
Sect. 8. If it appears u])on the default of the defendant, or upon a .Tiuinment for
trial or otherwise, tliat the beasts were taken or distrained without an)- 'j'."Is'.'u:'j « 24.
suHicient or justifiable cause, the jdaintiff shall have judgment for his
damages caused by the unjust taking and detaining of the beasts, and
for his costs of the suit.
Sect. 9. When it appears that the sum demanded for the )ienalty. Certain cases to
forfeiture, or damages, exceeds the sum of one liundred dollars, or tliat supcriOT court,
the property of the beasts is in question, and that their value exceeds '*;J-."-'' §-"•
one hundred dollars, or that the title to real estate is concerned or isou," 111a!
brought in question, the case shall at the request of either party be trans-
ferred to the su])erior court, and be there disposed of in like manner as
is provided in chaiiter one hundred and twenty, with respect to actions
brought before a justice of the peace, in whicli the title to real estate is
concerned or brought in question.
eepi.etix of other property.
Sect. 10. When any goods exceeding in value twenty dollars, are Replevin of
unlawfully taken or detained from the owner or person entitled to the T°'s.'"ii:i, §27.
possession, or when any goods of that value attached on mesne jirocess ' ''"fj"!' •™-
or taken on execution are claimed by a person other than the defendant ,•; urceni! im".
in the suit in which they arc so attached or taken, such owner or other t-HV'"'"-*!!''
person may cause tliem to be rej)levied. niMasp. 147.
3 lick. 205. 9 Met. 440. 2 Cusll. SS. 3 Cusll. 201. '^ -^'"'*'*- "'"•
Sect. 11. When the pronertv allecred to be detained does not exceed Writ, how suoti
in value one hundred dollars, the wi-it may be sued out from, and i^^sil, 211!
returnable to, a justice of the peace, or police court, for the county in };"■ |^- ■,".';. ^?kf,
which the goods are detained ; and in all cases the writ may be sued out is52,'3i4,'§ 1. '
of the sujierior court, and shall in such case be returnable to the same J'^jJ'^5'B"'i53
court for the county in which the goods are detained. It shall be sub- n Ji.asa. 3.
stantially in the form heretofore established and used, and in all particu- I Metiaw!
lars in which a different course is not iirescribed, shall be sued out, 'o?'"^*- -"•"•
served, and returned, like other writs in civil actions. s Cush'. sso!
Sect. 12. The officer, before serving the writ, shall take from the n.iintifr to give
plaintiff, or some one in his beh.alf, a bond to the defendant, with suf- i?"'.'] 1.1, 52s
fieient sureties in double the value of the goods to be replevied, con- iwi), i%.'_
ditioned like the bond herein before described to be taken upon a writ joilss. 2S2.
of re]dcvin for beasts distrained or impounded ; and the officer shall J^j'^J'*'!,'.,'"^-
proceed in the aiiju-aisal of the goods and the return of the writ, in the 10 Met. 'jiii
manner provided with respect to such action for beasts distrained or 5Qr„l!;§^''
imiiounded ; excejjt that when the writ is returnable to the superior
court the bond shall be left with the clerk of the court for the use of
the defendant.
Sect. 13. If it apjicars upon the nonsuit of the plaintiff, or upon a .Tudgmeut for
trial or otherwise, tliat the delendant is entitled to a return of the goods, 'k.*s! u's' § 30.
he shall lia\e jiulgment therefor with damages for the taking by the
replevin, and his costs.
732
REPLEVIN — GENERAL PROVISIONS. [ChAP. 143.
Damagfes for
delaying execu-
tion.
K. S. 113, §31.
4 Mass. (>14.
12 Mass. 400.
11 Piclj. 223.
Sums recovered
on replevin
bond, &c., how
disposed of.
J:. S. 113, § 32.
.Same subject.
K. S. 113, §33.
IWr, 153.
.Tudgineut for
plaintiff.
K. S. 113, § 34.
Sect. 14. If the goods when ro])levied were taken on execution, or
if tliey were then attached, and judgment is afterwards rendered for
the attaching creditor, and if in either case the service of the execution
is delayed by means of tlie repkn-in, the damajjes to be as.sessed for the
defendant, in case of judgment for a return, shall not be less than at
the rate of twelve per cent, a year, on the value of the goods, for so long
as the service of the execution is so delayed.
Sect. 15. All sums recovered in an action of replevin by an officer
for or on account of goods attached or taken on execution by him, or re-
covered in an action upon the bond given upon the rejilevin of such
goods, shall be applied and disposed of, as far as they will go, in the
following manner: — ■
First. To pay tlio lawful fees and charges of the officer, the reason-
able expenses of the action of replevin, and the action on the bond, so
far as they are not reimbursed by the costs recovered :
Second. To pay to the creditor at whose suit the goods were at-
tached, or taken on execution, the sum recovered by him in that suit, or
as much thereof as remains unpaid, with interest therefor at tlie rate of
twelve per cent, a year, so long as the money has been withheld from
the creditor, or the service of his execution delayed, by reason of the
replevin : and
Third. If the attaching creditor in such case does not recover judg-
ment in the suit in which the attachment was made, or if any balance
remains of the money so recovered by the officer after paying what is
due to the creditor, the same shall be applied and dis])osed of in the
same manner as would and ought to have been done with the sur|ilus,
if any, of the proceeds of sale, in case the same goods had been sold on
execution.
Sect. 16. All sums received by such creditor from the proceeds of
the sale of goods attached or taken on execution, and afterwards re-
turned, or received for the value of any goods not returned, or recov-
ered from the officer for the insufficiency of the sureties in the bond,
shall be applied towards the discharge of the judgment recovered by
the creditor; and all sums received as interest or damages for the delay
of his execution, shall be a])plied, one half to the sole use of the creditor,
and the other half in discharge of the judgment.
Sect. 17. If it appears upon defiuilt or otherwise that the goods
were unlawfully taken or attached, or unlawfully detained, by tlie defend-
ant, the plaintiff shall have judgment for his damages caused thereby,
and for his costs of the suit.
Goods attached
held liable after
return.
K. S. 113, § 30.
I)ama2:ea, by
whom assessed.
1!. S. U.!, §35.
1>5.', 314, §2.
Form of writs
GENERAL rROYISIOXS.
Sect. 18. If the goods which are replevied had been attached, they
shall, in case of judgment for a return, be held liable to the attachment
until final judgment in the suit in which they were attached, and for
thirty days thereafter, in order to their being taken on execution. If
such final judgment is rendered before the return of the goods, or if
the goods when replevied were seized and held on execution, they shall
be held subject to the same attachment or seizure for thirty days after
the return, in order that the execution may be served thereon, or the
service thereof completed, in like manner as it might have been if the
goods had not been replevied.
Sect. 19. The damages in rejilevin, whether for the plaintiff or for
the defendant, shall be assessed by the jury by which the cause is tried,
if there is a trial by jury: otherwise they shall be assessed u]>on an in-
quiry by the court or justice, or by a jury empanelled for that puri)ose,
as damages are assessed in other civil actions.
Sect. 20. The writ of return in all actions of replevin shall be
Chap. 144.]
HABEAS CORPUS.
733
substantially in the same form that has lieen heretofore established and
used in like cases, and the writ of reprisal shall bo substantially in the
same form with the writ heretofore called a writ of witliernam.
Sect. '21. The foregoinu' provisions shall not ]irecluile the defendant
fi-om his remedy on the rejilevin bond, or against the officer for the insuf-
ficiency of the sureties in the bond, to recover the value of tlie goods
together with the loss or damage caused by the replevin, notwithstand-
ing he has endeavored to recover the same by the writs of return and
of re])risal, as before provided.
Sect. '22. If the ofKcerto whom the writ of return is committed cannot
find the beasts or other goods that were re])levied, so as to deliver them
to the defendant, he shall make a return of that tact upon the writ of
return ; and the defendant shall upon motion be entitled to a writ of
reprisal, to take the beasts or goods of the ]ilaintiff and deliver them to
the defendant, to be held and disposed of according to law.
Sect. 23. Xo action shall be maintained against any jierson as surety
in a rejilevin bond, unless the writ is served on him witliin one year
after the final judgment in the action of rejilevin; or if the action is not
entered, within one year after the end of the term at which the action
of rejilevin ought to have been entered.
of rotiirn and
reprisal,
irs'.i, 20.
K. S. 113, § 38.
Tlicse proceed-
ing's not To bar
action on bond,
.tc.
1!. S. 113, §39.
8 Met. 205.
Writ of repri-
sal, wlicu to be
issued.
K. S. 113,537.
Limitation of
suit a^.ainst
surety ou re-
plevin bond.
1{. S. 113, §40.
12 Mass. 2?0.
H Mass. «3.
CHAPTER 144.
OF HABEAS CORPUS, PERSONAL REPLEVIN, AND PERSONAL LIBERTY.
Sec
1.
2.
3.
4,
5.
6.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
2fi.
27.
28.
29.
HABEAS CORPUS.
TIOX
Writ oTJtaheas corpus.
in what cases not issuable as of right.
by whom to bo issued.
applii',ition therefor, how made.
to be issued and returned forthwith.
form of in certain cases.
how signed and served.
Officor, &c., how to be named or described.
Party, how to be named or described.
Costs of service to be advanced when party
is in legal custody.
AVrit, when to be returned.
Substance of return.
Return to be sijjned, &c.
Party to be produced with writ.
Proceedings when party is sick, &c.
"Writ, how returned and proceeded on in
certiiin cases.
Examination to proceed without delay.
Mode of examination aud trial.
Trial by jury on demand of either party, in
case of fugitive from service.
Summoning, &c., of jurors in such case.
Claimant to state in writing facts upon
which he relies. Burden of proof and rules
of evidence.
Notice, when to be given to other persons.
when to be given to attorney-general.
Custody of party, pending examination.
Party, when and how to be bailed.
how, when committed on mesne process.
when to be remanded.
when to be disebarged.
wlion discharged, not to be imprisoned
again, unless, &c.
Habeas corpus and bail when person is
committed iu criminal case, &c.
62
Section
31. S. J. C, &c., may issue ^vrits of luibeas cor-
pus in other cases, Ac.
32. Any court may issue writs of habeas cor-
pttx in certain cases,
33. Penalty ou officer refusing copy of war-
rant.
34. Proceedings against one refusing to obey
writ.
35. Proceedings against sheriff, &c., in such
case.
3fl. New^ precept to issue to another officer, &c.
37. Penalty for refusing.
3S. Persons disobeying, &c., writ, liable as for
contempt.
39. Penalty for removing or concealing pris-
oner.
40. Penalties not to bar action by p.arty.
41. Superior court not to discharge person
held, &c., by S. J. C.
PERSONAL REPLEVIN.
42. Writ of personal replevin, when to issue as
of right.
43. issuing and return thereof.
44. by whom served.
■io. form of.
40. shall not deliver from restraint, unlesa
bond given, &c.
47. Officer responsible for sureties.
45. Plaintiff to recover cost, if discharged.
4CI. Defendant when to recover costs, &c.
50. When defendant to have judgment for re-
delivery of phiintiff.
51. Capias shall is<u(^ to take defendant in cer-
tain cases.
52. Defendant may deny the return, Szc.
53. if guilty of secreting, to be committed to
jail, &.C.
734
HABEAS CORPUS — ISSUING THE WRIT, &c. [ChAP. 144.
SECTrox
54. Proceedings when plaintiiTs body is pro-
duced by defendant, after return of secre-
tion, &c.
55. Either party may appeal to S. J. C.
5l>. Writ of personal replevin may be sued out,
&c., in behalf of plaintiff, without express
authority.
57. Description of parties if names are un-
known.
rURSO.V.VL LIBERTY.
58. Governor to appoint commissioners in each
county to defend fugitives. Attorneys may
act as counsel.
59. Commissioners to be paid by common-
wealth.
60. Persons holding office under this state not
to issue warrants to arrest lugitives, &c.
SECTION
lil. State jails not to be used for detention of
persons claimed as fugitives, &c.
02. Punishment and dam.ages for removing,
&c., or coming here with intention to re-
move, persons not held to service or labor.
03. Penalty on sheriiTs, &c., arresting fugi-
tives from labor.
04. on members of militia for acting in seiz-
ure of fugitives from service.
05. not to apply to acts of military obedi-
ence, &c.
00. Preceding sections not to apply to fugitives
from justice.
07. United States judicial ofhcers, &c., not to
hold office under laws of this state, except,
&c. Power of justice of the peace, while
U. S. commissioner.
Writ of habeas
corpu.i.
Const, ch. 0,
art. 7.
1£. S. 111,§1.
lS5o, 4S9, §§ 2,
2 Mas3. 553.
in what cases
not issuable us
of right.
U. S. in, § 2.
2 Pick. 172.
2 Gray, -lUli.
by whom to
be issued.
K. S. Ill,
§§ 7, 8-
1S55, 4S0, § 3.
19 Pick. 330.
2 Gray, 40ii.
application
therefor, how
made.
U.S. Ill, §3.
to be issued
and returned
forthwith.
1>I, 72.
K. S. Ill, §4.
HABEAS CORPUS.
Section 1. Every person imprisoned or restrained of liis liberty,
except in the cases mentioned in the following section, may, as of right
and of course, jirosecute a writ of /mImms corpus, according to the pro-
visions of this cha]5ter, to obtain relief from such imprisonment or re-
straint, if it proves to be unlawful.
0 Mass. 273. 11 Mass. 03, 07, 8:3. 10 Pick. 434. 7 Cush. J^.
Sect. 2. The following persons shall not be entitled, as of right, to
demand and prosecute said writ : —
First. Persons committed for treason or felony, or on suspicion
thereof, or as accessories before the fact to a felony, when the cause is
])lainly and specially expressed in the warrant of commitment :
Second. Persons convicted, or in execution upon legal process, civil
or criminal :
Tliird. Persons committed on mesne process in any civil action on
which they were liable to be arrested and imprisoned, unless when ex-
cessive and unreasonable bail is required.
Sect. 3. The writ may be issued by the supreme judicial court, su-
perior court, ]irobate court, or jiolice court, or by a judge of eitlier of
said courts, and by any justice of the peace if no magistrate above
named is known to him to be within five miles of the place where the
])arty is imprisoned or restrained. It may be issued by either of said
judges or justices, whether the place of imprisonment is within or with-
out the county for which he is appointed.
Sect. 4. Application for the writ shall be made to the court or
magistrate autliorized to issue the same, by complaint in writing, signed
by the party for whose relief it is intended, or by some person in his
behalf, setting forth, —
First. The person by whom, and the ]ilace wlicre, the party is imjiris-
oned or restrained, naming the prisoner and the ]ierson detaining hiiu
if their names are known, and describing them if they are not known :
Second. The cause or jtretence of such imprisonment or restraint,
according to the knowledge and belief of the person ajiplying: and.
Third. If tlio imprisonment or restraint is by virtue of a warrant ov
other process, a copy thereof shall be annexed, unless it is made to
appear that such co])y has been demamled and refused, or that by some
sufficient reason a demand therefor could not be made.
The facts set forth in the complaint shall be verified by the oath of
the person making the aj)i)lication, or some other credible witness.
Sect. o. The court or magistrate to whom the comi>laint is made,
shall without delay award and issue a writ of habeas corpus, substan-
tially in the form heretofore established and nsed in this state, returna-
ble forthwith, either before the supreme judicial court, superior court, or
Chap. 144.] habeas corpus — return of writ. 735
a justice of either of said courts, in term time or vacation, and whether irm, 4S0, § s.
the court is in session or not, and at such phiee as shall be designated in ''^'•'' -'■"•§ i-
tlie writ.
Sect. 6. In cases of imprisonment or restraint by a person not a writ, form of in
sheriff, deputy-sheriff, coroner, or jailer, of this state, the writ shall be in e'^"iij"§''|'
the following form : — 1859, 29i,'§2.
Commonwealth of Massachusetts,
[seal.] To the sheriffs of our several counties, and their respective deputies,
Greeting.
AVe command you, that the body of of by of , imprisoned
and restrained of his liberty, as it is said, you take and have before a justice of
our supreme judicial court, (or superior court as the case may be,) at , imme-
diately after receipt of this writ, to do and receive what our said justice shall then and
there consider concerning him in this behalf ; and summon said , then and there
to appear before our said justice, to show the cause of the taking and detaining of said
, and have you there this writ with your doings thereon. Witness at
, this day of in the year
Sect. 7. When the writ is issued by the court in session, it shall be how sig^ied
signed by the clerk, otherwise by the magistrate issuing the same, and i{'.'s!'i"i^'«'6.
it may in either case be served in any county, by a sheriff or deputy-
sheriff of the same or any other county.
Sect. 8. The person having the custody of the prisoner may be Officer, &c.,
designated by his name of office, or his own name, or if such names are n°,"c'°OT de-
unknown or uncertain, he may be described by an assumed appellation, scribed,
and any one upon whom the writ is served shall be deemed the person ' *'
intended.
Sect. 9. The person to be produced shall be designated by his Party, how to
name, if known, and if that is unknown or uncertain, he m.ay be de- sernwT'' ""^ ''""
scribed in any other way so as to make known who is intended. if. s. lii, § 11.
Sect. 10. If the party is confined in a common jail, or in the custody Costs of
of a civil officer, the court or magistrate granting the writ shall certify wiu'-npaVty'is
thereon tlio sum to be paid for the expense of liringing him from the i" icgni custo-
place of imprisonment, and the officer shall not be bound to obey it li.'s. in, § it.>.
unless that sum is paid or tendered to him.
Sect. 11. Any person to whom the writ is directed shall receive it. Writ, when to
and tipon jiayment or tender of the charges, if any, <lemandable for the jj' s'in"'K'i3
execution of it, shall make due return thereof within live days after
receiving it.
Sect. 12. The person in wliose custody the prisoner is found shall Suiistancc of re-
state in writing to tiie court or justice before whom the writ is return- i".™'. m, §h.
able, iilainly and unequivocally, —
First. Whether he has or has not the party in his custody or power,
or under restraint :
Second. If he has the party in his custody or ])owcr, or under re-
straint, the authority at large, and tlie true and whole cause of such
imiirisoniuent or restraint, with .1 co])y of the writ, warrant, or other
jirocess, if any, upon which the party is detained: and,
Tliird. If he has had the party in his custody or power, or under
restraint, and has transferred snch custody or restraint to another, par-
ticularly to whom, at what time, for what cause, and Ity wliat authority,
such transfer was made.
Sect. 13. The return or statement shall be signed by the person Kotm-ntobe
making it, and shall bo sworn to by him, unless he is a sworn public i|°'s"lif "k u
officer and makes tlie return in his official capacity.
Sect. 14. The person making the return or statement shall at the Party to be pro-
same time bring the body of the part}', if in his custody or power, or wlit.^ "'"*
under his restraint, according to the command of the writ, unless pre- i*- S- n'' § 'O-
vented by the sickness or infirmity of the party.
Sect. 15. When from the sickness or infirmity of the party he can- Proceoding-s
not without danger be brought to the place appointed for the return of sick, &c. ^ '^
service
iiiccd
736
HABEAS CORPUS — TRIAL.
[Chap. 144.
R. s. iii,§ir
Writ, how re-
turned and pro-
ceeded on in
certain cases.
U.S. Ill, §9.
Examination to
proceed with-
out delav.
K. S. Ill, § IS
Mode of cxam-
inatiou and
trial.
It. S. Ill, §21.
TrliU by jury on
demand of
either party, in
case of fu<jitive
from service.
1S33, 4S9, §-1.
.See § (i(i.
SeoCh. lr2,§15.
Summoning,
&c., of jurors.
1855, 4«l, § 6.
See §00.
Claimant to
state iu writings
facts upon
wliicli lie relies.
liurden of proof
and rules of evi-
dence.
1855, 489, §0.
See § 00.
the writ, that fact sh.ill be stated in the return ; and if it is ])roved to
the satisfaction of the judge, he may proceed to the jail or other place
■where the i)arty is confined and there make his e.xaniination ; or he may
adjourn the same to another time, or make such other order in the case
as layv and justice require.
Sect. 1(3. If the court to which the writ is ivtuniable is adjourned
before it is returned, the return shall be made before any one of the
justices of the court; and if the writ is in any case returned before one
judge at a time when the court is in session, he may adjourn the case
into the court, to be there lieard and determined in like manner as if
the writ had been returned into court.
Sect. 17. When the writ is returned, the court or judge shall with-
out delay ]iroceed to examine the causes of tlie imprisonment or re-
straint ; but the examination may be adjourned from time to time as
circumstances require.
Sect. 18. The ]iarty imprisoned or restrained may deny any of the
facts set forth in the return or statement, and may allege any other
facts that maybe imiterial in the case; and the court or judge shall,
except as provided in the following section, jwocecd in a summary way
to examine the causes of the imju'isonmeiit or restraint, hear the evidence
produced by any person interested or authorized to appear both in su|)-
port of such imprisonment or restraint and against it, and thereupon to
dis|:>ose of the party as law and justice require.
Sect. 19. Wlien it appears by the return of the officer or otherwise
that the person whose restraint or im))risonment is in question is claimed
to be held to service or labor in another state, and to have escajied from
such service or labor, the court or justice shall, on the application of any
party to the proceeding, order a trial bj^ jury ns to any facts stated in the
i-eturn of the officer, or alleged, and may admit said person to bail in a
sum not exceeding two thousand dollars. In such case, issue may be
joined by a general denial of the facts alleged, the plea may be not
guilty, and the jury shall have the right to return a general vei-dict, and
the same discretion as juries have in the trial of criminal cases ; and the
finding of a verdict of not guilty shall be final .and conclusive.
Sect. 20. When a trial by jury is ordered, the court or justice, unless
a jury is already in attendance, shall by warrant command the sherifl"or
his deputy to summon a jury, in the manner provided in chapter forty-
three, to attend at the time and place stated in the warr.ant ; at which
time and place they shall be empanelled, and having elected a foreman
by ballot, the issue so framed shall be submitted to thein for their deter-
mination. If one jury disagrees, the issue maybe submitted to another
jury or continued to the next term, at the discretion of the court. In
every case of disagreement another jury may be summoned and quali-
fied as above provided, forthwitli or at a future day, in the discretion of
the court or ju.stice, until a verdict is finally rendered. If a person sum-
moned as a juror fails to attend without sufficient cause, he shall pay a
fine of fifty dollars. And if, by reason of challenges or otherwise, there
is not a full jury of the persons summoned, the officer attending the
hearing shall return some suitable person or persons to supply the
deficiency.
Sect. 21. If a claimant apjiears to demand the custody or jiossession
of the ])erson for whose benefit the writ is sued out, he shall state in
writing the facts on which he relies, with precision and certainty. Neither
the cl;iim:int, nor the alleged fugitive, nor any person interested in his
alleged obligation to service or labor, shall be permitted to testify at the
trial of the issue ; and no confessions, admissions, or declar.ations, of the
alleged fugitive against himself shall be given in evidence. Ujion every
(|uestion of fact iiivcilved in the issue, the liurden of proof sliall be on
the claimant ; and tlie facts alleged and necessary to be established must
Chap. 144.] habeas corpus — trial. 737
be ]iroveJ by the testimony of at least two credible witnesses, or other
legal evidence equivalent thereto, and by the rides of evidence known
and secured by the common law, except as modified by the provisions of
this section. No e.r. parte deposition or affidavit shall be received in
jiroof in behalf of the claimant, and no presumption shall arise in his
Ijivor from jiroof that the alleged fugitive or any of his ancestors had
been actually lield as a slave, without proof that such holding was
legal.
Sect. 2'2. When it appears from the return of the writ or otherwise, xotice, -n-hcn to
that the party is detained on any process under which another iierson has ijcKivento
^.*' ..,..*'^. . ,i 1,1 other persons.
an interest ni contnuung Ins impnsonment or restramt, the ])arty shall li. s. ill, §iy.
not be discharged until sufficient notice has been given to such other
person or his attorney, if within the state, or within thii'ty miles of the
j)lacc of examination, to appear and object to such discharge if he
thinks tit.
Seit. '23. When it appears from the return of the writ or otherwise, when to be
that the party is imprisoned on a criminal accusation, he sliall not be dis- nev™en'cnii°'"
charged until sufficient notice has been given to the attorney-general or K.s?iii, §20.
other attorney for the commonwealth, that he may appear and object to
such discharge if he thinks fit.
Sect. 24. Until judgment is given, the court or judge may remand Custody of
the party, or may bail him to appear from day to day, or may commit e""JiiSon"^
him to the sheriff of the county, or place him under such other care and k. s. in, §26.
custody as the circumstances of tjie case may require.
Sect. 25. If the party is detained for a cause or oftence for which he Partv, when
is bailable, he shall be admitted to bail if sufficient bail is oflered, and if ™;1,!;°"' '" '"'
not, he shall be remanded with an orderof the court or judge expressing li. s. 111, §23.
the sum in which he shall be held to bail, and the court at which he
shall be required to apjiear; and ;ui3- justice of the peace may, at any
time before the sitting of said court, bail the i)arty pursuant to such
order.
Sect. 2G. If the party is committed on mesne process in a civil action iiow, when
for want of bail, and "if it apjiears that the sum for which bail is li^J.'Ieprocess.
required is excessive and unreasonable, the court or judge shall decide U. S. 111, §21.
what bail is reasonable, and shall order that on giving such bail the party
shall be discharged.
Sect. 27. If the party is lawfully imprisoned or restrained, and is whentobere-
not entitled to be enlarged on giving bail, he shall be remanded to the K''s''ni §"5
])erson from whose custody he was taken, or to such other person or
officer as by law is authorized to detain him.
Sect. 28. If no legal cause is shown I'or the imprisonment or restraint, when to be
the court or judge shall discharge the party therefrom. K.'^'s.' iu?§'22.
Sect. 29. No person who has been discharged upon a habeas corpus when dis-
shall be again iin]irisoned or restrained for the same cause, unless t(!"|^,fpris"JJed''
indicted therefor, convicted thereof, or committed for want of bail by again, unless,
some court of record having jurisdiction of the cause; or unless after a r?'s. 111, § 3i.
discharge for defect of proof, or for some material defect in the commit-
ment in a criminal case, he is again arrested on sufficient proof^ and
committed by legal process.
Sect. 30. When a )ierson is committed to jail on a criminal accusa- naims corpus
tion for want of bail, any justice of the superior court or of a police pofson js^com-
court, or any two justices of the peace and of the quorum, may admit mitted iuerim-
him to bail in like manner as might have been done by the court or ijj's^sr^'f*!^'
magistrate who committed him; and said justices, respectivelj-, may ''vi^' 1?.^' ^ ^'''
issue a, Vtrit of habeas corpus and cause such jnisoner to be brought 2 Giaj-i ■*"<!.
before them when it is necessary for the purpose expressed in this
section.
Sect. 31. Xothing contained in this chapter shall be constnied to fsjup '^fit'g ™f ^
restrain the power of the supreme judicial court or superior court, or any habms corpus
62* 93
738
HABEAS CORPUS — PENALTIES.
[Chap. 144.
ill other cases,
Const, ch. 1,
§3, arts. 10, 11.
U. S. Ill, §35.
1»51), 190.
Any court may
issue writs of
habenn rorpns
in eortain cases.
K. S. Ill, §37.
Penalty on olTi-
cer refusing
copy of war-
rant.
U.S. Ill, §27.
1S52, 312.
Proceedings
agaiust one re-
fusing to obey
writ.
U.S. Ill, §28.
Proceedings
against slieriiT,
&c., in sucli
case.
U.S. Ill, §29.
New precept to
issue to auotlier
officer, &c.
U.S. Ill, §30.
lSo2, 312.
Penalty for re-
fusiug.
E. S. Ill, §31.
1852, 312.
Persons diso-
be3rino^, &c.,
writ, liable as
for contempt.
1848, 254.
Penalty for re-
moving or con-
cealing prison-
er.
K. S. Ill, §32.
1862, 312.
Penalties not to
bar action by
party.
U.S. HI, §33.
justice of either of said courts, to issue a writ o{ habea.s coiytLS nt discre-
tion, and thereupon to bail a jierson for whatever cause he is committed
or restrained, or to discliarge him, as hiw and justice require; except
only persons committed by the governor and council, the senate, or the
house of representatives, in tlic manner and for the causes mentioned
in the constitution.
Sect. 32. Nothing contained in this chapter shall be construed to
restrain the power of any court or magistrate to issue a writ of habeas
cotyits, when necessary to bring before them a prisoner for trial in any
criminal case lawfully pending in the same court or before such magis-
trate; or to bring in a prisoner to be examined as a witness in a suit or
proceeding, civil, or criminal, jiending in such court or Lei'ore such magis-
trate, when the personal attendance and examination of the witness is
deemed necessary for the attainment of justice.
Sect. 3.3. An officer, who refuses or neglects for six hours to deliver
a true cop)' of the warrant or jjrocess by which ho detains a prisoner,
to any ]ierson who demands sucli copy and tenders the fees therefor,
shall forfeit and pay to such prisoner the sum of two hundred dollars, to
be recovered in an action of tort.
Sect. 34. If a person to wlioni such writ of habeas corpus is di-
rected refuses to receive the same, or neglects to obey and execute it
according to the provisions of this chapter, and no sufficient excuse is
shown for such refusal or neglect, the court or judge before whom the
writ was returnable shall proceed forthwith by process of attachment,
as for a contempt, to compel obedience to the writ and to punish the
person guilty of the contempt.
Sect. 35. If such attachment is issued against a sheriff or his dep-
uty, it may be directed to a coroner, or other person to be designated
therein, who shall have full power to execute the same ; and if the
sheriff or his deputy is to be committed u]ion such process, he may be
committeil to the jail of any county other than his own.
Sect. 36. Upon such refusal or neglect of the person to whom the
writ of habeas corpus is directed, the court or judge may also issue
a preeeiit to any officer or other person to be designated therein,
commanding him to bring forthwith, before such court or judge, the
person for whose beneh't the writ of habeas corpus was issued, and
the prisoner shall be thereupon discharged, bailed, or remanded, in
like manner as if he had been brought in upon the writ of habeas
corpus.
Sect. 37. Every ]ierson guilty of such refusal or neglect to receive
and execute a writ of habeas corpus, shall moreover forfeit to the party
aggrieved thereby the sum of four hundred dollars, to be recovered in
an action of tort.
Sect. 38. Whoever resists the service of the writ of habeas corpus,
or disobeys the same when serveil, shall be liable to attachment,
as for a contempt of the court or judge before whom the writ is re-
turnalile.
Skit. 39. If any one who has in his custody, or under his power, a
person entitled to a writ of habeas corpus, whether a writ has been
issued or not, transfers such prisoner to the custody, or ])laces him under
the ])ower or control of, another person, or conceals Jiim, or changes the
place of his confinement, with intent to elude the service of such writ
or to avoid the effect thereof, the person so offending shall forfeit to the
jiarty aggrieved thereby the sum of four hundred dollars, to be recov-
ered in an action of tort.
Sect. 40. The recovery of any penalty imposed by the foregoing
])rovisions of this chapter shall not bar an action at common law
for false imprisonment, or for a false retm'u to the writ of habeas
Chap. 144.] personal replevin. 739
corpus, or for any other injury or damage sustained by the aggi'ieved
party.
Sect. 41. Nothing contained in tliis chapter shall be construed to Superior court
authorize the superior court or anyjustice tliereof to order tlie discliarge p°J'on heidi'""
of a person committed or held upon any process issued by the supreme &«•> by s. J. c.
judicial court or any justice thereof. .
PEESONAL EEPLEVIX.
Sect. 42. If a person is imj)risoned, restrained of his liberty, or held TTrit of pcr-
in duress, unless in the custody of some public officer of the law by ^"hcn to'issu'e'
force of a lawful warrant or process, civil or criminal, issued by compe- ?L?'^Jj,=''K
tent authority, he sludl be entitled, as of right, to the writ of jiersonal 8 3iet~'i02.
replevin, and to be thereby delivered in the manner hereinafter pro-
vided.
Sect. 43. The writ shall bo issued from and returnable to the su- issum<j.ind
perior court in the county in which the ])laintiff is confined, and shall 5^vVr""^i 's'™''
be issued fourteen days at least Ijefore the return day. i^-jj. «'J-
Sect. 44. It shall be directed to the sheritf of the county, or his by whom
deputy, or to any of the coroners thereof, and shall be served without i|j:7^ji,§3.
delay by either to whom it is delivered.
Sect. 45. It shall be in the following form, viz. : — form of.
18:J7, 221, §4.
„ ,, 1859,196.
Commonwealth of MASSAcnrsETTS.
, ss. To the sheriff of our county of or his deputy, or either of the
[l. s.] coroners thereof, Greeting.
AVc command you, that justly and "without delay, you cause to be replevied C. D.
who (as it is said) is taken and detained at , within our said county, by the
duress of G. H., that said C D. may appear at our superior court next to be holden
at , within our county aforesaid, then and there in our said court to demand
right and justice against said G. H., for the duress and imprisonment aforesaid, and
to prosecute his replevin as the law directs :
Provided, said C. D. shall before his deliverance give bond to said G. H. in such
sum as }'ou shall judge reasonable, and with two sureties at least having siiiBcient
within your county, with condition to appear at our said court to prosecute his repleWn
against said G. 11., and to have his body there ready to be redelivered, if thereto
ordered by the court ; and to pay all such damages and costs as shall be then and
there awarded against him. Then, and not otherwise, are you to deliver him. And
ii' said C. D. is by you delivered at any day before the sitting of our said cotu-t, you
are to summon said G. H. by ser\ing him with an attested copy of this writ, that he
may appear at our said court to answer to said C. D.
AVitness, L. S., Esq., at B , the dav of , in the vear
'a. B., Clerk.
Sect. 46. Xo person shall be delivered from his imprisonment or shall not de-
restraint by force of such writ, until he gives bond in the manner ex- straint™uniess
pressed in the preceding section. The bond shall be returned with the jS-'^^,^'?;'*^''-
writ like a bail bond, and left in the clerk's office, to be delivered to the '' '
defendant upon demand.
Sect. 47. The officer who serves the writ shall be answerable for the officer reponsi-
instifficieney of the sureties in the bond, in like manner as he is answer- ']t,;^''T2i"§^'."''*"
able for taking insufficient bail in a civil action, and the bond maybe i»or, m, §22.
approved in the same manner as a liail liond.
Sect. 48. If it a]i]icars that the plaintitf was unlawfully imprisoned Plaintiff to re-
or restrained, he shall be discharged, and recover costs as well as dam- Ji'isc^i'a'rgod.'^
ages for the imprisonment and detention. issr, 221,57.
Sect. 49. If the i)laintiff does not maintain his action, the defend- Pefcndant
ant shall have judgment for costs and for any damages he has sustained c,- 'costs, &c°''
by reason of the rejilevin. is-ir, 221, § s.
Sect. 50. If it appears that the defendant is bail for the plaintiff, or whcndefend-
is entitled to the custody of the plaintiff, as his child, ward, servant, fna^j!uttoT
apprentice, or otherwise, he sh.all have judgment for a redelivery of the rodeiiveryof
body, to be held and disposed of according to law. i83r,'22i, §9.
-40
PERSONAL LIBERTY.
[Chap. 144.
Cfipi.i8 bIliII is-
sue to take de-
fendant in cer-
tain cases.
1S37, :;-'l, § 10.
Defend.TOt may
deny the return,
&c.
IS-ir, 221. §11.
1852, 312.
Defendant, if
tf uilty of secret-
inj^, to be com-
mitted to jail,
&c.
lS3r, 221, § 12.
ProceedinG:s
when plaintiff's
body is i)ro-
duced by de-
fendant, after
return of secre-
tion, &c.
1S37, 221, § 13.
Either party
may -appeal to
S. J. C.
1837, 222, § 14.
1810, 87, §§ 1, 3.
Writ of per-
sonal replevin
may be sued
out, &c., in be-
half of phuutiff,
witliout ex-
press authority.
1837, 221, § 15.
Description of
parties, if
names are un-
kuown.
lar, 221, § 10.
Sect. 51. If it appears from the return of tlie writ th.at the defend-
ant luis secreted or conveyed away tlie plaint ift"s body, so that the
officer cannot deiiver him, the court shall on motion issue a capia.s to
take the defendant's body, and him safel}' keep, so that he may be had
at the then next term of the court, to traverse the return of the writ;
but the deiendant may give bail tor his ajipearance as in a civil case, in
such sum as the ofKcer may judge reasonable.
Sect. 52. At the term at which the capias is returned, the defend-
ant may deny by answer the return on the ^^•rit, and if it appears on
the trial th.at he is not guilty of secreting or conveying away the
plaintitf as set forth in the return, he shall be discharged and recover
his costs.
Sect. 53. If the defendant does not traverse the return, or if upon
a traverse the issue is found against him, an alias writ of capias shall be
issued, and he shall thereupon be committed to the jail, there to remain
in close custody until he produces the body of the plaintift", or proves
him to be dead. If the defendant suggests such death at any time
after committal as aforesaid, the court shall at his expense empanel a
jury to try the fact ; and if the death is proved the deiendant sh.all be
discharged.
Sect. 5-1. If, at any time after such return of secretion and conveying
away, the defendant produces the body of tlie plaintift' in the court to
which the writ of personal replevin was returnecl, or in whicli the suit
is jiending, the court shall deliver the plaintifi" from restraint, upon his
giving bond agreeably to the condition of the writ ; and for want of
such bond the plaintiff shall be committed to abide the judgment on the
replevin ; and in either case the suit shall be proceeded in as if the
phtiiitiff had been delivered on the writ of personal replevin.
Sect. 55. Either party may appeal from any judgment of the court
founded upon matter of law ajiparent upon the record, to the sn]ireme
judicial court, as in civil actions ; and upon such apjieal the whole ease
shall be carried up, and be disposed of as it ought to have been if there
had been no appeal.
Sect. 56. The writ may be sued out by any person for and in Vichalf
of the plaintiff, and may be prosecuted to final judgment without any
express power for that purpose ; but the person so apjiearing shall, when
required during the pendency of the suit, give security in such manner
as the court direet.s for the payment of all damages and costs awarded
against tlie plaintift*.
Sect. 57. If tlie name of the defendant or person to bo delivered is
unknown or uncertain, he may be described and proceeded with in the
writ of personal rejilevin or any process under the same, as is prescribed
in relation to the writ of habeas corpus hj sections eight and nine.
Governor to ap-
point commis-
sioners in each
county to ilc-
feud luyitives.
Attorneys may
act as counsel.
1855, 489, § 17.
See § m.
Commissioners
to be pai<l by
commonwealth.
1)^5, 4811, § is.
See § 06.
PEESONAL LIBERTY.
Sect. 58. The governor, by and with the advice and consent of the
council, shall ap])oiut in eveiy county one or more commissioners learned
in the law, who shall in their resjiective counties, when any ]>erson is
arrested or seized, or in danger of being arrested or seized, as a fugitive
from service or labor, on being informed thereof, diligently and faithfully
use all lawful means to protect and defend such alleged fugitive, and
secure to him a fair and imj)artial trial liy jury, and the l)enefits of the
provisions of this cha])ter; and any attorney wliose services are desired
by the alleged fugitive may also act as counsel.
Sect. 59. The conimissioners shall defray all expenses of witnesses,
clerks' fees, and ofticers' fees, and other exjienses incurred in the protec-
tion and defence of any person so seized or arrested; and the same,
together with the reasonable charges of the commissioners for their
Chap. 144.] personal liberty. 741
services ns attorneys and counsel, ishall be reimbursed by the eomnion-
wealtli.
SiiCT. 00. No person wliile liolding any office of honor, trust, or rcisons hoW-
emohiment, under the laws of this state, shall, in any capacity, take eog- u',f8°me'iiot"
uizance of any case, issue any warrant or other process, or grant any *» issue wnr-
certificate, under or by virtue of an act of congress approved the twelfth fuMitives" I-c.
day of February in the year one thousand seven hundred and ninety- {JjJ:,' !,''st,^|/i^9
three, entitled "An Act respecting fugitives from justice and persons Scesoc.'
escai)ing from the service of their masters," or under or by virtue of an
act of congress, ap]iroved the eighteenth day of September in the year
one thousand eight hundred and tifty, entitled "An Act to amend, and
supplementary to, 'An Act respecting fugitives from justice and persons
escaping from the service of their masters,'" or shall, in any capacity,
serve such warrant or other process. Any justice of the jieace who
oflends against tlie provisions of this section, by directly or indirectly
acting in such cases, shall forfeit a sum not exceeding one tliousand
dollars, or be imprisoned in jail not exceeding one year lor each offence.
Sect. 61. No jail, prison, or other jilace of confinement, belonging state jails not
to or used by the state or any county therein, shall be used for the Jietmtion'of"
detention or imprisonment of any person accused or convicted of an persons claimed
offence created by either of the acts of congress mentioned in the pre- ^"^ "&'"^'^s,
cedintr section, or accused or convicted of obstructinir or resistintr any 1843, C9.
process, warrant, or order, issued under either of said acts, or of rescuing, scc§06. ■ '
or attempting to rescue, any person arrested or detained under anj' of
tlie provisions of either of said acts, nor for the imprisonment of a person
arrested on mesne process or execution in a suit for damages or penalties
accruing, or claimed to accrue, in consequence of aid rendered to any
fugitive escaping from service or labor.
Sect. 62. Whoever removes from the limits of this state, or assists rimishment
in removing therefrom, or comes into the state with the intention of r"movin^^'&c°'^
removinsr or assistino: in the removing therefrom, or procures or assists or coming here
^. , 1 ^ T ^ 1 • • ^ 1 ^1 £• With intention
in procuring to bo so removed, anv person being in the peace thereoi, to remove, per-
who is not ^" held to service or labor" by the "party" making "claim," ^""Ji°°L''i^'w
or who has not "escajied irom the "party making "claim, or whose isss, 480, §§ 7, 8.
"service or labor" is not "due" to the "party" making "claim," within Sec §06.
the meaning of those words in the constitution of the I'nited States, on
the pretence that such person is so held or has so escaped, or that his
"service or labor" is so "due," or with the intent to subject him to such
" service or labor," shall be punished by fine not less than one thousand,
nor exceeding five thousand, dollars, and by imprisonment in the state
prison not less than one, nor exceeding five, years. And any person
sustaining wrong or injury by any proceeding jjunisiiable as aforesaid,
may also mahitain an action and recover damages therelbr.
Sect. 6.3. Any sheriff^ deputy-sheriff, jailer, coroner, constable, or Penalty on
other officer, of this state, or of the police of any city or town, or any resTilfc^'fu|i-' ""^
district, county, cit}-, or town, officer, or any officer or other member of tiv_estrom
the volunteer militia of this state, who hereafter arrests, imprisons, de- 1843, bo, §§ 2, 3.
tains, or returns, or aids iii arresting, imprisoning, detaining, or return- isso, 4S9, §§ i,
ing any person for the reason that ho is claimed or adjudged to be a See§60.
fugitive from service or labor, shall be jiunished by fine not less than
one thousand, and not exceeding two thousand, dollars, and by impris-
onment in the state ]irison not less than one, nor exceeding two, years.
Sect. 64. The volunteer militia shall not act in any manner in the otimembersof
seizure, detention, or rendition, of a jierson for the reason that he is "nVii'i'sdzure of
claimed or adjudged to be a fugitive from ser\'ice or labor. An)- mem- inKitives from
ber thereof who offends against the ]>rovisions of this section shall be ],v55,489, §16.
punished by fine not less than one thousand, and not exceeding two g^^h^'igj 55
thousand, dollars, and by imprisonment in the state prison for not less
than one, nor more than two, years.
742
AUDITA QUERELA.
[Chap. 145.
Penalties not to
apply to acts of
military obe-
dience, &c.
1858, 173, § 2.
Preceding sec-
tions not to aji-
ply to fu*^itives
from justice.
1855, 489, §21.
United States
judicial officers,
&c., not to hold
office under
laws of this
state, except,
&c.
Power of jus-
tice of the peace
when U. S.
commissioner.
1858, 175, § 1.
Sect. 65. The penalties prescribed by tlie two preceding sections
shall not apply to any act of military oljedience and subordination per-
formed by an officer or private of the militia.
Sect. 66. Nothing in the eight preceding sections, nor in sections
nineteen, twenty, and twenty-one, sliall be construed to apply to so
much of the act of congress of the twelfth day of February in the year
one thousand seven hundred and ninety-three, as relates to fugitives
from justice.
Sect. 67. N"o person holding a judicial office under the laws of the
United States, or the office of commissioner of the circuit court of the
United States, shall hold any judicial office under the constitution .and
laws of this state, except that of justice of the peace. No justice of
the peace, while holding the office of a commissioner of the United
States circuit court, shall have authority to grant any warrant, or to
issue any process, civil or criminal, other than summonses to witnesses,
or hear and try any cause, civil or criminal, under the laws of this
state.
CHAPTER 145.
OF AUDITA QUERELA, CERTIORARI, MANDAMUS, AND QUO WARRANTO.
audita querela.
Section
1. Audita qucreJny how sued out, &c.
2. to what court returnable.
3. Proceedings.
4. Judgment.
5. when for plaintiff, shall bar new action.
C. Plaintifl", how discharged from prison.
7. after surrender, to be held, &c.
CERTIORAKI.
8. AVrits of ccyfiornri. to issue from S. J. C.
9. Proceedings of other tribunals quashed or
affirmed, &c.
10. Court may allow costs.
11. Limitation of time within which writ may
issue.
12. Court may issue injunction after writs of
audita querela, and certiorari, &c.
jiaxdamus.
Section
13. Writ of mnndaimts, return, proceedings.
14. Court may make rules before and after tirst
writ, &c. Admittance of third party.
15. Proceedings not to abate on death, &c., of
third party.
QUO WARRANTO.
16. Application for quo warranto.
17. when made and heard.
IS. to be heard summarily.
19. w-here to be filed. Notice, &c.
20. Court may issue injunction.
21. Attorney -general may appear, &c.
22. Judgment for complainant when attorney-
general does not appear.
23. for defendant. Costs.
24. Other duties of attorney-general, and rights
of others not affected.
Audita querela,
how sued out,
&c. 1780, 47.
K. S. 112, § 1.
5 Met. 228.
13 Gr.ay, 1.
to what court
returnable.
K. S. 112, §2.
ISo'J, 19u.
Proceedings.
It. S. 112,§§3,ri.
1840,87, §54.5.
.Tudgracnt.
K. S. 112, §4.
4 Mass. 485.
JO Mass. 101.
12 Mass. 270.
14 Mass. 443.
AUDITA QUERELA.
Sectiox 1. The writ of audita querela may be sued out and served
like an original writ of attachment or summons, and tlie forms of process
shall be substantially the same as heretofore established and used in
this state.
Sect. 2. When the writ is brought to prevent, set aside, or annul,
any proceedings ujion a judgment or execution, it shall be sued out of
and returnable to the court "in which the judgment was rendered. In
other cases it may be brought in tlie county in which any personal action
might be brought between the same parties, and shall be sued out of
and returnable to the su])erior court.
Sect. 3. The ]iroceedings in relation to pleas, answer, appeal, and
other matters, shall be the same as in other civil actions, so far as they
are a]i]ilicable.
Sect. 4. The court shall hear and determine the cause upon any
issue of law or fact, or u]ioii the nonsuit or default of either party, and
shall render judgment as law and justice shall require.
Chap. 145.] certiorari, mandamus. 743
Sect. 5. When tlio writ is brought to set .iside or annul .iny pro- Judgment,
ceetliugs under an execution, the ])laintitf, if lie prevails, shall recover JIff™haiib!^
reconiiiense for the daniattes suftered by said iiroceedinscs, and the iudsr- new action,
meut on the audita querela shall be a bar to any other action thereafter "" "
brouglit for the same damages.
Skct. 6. If the phiiiitifi" is imprisoned on the execution or other pro- Plaintiff, how
cess complained nt; the court in which tlie suit is pending may enlarge frompneon
liim u]ion his giving bond to tlie defendant in such sum as the court K. S. ii2,§§",8.
shall order, witli two or more sureties having sufficient within the county
and approved by the court, conditioned that if final judgment on the
audita querela is rendered for the defendant, tlie plaintiff sliall within
thirty d.ays thereafter suri-ender himself to tlie jailer or otlier officer by
whom he was imprisoned, to be detained in custody under the former
execution or process, or shall within tliat time ]iay the sum due on the
former execution or ])rocess, together with such costs as may be re-
covered by the defendant.
Sect. 7. If tiie plaintilT thus surrenders himself lie shall be in cus- after surren-
tody under the execution or other ])iocess on wliicli he was imprisoned, der> tote held,
in lilce manner as if the writ of audita, querelei had not been brou2;ht. R- s. iia, §9.
-' ^17 Mass. 153.
CERTIORARI.
Sect. 8. Writs of certiorari to correct errors in proceedings that arc Writs of rertio-
not according to the course of the common law, shall be issued from Jvom's.T'c.
and returnable to the suiucme judicial court accordinc; to the practice U.S. 112, §21.
. . ~ . ^ 8 Cush 5''9
heretofore established, and subject to such further regulations as shall
be made from time to time by the general rules of the court.
Sect. 9. When the proceedings of any tribunal are brought up by Proceedings of
a writ of certiorari, the court may quash or affirm such jiroceedings, q*'isii,',!i'or°'f-^
or enter such judgment as the court below slioukl have rendered, or firmed, &c.
make such order, judgment, or decree, in the premises, as law and justice "*^*' '""■
require.
Sect. 10. Upon application for a certiorari, and also on the final Court may ai-
adjudication when a certiorari is granted, the court may, in its discretion, R^s''n2^'§22
award costs atrainst aiiv party who apiiears to maintain or object to the 4 Mass. 505.
T •■-.•"' • '^ *^ 11 Mass. 4(Jo.
proceeding in question.
Sect. 11. No writ of certiorari shall be issued, unless application is Limitation,
made therefor within six years next after the proceeding complained of ^' ^' i^-' §'*^-
Sect. 1"2. At any time .after the issuing of a writ of audita querela Court may
or certiorari, or ]iendiiig an a])plication for a certiorari, the court may tion°&c.""°
issue any writ of injunction wliicli the nature of the case and justice
and equity in their judgment require.
siasdajiijs.
Sect. 13. When a writ of mandamus issues, the person required to Writ of mnnrfo-
make retuiTi thereto shall make his return to tlie first writ, and the per- procee'thu™.'
son suing the writ may by an answer traverse any material facts con- ij^sa, 312, §§ 38,
tained in such return, or demur tliereto. If tlie party suing the writ (j'jiass. iOi.
maintains tlie issue on his part, his damages sh.all be assessed, and a
judgment rendered, tliat he recover tlie same witli costs, and tliat a
peremptory writ of inaridamus be granteil ; otlierwise tlie party making
the return shall recover his costs. No action sliall be maintained for a
false return to a writ of mandamus.
Sect. 14. Tlie court ma}' make rules, not only on a petition for the Court may
writ, but iqion and after tlie issuing of tlie first writ, calling upon any foreami'afteT
iierson other tlian tlie party to whom the ^\Tit is lirayed to be or has first writ, &c.
J ,. , 1 , • r • ■ ■ 1 i • i i • ^1 1 • .. Admittance of
been directed, liavmg or chiimmg any right or interest in the subject third party,
matter, to show cause against the issuing of the writ. If such person oo^pict'^lg^"'
744
QUO WARRANTO.
[Chap. 145.
Procoerling:s
not to abjite oa
death, &c., of
third party.
1852, 311i, §41.
appears lie shall bo heard in such manner as the court may direct, and
in ]>r(5]3er eases may be allo^\'ed to I'raine and sign the return to the first
writ, and to stand as the real ])arty in the ])roeeedings.
Sect. 15. If a third jierson is admitted as is jn-ovided in the jireccding
section, the proceedings shall not abate or be discontinued by the death,
resignation, or removal from office by lapse of time, or otherwise, of the
person to whom the writ was directed, and any peremptory writ shal'
be directed to his successor.
Application for
fpio irarraiifo.
INV.', :!IL', §42.
'.I ('usli. owl.
1 (irav, :iro.
3 Gray, llli.
"when made
and heard.
1S.«, .312, §43.
to be heard
eummarily.
1S52, 312, § 44.
where to be
filed.
Notice, &c.
1852,312, §§45,
49.
Court may issue
luj unction.
1852, 312, §40.
Attorney-gen-
eral may ap-
pear, &c.
1862, 312, §49.
Judgment for
complainant
when attorney-
general does
uot appear.
(852,312, §47.
ibr defendant.
Costs.
1852, 312, § 48.
Other duties of
attorney-gen-
eral, and riglits
of others uot
affecti-d.
Is:J2, 312, §50.
5 Mass. 2.30.
3 Gray, 124.
QUO WAraiAXTO.
Sect. 16. Any person whose private right or interest has been in-
jured, or is put in hazard by the exercise by any private corporation, or
]iersons claiming to be a jjrivate corporation, of a franchise or privilege
not conferred by law, whether such jierson is a mendier of such corpo-
ration or not, may apjily to the sujireme judicial court for leave to file
an information in the nature of a quo iourranto.
Sect. 17. The a])]ilicatioii may be made and heard at a law or jury
term in any county where the court is in session.
Sect. 18. The court shall take order for a summary hearing of the
]iarties, and if there apjiears jjroliable cause to believe that the ]iarty
comjilained of has exercised a franchise or privilege not confeiTcil by
law, and that thereby the private right or interest of the com]ilainant
has been injured, or is put in hazard, leave shall be granted to tile the
information.
Sect. 19. The infoiTiiation shall be filed in the county where the de-
fendant has its ])riiicipal place of business. A copy of the information,
with an order of notice returnable and to be served when and as the
court may direct, shall be served on the defendant and on the attorney-
general.
Sect. 20. The court, when leave is given to file such information, or
at any time before final judgment, may issue a writ of injunction re-
straining the defendant, and its manager.?, servants, and agents, from
exercising the franchise or privilege in question, until the furtlier order
of the court.
Sec:t. 21. The attorney-general, when he has good reason to believe
there has been a usurpation of a franchise or privilege not conferred
by law, may intervene and demand a judgment of fine and forfeiture.
In such case he shall have the control of all future proceedings, and the
court shall enter such judgment as the princijilcs of the common law may
require, but the complainant shall no longer be responsible for costs.
Sect. 22. If the attorney-general has not intervened, and it is deter-
mined that the defendant has exercised a franchise or privilege not
conferred by law, no judgment of forfeiture shall be entered; but the
judgment shall be, that the corjjoration, or the jiersons claiming to be a
L>orpor.ation, be perpetually excluded from such franchise or privilege,
and that the directors, managers, or agents, by whom the usurpation
was made, pay the costs, to be recovered by the conijdain.int.
Sect. 23. If it is adjudgeil that the defendant has not exercised anj
franchise or privilege not conferred by law, the defendant shall recover
against the complainant the same costs as arc allowed in actions at law.
Sect. 24. Nothing herein contained shall affect the duty of the at-
torney-general to proceed ex officio in all cases in which he might have
heretofore so proceeded by law, nor dojirive any person of the right to
file an information respecting the election or admission of an otiicer or
member of a corporation.
Chap. 146.]
WRITS OF ERROR.
745
CHAPTEE 146,
OF ^VRITS OF ERROR AND REVIEW.
writs of error.
Section
1. Writs of error to isBue from S. J. C.
2. Ju(l^''mcntB of superior court may be revised
on writ of error except, Ac.
3. Jud{;ment3 not to be reversed for certain
defects, &c.
4. nor for mistake in venue.
5. nor unless writ is brougbt within six
years after judgment.
6. or six years after new suit on judgment.
7. Bond required for stay of execution.
8. Sum and sureties, Iiow determined.
9. Procfcdinge when bond is filed.
10. What costs for party prevailing.
11. Writ of error iu erimiual cases in superior
court.
12. Writs may be brought at any time, and
entered iu any county, &c.
13. Writs of error iu capital cases.
14. 15. in other criminal cases.
IG. On reversal for error in sentence, court
may render judgment anew, &c.
17. Costs when defendant discharged.
15. Procecdiugs upon writs of error.
"WRITS OF REVIEW.
19. Review of civil actious.
21.
23.
24.
21).
Section
20. Writ of review allowed as of right to ab-
sent defendant> &c.
may be granted on petition in certain
cases.
AVhero petition may be filed, and trial had.
If not granted, costs.
Trial to be as court orders.
Superior court may grant reviews in cer-
tain cases, itc.
Writ of review, how sued out,
form of.
27. Plaintift'to produce copies.
28. Writ, how to be served.
29. Defendant's property may be attached
thereon.
30. Cause to be tried on former issue, if any.
31. otherwise, upon i)leadiugs on review.
Evidence.
32. Judgment.
33. Costs.
34. Judgment, when for reduced or greater
sura.
35. Case of replevin and of set-off.
3G. One of two or more defendants may review.
37. Writs, itc, when to be indorsed.
38. Defendants petitioning for a stay of execu-
tion, to give security, &c.
WRITS OF EEROE.
Section 1. Writs of error in civil and criminal cases may issue of
course out of the supreme judicial court, in vacation as well as in term
time, and shall be retuniahle to the same court. 7Gr.iy, 378.
Sect. 2. Questions of law, (except upon pleas in abatement,) and
final judgments in civil actions in the superior court, may be reexamined
upon a writ of error, and r.eversed or affirmed, in the supreme judicial
court held for the same county, for any error in law or iu fact, except
as liereinafter provided. When the judgment is reversed, the court
shall render such judgment as the superior court should have ren-
dered. 5Cush. Gil.
Sect, 3. A judgment in a civil action shall not be reversed for any
defect or impeiiection in matter of form which might by law have been
amended; nor because it is not in conformity witii the allegations of
the parties, if it is in conformity with the verdict ; nor shall any error
in law in a civil action in which the defendant appeared and a verdict
was rendered, except such as occurs after verdict, be assigned in a writ
of error. But nothing herein contained shall prevent either party from
assigning any error affecting the jurisdiction of the court.
Sect. 4. Judgment shall not be arrested or reversed on a writ of
eri'or in a civil action, by reason of any mistake respecting the venue
of the action, whether it is local on account of its subject matter or any
or all of its parties.
Sect. 5. Judgment in a civil case shall not be reversed or avoided
for any error or defect, unless the writ of error is sued out within six
years after the entering of the judgment, except as provided in the fol-
lowing section. i^^~' ^"*' § *■
Sect. 6. If an action of contract or writ of scire f<tcias is brought
on a iudgmcut, a writ of error to reverse the judgment may be sued
\z 94
Writs of error
to issue from
S. J.C.
K. S. 112, § 10.
Judgments of
superior court
may be revised
ou writ of er-
ror except, &c.
R. S. S2, § 20.
1840, 87, § 4.
1850, 100.
7 ilet. 500.
10 Met. 172.
Judgments not
to be reversed
for certain
defects, &c.
R. S. 100, § 24,
1852, 312, § 77.
nor for mis-
take in venue.
1852, 312, § 78.
nor unless
writ is brought
within fiix
yc-ars after
Judiiineut.
R. S. 112, §19.
or six years
after new suit
ou judgment.
74-6
WRITS OP ERROR.
[Chap. 146.
K.S. 113, §20.
1852, 312.
Bond roquircd
for stay of cxe-
cntiou.
It. S. 112, §11.
1 Ma^B. 15(5.
Rum and sure-
ties, how deter-
mined.
K. S. 112, § 12.
Proccedini^s,
wlieu boud is
filed.
K. S. 112, § 13.
What costs for
party prevail-
ing.
K. S. 112, § 14.
1 Mass. SI, 208,
342,411,443.
4 Mass. 430.
6 Mass. 4.
Writ of error in
criminal cases
in superior
court.
11. S.S2, §31.
1S40, S?, § 4.
1S42, 54.
Writs may be
brou^'ht at auy
time, and enter-
ed in any coun-
ty, &c.
1842,54, §§1,2.
5 Met. 334.
1 Cush. 300.
Writs of error
in capital cases.
K. S. 112, § 10.
5 CuBh. 380.
in other crim-
inal cases.
K. S. 112, § 17.
same subject.
E. S. 112, § IS.
On revers.al for
error in sen-
tence, court
may render
judgment anew,
&c. is5i,sr.
9 Cush. 270.
Costs when de-
fendant is dis-
charged.
1842, 54, § 3.
1 Cush. 3011.
Proceedings
upon writs of
error.
K. S. lis, §15.
8 Mass. 3K!.
16 Mass. .384.
5 Cush. 38C.
out at any time within six years .after the bringing of such action
or writ.
Sect. 7. A writ of error shall not operate to stay or supersede the
execution in a civil action, unless the plaintiff in error or some person
in his behalf gives bond to the defendant, with one or more sufficient
sureties, conditioned that the phuntitt' shall prosecute his suit to effect,
and pay and satisfy such judgment as m.ay be remlered thereon.
Sect. 8. The sufficiency of the sureties and the amount of the liond
shall be determined by any justice of the supreme judicial court or the
clerk from whose office the writ is issued, aceordiug to such general
rules as the court may from time to time establish.
Sect. 9. Such bond shall be tiled in the clerk's office for the use of
the defendant, and no execution shall be thereafter issued upon the
judgment during the ]jendency of the writ of error. If execution has
been already issued, the clerk shall make and sign a certificate of the
issuing of the writ of error and the filing of the bond, and after notice
of such certificate to the officer holding the execution, all further pro-
ceedings thereon shall be stayed.
Sect. 10. The ]iarty jirevailing on a writ of error in a civil action
shall be entitled to his costs against the adverse party, and if the judg-
ment is affirmed, the court shall adjudge to the defendant in error dam-
,ages for his delay, not less than at the rate of six per cent, and not
exceeding twelve per cent, a year, on the amount recovered by the
former judgment ; and may in their discretion award to the defendant
double costs.
Sei't. 11. Questions of law (except upon pleas in abatement) and
final judgments in all criminal cases in the superior court may be reex-
amined and reversed or affirmed upon a writ of error in the supreme
judici;d court, for any error in law or in fact.
Sect. 12. Writs of error upon judgments in criminal cases may be
brought at any time after judgment is rendered, and may be entered in
any county. When the writ is returned, the court shall without delay
proceed to examine the case ; but the examination may be adjourned
from time to time as circumstances may require.
Sect. 1-3. A writ of error upon a judgment for a capital offence shall
not Issue, unless allowed by one of the justices of the supreme judicial
court after notice given to the attorney-general or other attorney for the
commonwealth.
Sect. 14. Writs of error upon judgments in all other criminal cases
shall issue of course, but they shall not stay or delay the execution of
the judgment or sentence, unless they are allowed by one of the justices
of tlie sujireme judicial court, with an express order thereon for a stay
of proceedings on tlie judgment or sentence.
Sect. 15. When a stay of proceedings is ordered as provided in the
prece<ling section, the judge may at the same time make such order as
the case requires, for the custody of the jilaintift' in error, or for letting
him to bail; or the party may upon a writ of Jiaheas corpus procure his
enlargement upon giving bail, if entitled thereto.
Sect. 16. When a final judgment in a criminal case is reversed by
the supreme judicial court on account of error in the sentence, the court
may render such judgment therein as should have been rendered, or may
remand the case fjr that purpose to the court before which the convic-
tion was had.
Sect. 17. If the defendant in a criminal case is discharged on a
writ of error, the legal costs shall be liorne by the commonwealth.
Sect. 18. The proceedings iqion writs of error, as ti> the assignment
of errors, the scire facias, jileadings, judgment, and all other matters
not herein jirovided for, shall be .acconling to tlu^ course of tlie common
law, as modified by the practice ,and usage in this state and general
rules made by tlie supreme judicial court.
Chap. 146.] writs op review. 747
AVRITS OF REVIEW.
Sect. 19. Final judgments in civil .actions may be reexamined and Review of civil
tried anew upon writs of review, as provided in this chapter, and not it*s.°H.), § i.
otherwise. lOPick'.'in.
Sect. 20. When judgment is rendered as provided in chapter one allowed as of
hundred and twenty-six, u])on the default of a defendant upon whom Jii°fen<i"nf'&c'
service has not been made by reason of liis being out of the state or his R- s. na, §'4.
residence being unknown, he m.ay at any time within one year after the !'■ ''^- '■"•'' ^ '•■
judgment as of riglit, without any petition therefor, sue out of the court
in which the judgment was rendered a writ of review.
Sect. 21. If judgment is rendered, either by the su])reme judicial may be (jraut-
court, or superior court, in a civil action in any manner, the supreme "'cCTtahi'rascs
judicial court, except when a review is prosecuted as of right, mav on it. s. se, §s.
l)etition grant a review on such terms as it deems reasonable: 2»'(>vided, m'.ao.
that if the judgment complained of was rendered in the absence of the J^?-, '*''
petitioner, and without his knowledge, the petition for review shall be 3 Grayr4u'b, .309.
tiled within one year after he first had notice of the judgment, other-
wise within one year after the judgment was rendered.
Sect. 22. The jietition may be jiresented to the court when sitting in where petition
any county, or in vacation to any justice thereof, and the order of no- J,"i'^t'H„|'h'ad
tice issued thereon may be made returnable in such county as the court if not -framed,
shall in the same order direct; but the review, if granted, shall be had ij'Ast'uo, §§ 21
in tlie count V in which the former iudtrment was rendered, or in the ~\,
*• •• . t ..». 4 Slot '{""G
county in whicli the original action would have been tried it it had
been carried to the suiireme judicial court by appeal or otherwise. If
the review is not granted, the court may award to the respondent his
reasonable costs.
Sect. 2.3. Reviews gi-anted by the supreme judicial court shall be Trial to be as
tried as the court shall order, either in that or the superior court. j"";^' w,''!".-!.
Sect. 24. The sujjerior court may concurrently witli the supreme Superior com-t
judicial court grant re\dews of its own judgments in all cases in which vii'wsTii"rertain
a review can be granted according to the provisions of this chapter; eases, ,tc.
and may grant reviews of judgments rendered before a justice of the 2?", is. ''''"'
peace or police court, in any case in which a review might be granted .'.'^"'J"";
if the judgment had been rendered in the superior court. The pro- "
ceedings on the petitions for such reviews, and upon the tri.al thereof^
if granted, shall be conducted in the same manner as is prescribed m
like cases in the supreme judicial court.
Sect. 25. The writ shall be sued out of the clerk's office of the Writ, how sued
court in which the action is to be tried, and shall be in the form here- i"s. 09, §■>.
tofore used, except as is hereinafter jirovided.
Sect. 26. It shall not be necessary to recite at length tlie deelara- form of.
tion and other proceedings in the original suit, but the writ of review jlsjj.?':]*'^'''
may be substantially as follows, viz : — isss,' m.
" summon A. to answer to B. in the review of an action of contract (or tort) brought
by said A. against said B.," " in which action said A. by the consideration of the
justices of our court, begun and held at C. within and for our said county of M. on
the day of , recovered judgment agamst said B. for the sum of
dollars debt," or "damages, and doUars costs, which judgment said B. says
is wrong and erroneous ; "
or the fonner judgment may be briefly described in any manner
deemed sufficiently certain according to such rules as the courts pre-
scribe.
Sect. 27. Tlie iilaintiflf in review shall produce and file in court Piaiatiir to pro
certified copies of the writ, judgment, and all proceedings in the former i{"s^^^'k4
suit, and the originals or copies of .all depositions and other papers used
and filed therein.
SE(rr. 28. The writ shall be served in the same manner as an Writ of review-
748
WRITS OP REVIEW.
[Chap. 146.
how to be
served.
E. S. 99, § 5.
Defendant's
property may
be attached
tlu-reon.
K. S. 99,§§0,12.
Cause to bo
tried on ibrracr
iesue, if any.
It. S. 99, § 7.
1 Mass. 242.
5 Mass. 4SS.
■■i Gray, 420, 509.
otherwise,
upon pleadings
on review.
Evidence.
R.S. !«),§;. 8, 9.
8 Cus'i. 2.W.
Judgment.
K. S. 99, § 10.
Costs.
K. S. 99, § 11.
4 Blass. 014.
Judg'ment,
when for re-
dueed or greats
er sum.
II. S. 99, §§ 13,
14.
19 Pick. 00.
11 Met. 206.
Case of replevin
and of set-off.
K. S. 99, § 15.
One of two or
more defend-
ants may re-
view.
K. S. 99, § 10.
Writs, &c.,
when to be in-
dorsed.
K. S. 99, § 29.
Defendants pe-
titioning for a
stay ol" e.vecn-
tiou, to give se-
curity, &c.
K. S. 99, §§ 12,
22, 23.
lW!i, i:)G.
8 Cush. 302, 428.
original ivrit, except that wlion the flefendant is not an inhabitant of
the state, or not found therein, the writ may be served on tlie person
wlio appeared as his attorney' in the original suit, and the court may
continue the cause, to enable the absent party to appear and answer.
Sect. "29. If the writ is sued out by the original plaintiff, lie may
cause the defendant's goods and estate to be attached as tliey might
have been in the original action, and for this i)uriiose the writ of review
may be so framed as to require an attachment in tlie common form and
that the defendant be summoned. No attachment made, or bail taken,
in the original suit shall be liable to satisfy the judgment rendered on
the review.
Sect. 30. If an issue of fact was joined in the original suit, the
cause shall be tried on the review upon the same issue, e.\ee])t that
the court may .allow amendments of tlie original declaration and other
pleadings, as miglit have beei; done in the original suit ; and if a dif-
terent issue is joined in consequence of such amendment, the cause
shall be tried upon such new issue.
Sect. 31. If the former judgment was rendered witliout an issue,
the parties shall plead or answer upon the review in like manner as
they might have done in the original suit, and the cause shall be tried
upon any issue of fact or law joined upon such pleadings, or answer ;
and each party may produce any legal evidence, whether produced in
the former suit or not.
Sect. 32. Judgment sliall be given in like manner as if the parties
had brought their several writs of review.
Sect. 33. The prevailing party shall recover costs, tmless the court
in granting the review imposed on the petitioner tenns respecting cost.
Sect. 34. If the sum recovered by the plaintiff in the original suit
for debt or damages is reduced on tlie review, the original defendant
shall have judgment and execution for tlie difference with costs ; or, if
the former judgment is not satisfied, one judgment may be set oft'
against the other, and an execution issue for the balance. If the origi-
nal plaintitt' recovers a greater sum for debt or damages than was
awardeil to him in the original suit, he shall have judgment and execu-
tion for the excess.
Sect. 35. In actions of replevin and in actions in which a set-off
is filed, the origin.al defendant shall be considered, as to every thing
contained in this chajiter, like a plaintiff in other actions, so far as it
resjiects any damages awarded to him, either in the original suit or
upon the review.
Sect. 36. If judgment is recovered against several defendants in
the origin.al action, any one or more of them may review in like man-
ner as if he or they had been the only defendants ; and if tlie sum
reco\-ered in the original suit for debt or damages is incrc;ised or
reduced, the court shall take such order resjiecting the furtlier ]u-o-
ceedings as may be necessary to carry into effect the two judgments,
according to the riglits of all parties.
Sect. 37. Writs and petitions for reviews shall be indorsed in the
same manner as original writs ; and all regulations concerning the in-
dorsement of original writs shall ai)iily to writs and petitions for review.
Sect. 38. After tlie rendition of judgment in a civil action, if the
execution lias not been satisfied, the court or justice, iqion the petition
of the defendant, may order a stay or sui)ersedeas of it, if the jietitioner
gives to the adverse ]iarty security to tlie satisfaction of the court or
justice, with condition that he will forthwitli prosecute a review to
final judgment and satisfy such execution as may be issued against him
on the review. The execution shall not otherwise be stayed or super-
seded by the writ of review.
Chap. 147.] keference to arbitration. 749
CHAPTER 147.
OF REFERENCE TO ARBITRATION BY AGREEMENT BEFORE A JUSTICE
OF THE PEACE.
Section
1. Controvorsios may be Biibmitted.
2. Form of submission.
3. Submissiou of all <lemanils, how construed.
4. varied according to a;^reement.
5. Time within whicli award sliall be made.
0. Xeithcf party to revoke submisBiou.
Section
8. Award to be delivered to the court.
9. at what term to be returned.
10. Jurisdiction of tlie court. Judgment.
11. Power of arbitrators as to costs.
12. No appeal allowed. Writ of error may be
brou'lrht.
Award by majority, when valid. 1 13. Fees of the justice, ic.
Sectiox 1. All controversies ■which might bo the suhject of a per- Controversies
soiial action at law or suit in equity, may be submitted to the decision of "l^f ""^ '*"''°"'"
one or more arbitrators, in the manner provided in this chapter. Jts. iH, §i.
Sect. 2. The jiarties shall appear in person, or by their lawful agents s Mas™ i.'
or attornevs, before a justice of the iieiice, and there sIltu and acknowl- ^Cu»h. i;ii.
1 * . , ^11 '^ J (jray, 40/.
edge an agreement in substance as tollows: —
Kno-.v all men, that , of , and , of , have agreed to submit Formofsub-
tho demand, a statement whereof is hereto annexed, (and all other demands between mission,
them, as the case maybe,) to the determination of , , and , the igjjj'ioo
award of whom, or tlie greater part of whom, being made and reported within one 5 jiass. 4s9, 524.
year from this day to the superior court for the county of , the judgment <> Cash. los.
thereon shall be final ; and if either of the parties neglects to appear before the arbi- '" Cush. 114.
trators, after due notice given them of the time and place appointed for hearing the
prirties, the arbitrators may proceed m his absence. Dated this day of ,
in the vear . .
The justice shall subjoin to the agreement his certificate, in substance
as follows : —
Then the above named , and , person-
ally appeared (or, the above named , personally, and said , by said
, his attorney, appeared, as the case may be,) and acknowledged the above
instrument by them signed to be their free act. Before me, , Justice of the
Peace. -
Sect. 3. An .agreement to submit all demands shall include only Submission of
such as might be the subject of a personal action at law or of a suit in how''cou"trued.
equity. 5 Greenl. 38. s M.ass. 1. 5 Cush. Gil. K. S. 114, § 4.
Sect. 4. If a s]iecifie demand is submitted to the exclusion of others, varied accord-
it shall be set forth in the statement annexed to the agreement; other- lUfnt? ''"'''^°'
wise it shall not be necessary to annex any statement of a demand, and «• s. ii4, §3.
the submission may be of all demands between the jiarties, or of all
demands which either has against the other. The submission may be
varied in this respect in any other manner, according to the agreement
of the parties.
Sect. 5. The time within which the award shall be made and reported Time within
may be varied accoi-ding to the agreement of the ]iarties, but no award phau 'b"made.
made after that time shall have any legal effect or operation, unless made «■ s. ii4, §o.
upon a recommitment by the court to which it is reported.
Sect. 6. Neither party shall have jiower to revoke the submission Neither party
without the consent of the other; and if either neglects to ajipear after *°ission'!'"*"''"
due notice, the arbitrators may proceed to hear and determine the U.S. 114, §5.
cause.
Sect. 7. All the arbitrators shall meet and hear the parties, but an Award bv ma-
award by a m;ijority of them shall be valid, unless the concun-ence of the {"{iJ' " ™
whole is expressly required in the submis.sion. o Mass. 4%. 14 Mass. 148. K. s. 114, §11.
Sect. 8. The award shall be deli\ered by one of the arbitrators to to be deiivev-
the court designated in the agreement, or sliall be enclosed and sealed "^^ *° *'^"' ''°"'^'
63*
750
IMPROVING MEADOWS AND SWAMPS. [ChAP. 148.
R. S. IH, § 7.
Avarc], at what
term to be re-
turned.
K. S. 114, § 10.
5 Mass. 4811, 534.
14 Mass. 148.
7 Met. 316.
Jurisdiction of
ilie court,
.'ud^ment.
x:.S. 114, §§8,9.
Cush. 389.
j'ower of arbi-
iiators as to
costs.
JJ. S. 114, §12.
0 Greenl. 247.
2 Mass. 104.
Appeal and
writ of error.
K. S. 114, § 13.
1840, 87, §§ 4, 5.
185'.1, 191).
5 Mot. 287.
(1 Met. 280.
5 Cusll. (ill.
Fees of the jus-
tice, &c.
1£. S. 114, § 14.
by them, .and transmitted to the court, and shall remain sealed until
ojjoned by tlie clerk.
Sect. 9. It may be returned at any term or session of the court held
witliin the time liinited in the submission, and the parties shall attend
without any express notice for that purpose ; but the court may require
actual notice to be given to either party, before it proceeds to act upon
the award.
Sect. 10. The court shall have cognizance of it in the same manner,
and may proceed thereon, as if it had been made by referees appointed
by a rule of court ; and may accept or reject it, or recommit it to the
same arbitrators -for a rehearing. When accepted and confirmed Ijy
the court, judgment shall be rendered thereon as upon a like award by
referees.
Sect. 11. If there is no provision in the submission concerning costs
and expenses, the arbitrators may make such award resjieeting them, as
they judge reasonable, including a compensation for their own services;
but the court may reduce the sum charged for compensation, if it appears
unreasonable.
Sect. 12. An a]ipeal shall be allowed from any order or judgment of
the su])erior court, founded on matter of law apparent upon the record, ou
any a\\ard made under this chapter; or a party aggrieved may bring a
writ of error for any error in law or fact as in other cases. The supreme
judicial court shall thereupon render such judgment as the court below
ought to have rendered.
Sect. 13. The fees of the justice for the agreement of submission and
acknowledgment sliall be forty cents, and the fees in court the same as
for like services with respect to an award made under a rule of comt.
CHAPTER 148.
OF IMPROVING MEADOWS AND SWAMPS.
Section
1. Improvement of meadows, &c., by propri-
etors.
2. Petition to superior court., and notice there-
on.
3. Commissioners may be appointed. Power
and duty of.
4. may cause dams and dikes to be erected,
&c.
5. may employ persons to perform the
work.
6. may apportion expense among proprie-
tors.
7. may appoint a collector thereof.
8. Penalty on collector for withliolding-
money.
9. Compensation of commissioners and col-
lector.
10. Return by commissioners.
11. Apportionment of expense.
12. Provision in case of mortg-age.
13. Commissioners may make or open dams on
laud of other persons.
Section
H. Damages, how ascertained and paid.
15. Persons aggrieved may appeal.
10. Proceedings tlioreon.
ir. Notice to persons who are not parties.
18. Appeal. Exceptions.
rSTRUCTION OF ROADS, &C., TO SWAMPS,
&C.
Towns, Arc, owning swamps, &c., author-
ized to construct roads, &c., to.
Petition for improvements, to commis-
si oners.
notice of.
proceedings on.
Appeal.
Repairs of improvements.
Petition may be made to selectmen, &c.
to be filed and recorded with decree.
Fees of selectmen, Ac.
Appeal to county commissioners.
Improvement SECTION 1. AYlien any moaclow, swamp, marsh, beach, or other low
lic'.^by'^proprie- ^^^^^ ^^ ^^^^^ ^Y several proprietors, and it is necessary or useful to drain
tors. or flow the same, or remove obstructions in rivers or streams leading
Chap. 148.] ijiprovixg meadows and swamps. 751
therefrom, such improvements may be eflfected under the direction of R. s. 115, § 1.
commissioners in the manner lierein provided. 11 5i!it ' S's'
Sect. '2. Such proprietors, or the greater ]5art of them in interest, Petition to su-
may ap]ily by petition to the su]ierior court for tlie county where the J,"i'notic"*'
lands or any part of them lie, setting forth the jwoposed improvements thereon,
and the reasons therefor; and the court shall cause notice of the peti- isio,' /ou.' ^ ''
tion to be given in such manner as it may judge proper, to any pro- h Mass. ss?.
]>rietors who have not joined in the petition, that they may appear and " ' ~'^'
object thereto.
Sect. 3. If upon hearing the parties it appears that the improve- Commissioners
ments proposed will be for the general advantage of the proprietors, ","*' '"^ "pp""!*-
tlie court may ajj])oint three, five, or seven suitable persons, as coinmis- Power and duty
sioners, who shall be sworn to tlie faithful discharge of their duties; k.'s. 1:5, §§33.
shall view the premises, notify parties concerned, hear tliem as to the
best manner of making the improvements, and prescribe the measures
to be adopted for that purpose.
Sect. 4. They shall, according to the tenor of the petition and the may cause
order of court, cause dams or dikes to be erected on the jjremises at ?"bcer"'rtc(f*'
such ])laces and in such manner as they shall direct ; may order the land *c-^
to be flowed thereby for such periods of each year as they shall deem '■''■I'^'S^.
most beneficial ; and cause ditches to be opened on the premises, and
obstructions in any rivers or streams leading tlierefrom to be removed ;
and they shall meet from time to time as may be necessary to cause the
work to be completed according to their directions.
Sect. 5. They may employ suitable ])ersons to erect the dams or may employ
dikes, or perform the otlier work, under their direction, ibr such reason- fo7mTii'e*°vor£
able w.ages as they may agree upon; unless the proprietors themselves !'•*'■ ii3, §0.
do the same in such time and manner as the commissioners shall direct.
Sect. G. They shall ajiportion the whole charge and expense of the mayappor-
improvements, and of executing the commission, anumg the proprietors amon<''p°o'prie-
of the lands, h.aving regard to the quantity, quality, and situation, of '"rs. °
each person's part thereof, and to the benefit that he will derive from ' ' '
the imjirovements ; and shall assess the same upon the proprietors.
Sect. 7. They may appoint a collector of the moneys assessed, and may appoint a
shall give him a warrant to collect, pay over, and account for, the same, ^'^'"'''■t"' 'iiere-
to such person as they may appoint. The collector shall have the same i^- ^- 115, §8.
j)ower and proceed in like manner in collecting tlie assessments, as pro- 4 Gray, 156.
vided for collecting town taxes.
Sect. 8. If the collector neglects for twenty days after being thereto Penalty on coi-
required b}' the commissioners to account for and jjay over tlie money hoMiiin°mouey
he has collected, he .shall be liable to ]iay to the commissioners the wliole R- s. m, §9.
amount committed to him for collection, to be recovered by them in an ^'' '*'
action of contract ; and the money so recovered, after deducting the
expenses of recovery, shall be a])jilied and accounted for by the com-
missioners as if it h.ad been collected and paid over by the collector
j)ursuant to his warrant.
Sect. 9. The collector sh.all be allowed siu:-h compensation for his Compensation
services as may be agreed u])on Ijctween him and the commissioners ; ers^mdcoUee""
and the commissioners shall be allowed such compensation for their ser- tor.
vices as may be ordered by the court. '' ■^' '''^^°'
Sect. 10. The commissioners shall, as soon as maybe after the com- Ketum by com-
pletion of the business, make a return to the court of their doings under i{.'''s'°n™|'ii.
the commission, including an account of all money assessed and col- 7 Pick. aor.
lected by their order, and of the disbursement thereof.
Sect. 11. When it appears to the commissioners that part of the Apportionment
land is held by a tenant for life or ye.ars, they shall determine how much ^ 's^n5"*§i2.
of the sum apportioned on that part of the jireniises shall be paid by such
tenant, and how much by the landlord or reversioner; and shall assess
the same accordingly, unless the parties concerned agree on an appor-
752
IMPROVING MEADOWS AND SWAMPSi [ChAP. 148.
Provision in
case of mort-
K. S. 115, §13.
Commifisionera
may make or
open dams on
land of other
persons.
K. S. 113, §14.
11 Met. 321.
Damaf^es, how
ascertained and
paid.
li. S. 115, § 15.
11 Met. 325.
Persons ag-
grieved may ap-
peal.
R. S. 115, §18.
6 Met. 363.
Proceedings
thereon.
K. S. 115, §17.
5 Met. 303.
Notice to per-
sons who arc
not parties.
E. S. 115, § IS.
Appeal. Ex-
ceptions.
E. S. 115, § 19.
1S40, 87, §§ 1, 7.
1869, 196.
6 Met. 3133.
tionment; and every such tenant, landlord, and reversioner, shall be
considered a proprietor.
Sect. 12. If any part of the land is mortgaged, the mortgagor or
mortgagee, in possession, shall be considered as the proprietor; and all
sums paid by the mortgagee by order of the commissioners, shall be
allowed to him as sums paid by him ibr improvements are by lav/ to be
allowed.
Sect. 13. When the commissioners find it necessary or expedient to
reduce or raise the waters for the purpose of obtaining a view of the
premises, or for the more convenient or expeditious removal of obstruc-
tions, they may open the ihaod-gates of any mill, or make other neeilful
passages through or around the dam thereof, or erect a temporary <lam,
on the land of any person not a party to the proceedings ; and may
maintain such dam or passages for the water as long as may be neces-
sary for the purposes aforesaid.
Sect. 14. All damages thus occasioned shall be estimated and deter-
mined by the coramissioner.s, unless agreed on between them and the
parties concerned; and shall be paid by the commissioners out of the
money to be assessed and collected by them as before jirovided.
Sect. 15. If a person, whether a party to the proceedings or other-
wise interested therein or aiiected thereby, is aggrieved by any doings
of the commissioners, he may ap]ieal to the court at any time after their
appointment and before the end of the term next following that at which
the return is made.
Sect. 16. The court upon such appeal may affirm, reverse, or alter,
anj' adjudication or order of the commissioners, and make such order
therein as law and justice require. All questions of fiict arising upon
the hearing of the appeal, shall on motion of either party be tried by a
jury in such manner as the court shall direct.
Sect. 17. The commissioners before proceeding to open flood-gates
or make other passages for water through or around any dam, or to
erect a dam on the land of any person not a party to the proceedings,
shall give him seasonable notice in writing of their intention, to enable
him to aii]5ear before tliem and object thereto ; and if he appeals from
their determination, and gives notice in writing of his appeal to the
commissioners or any of tliein, they shall suspend all proceedings upon
his land until tlie appeal is determined : 2»'ovided, that the a]>peal be
entered at the court lield next after the expiration of seven days from
the time of claiming the same.
Sect. 18. An appeal shall be allowed from any order or judgment
of the court founded on matter of law a]iixarent on the record, in any
proceedings under this chapter; and any person aggrieved by any
opinion, direction, or judgment, of the court, in any matter of law, may
allege exceptions thereto, which shall be reduced to writing and allowed
and signed by the presiding judge, and thereupon the case shall be
removed into the supreme judicial court as provided in chapters one
hundred and fourteen and one hundred and fifteen.
Towns, &c.,
OAvniuj^
swamps, &c.,
autliorized to
construct
roads, iVc, to.
1855, Ki4, § 1.
See § 25.
Petition for
improvements.
CONSTRUCTIOX OF EOADS, &C., TO SWAMPS, &C.
Sect. 19. Any town, city, person, company, or body corporate,
having the ownership of low lands, lakes, swam))s, quarries, mines, or
mineral deposits, that on account of adjacent lands belonging to other
persons or occupied as a highway, cannot be apjjroached, worked,
drained, or used, in tlie ordinary manner, without crossing such lands or
highway, may be authorized to establish roads, drains, ditches, tunnels,
and railway, to such jdaces, in the manner hereinafter provided.
Sect. 20. The part}' desiring to make such improvements shall file
a petition therefor with the county commissioners within whose juris-
Chap. 148.] construction op roads, &c., to swamps, &c. 7o3
diction tlie premises are situated, setting forth the names of the persons to commission-
interested, if Ivnown to tlie ])etitioner, and also, in detail, the nature of jj^j^ loj^ 5 .,.
the ])ropo:sed improvement and the situation of the adjoining lands;
whicli petition shall be accompanied with a bond, satisfactory to said
commissioners, for the payment of expenses incurred in the prosecution
of the application.
Sect. 21. The commissioners at their first meeting after the tiling of ivtition forim-
the petition and bond, shall give at least three weeks' jniblic notice of notice"™'*'
the time and place of meeting to consider the petition, in some news- isss, iw, § 3.
paper iirinted in the count)- ; and if there is no such ]iaper, in a news-
paper printed in an adjacent county; they shall further give notice to
the mayor of any city and the clerk of any town in which the premises
are situated.
Sect. 22. They shall meet at the time and place appointed, and after proceedings
examination, inspection, and the hearing of evidence, shall determine °".v ,m &*
whether the improvement jirayed for is necessai-y, and if so, shall pro-
ceed to lay out and establish the same in such manner as shall do as
little injury as practicable; and shall assess the amount of damages
which in their opinion the proprietor of the adjacent lands will sustain.
They shall apportion the damages equitably among all parties to be
benefited, having regard to the benefits each will receive ; and such
award shall be deemed conclusive upon each of the parties charged
with such payment, unless an appeal is taken within the period of one
year.
Sect. 2o. Any party aggrie^'ed by the award may appeal therefrom. Appeal,
and thereupon like proceedings shall be had as are jirovided in chapter is^s, iw, §g.
forty-three, for persons aggrieved in the laying out of highways.
Sect. 2-1. When it is necessary to repair any improvement thus con- Repairs of im-
structed, a majority of the persons benefited by it may cause such re- p™^'™^"'?-
paii-s to be made, and compel contributions from each person benefited,
on the basis of the award.
Sect. 25. When the premises mentioned in section nineteen are Petition may be
situated entirely in one town or city, the petition may be made to the "1;"!"],°^''*^'^'"
selectmen or mayor and aldermen thereof, who shall proceed thereon is57, 292, §i.
in all respects as above provided for county commissioners upon such
petitions, except that they need not give notice to their town or city.
Sect. 2<j. The petition under the jireceding section shall be filed in to be filed ami
the office of the town or city clerk before proceedings are had thereon ; decree.'^'' ^^'*
and together with the order or award thereon shall be recorded in said isor, 292, §3.
office within two months after the same is made.
Sect. 27. The selectmen or mayor and aldermen shall each receive Fees of seiect-
for services upon such petitions two dollars a day, and the clerk shall J^"' ^2 563 4
receive for recording petitions and orders the same fees as for mortgages
of personal property.
Sect. 28. A party aggrieved by any order, award, or refusal of the Appeal to coun-
selectmen or mayor and aldermen herein, may complain to the county *>;^™""nission-
conimissioners at any meeting held within one year thereafter; and the issr, 292, §2.
commissioners may thereujion proceed in all respects as though the
petition were originallv made to them.
"95
754
ERECTION AND REGULATION OF MILLS. [ChAP. 149.
CHAPTEE 149.
OF THE SUPPORT AND REGULATION OF MILLS.
erection and regulation of mills.
Section
1. Mills and dams on streams not navigablo.
2. Not allowed to injury of existing- mill or
mill-sitea.
3. Height of dam.
4. Damages recovered on complaiut.
5. Substance of complaint.
6. Notice to mill owner.
7. by whom served.
8. Answer of respondent.
9. Further pleadings and trial.
10. Judgment for resi)oiidrnr. Costs.
11. for complainant. Jury.
12. Appeal and proceedings.
13. Warrant for jury. Jurors, how drawn, &c.
14. Proceedings.
15. Trial may be in court if parties so agree,
&c.
16. Damages, how estimated.
17. Verdict for respondent.
18. for complainant.
19. Jury to establish height of dam, &c.
20. to assess annual damages, and also a sum
in gross.
21. Complainant may elect to take the sum in
gross.
22. If not paid, respondent to have no benefit,
until, &c.
23. Complainant may take annual damages,
instead, &c.
24. shall have lien therefor on mill, &c.
25. Action therefor, against whom to be
brought.
26. Premises may be sold on execution.
27. Sale, how far effectual.
2S. Riglit of redemption.
29. Existing mills and dams not affected, ex-
cept, &c.
30. New trial.
31. Action at common law.
32. Costa.
33. Compensation for services at trial, &c.
34. New complaint by either party, but gross
damages assessed only once in ten years.
35. who may maintain.
36. when to be brought. Tender.
37. Mill owners may tender greater compensa-
tion, &c.
38. Land owner may offer to accept less, &c.
39. Offer, by or to whom made, &c.
Section
40. Effect of agreement, if signed and recorded.
41. Verdict not to bar new complaint, &c.
42. Respondent may make tender in court.
Costs.
43. Judgment upon acceptance of tender. Ac-
ceptance may be for past or future dam-
ages.
44. Separate and joint owners of lands may
join in complaint and have separate dam-
ages.
45. Pleas in abatement. New defendants.
46. Complaint not to abate by death of parties.
Remedy for abatement or reversal of judg-
ment.
REGULATION OF DAMS.
47. County commissioners to view, &c., on
notice.
48. may direct alterations, &c. To record
result of examination. Record to be evi-
dence.
4!). Upon neglect of owner to repair, &c., com-
missioners to remove. Dam not to be re-
built, except, &c.
50. If dam cannot be removed, commissioners
to raise, &c.
51. Costs, &c., by whom paid.
52. Jurisdiction of S. J. C. to compel altera-
tions, &c.
REPAIRING AND REBUILDING MILLS.
53. Repair of mills owned by several persons.
54. Meeting of proprietors, how called.
55. Notice thereof, how served and returned.
56. 3Iajority in interest may decide.
57. Each proprietor liable.
58. Remedy by lieu on rents, or action.
59. Guardian of proprietor may act lor him.
60. Apportionment between tenant and rever-
sioner.
01. Case of a mortgagee in possession.
62. tenant in tail.
63. How suits between proprietors brought.
64. Chapter not to affect agreements, &c.
DUTIES AND COMPENSATION OF :*IILLERS.
65. jMillers to keep scales, &c., and weigh
grain, if required, under penalty.
06, AVhat toll allowed.
Mills and dams
on streams not
navigable.
R. S. 110, §1.
5 Pick. 292.
22 I'ick. 312.
Zi Pick. 219.
Not allowed to
injury of exist-
ing mill or mill-
Bites.
R. S. 116, §2.
1841, 18, § 1.
11 Mass. 533.
17 Mass. 289.
10 Pick. 357.
22 Pick. 312.
12 Mot. 149.
8 Cush. 117.
ERECTION AND REGULATION OF MILLS.
Section 1. Any person may erect and maintain a water mill, and a
dam to raise water for working- it, upon and across any stream not
navigable, npon the terms and co^nditions, and subject to the regulations,
hereinafter expressed.
11 Met. 570. 12 Met. 149. 6 Cash. 305. 8 Cush. 115, 553. 2 Gray, 407.
Sect. 2. No such dam shall be erected to the injury of any mill lawfully
existinfr, either above or below it, on the same stream, nor to the injury
of any^mill-site on the same stream, on which a mill or inill-dani has
been lawfully erected and used, unless the right to maintain a mill on
such last-mentioned site has been lost or defeate.l by abandonment or
otherwise; nor shall any mill-<lam be hereafter erected or raised to the
injury of any such mill-site which has been occujiied as such by the
owner thereof: j^rovided, that such owner within a reasonable time after
/
Chap. 149.] erection and regulation of mills. 755
commencing such occupation completes and puts in operation a mill for
the working; of which the water of such stream shall be apjjUed ; nor
shall any mill or dam be placed on the land of any person, without such
grant, conveyance, or authority, from the owner, as would be necessary
by the cummon law if no provision relating to mills had been made by
statute. '
Sect. 3. The height to which the water may be raised, and the length iicig;iit of dam.
of time, or [leriod, for which it m-iy be kept up in each year, shall be lia- la'^iet'iiaHO.
ble to be restricted and regulated by the verdict of a jury, r Gray, san. 4Cusii. m».
Sect. 4. A person whose land is overflowed or otherwise injured by p^^al^^^s liow
such dam, may obtain compensation tlierefor u]ion his comjdaint l>efore recovw-cd.
the superior court for the county where the land or any part thereof jflio.'sr/s a. '
lies: pi'ovidec?, that no compensation shall be awarded for damage sus- .v-.J'J''';,;'-.''*"
tained more than three j-ears before the institution of the complaint. a Met! 339!
4 Met. 42(1.
12 Mot. 1S2, 188. 4 Cusll. 152, IGl. 0 Cusll. 170,303. 7 Gray, 390. ]0 Met 207
2 Gush. HI. 5 Cusll. 0 !7. 4 Gray, SSI. 13 Gray, US. n Met. 570.
Sect. 5. The complaint shall contain such description of the land Subst.anee of
alleged to be flowed or injured, and such statement of the damage, that J""s.''n",*§ 5.
the record of the case will show with sufficient certainty the matter ui'iek. 02.
heard and determined therein.
Sect. 6. The complaint may be filed in the court in term tune, or in Notice to mill
the clerk's office in vacation, and in either case notice thereof shall be K"Xnfi,§§c,7.
given to the owner or occupant of the mill, by delivering to him, or 0 Cush. in.
leaving at his dwelling house, an attested co])y of the com])laint; or if
he is not found witliin the state and has no dwelling house therein, by
leaving such copy at the mill in question fourteen days at least before
the complaint is to be heard; or the coni]>lainaut may fourteen days at
least before the .sitting of the court to which his complaint is brought,
cause the owner or occupant of such mill or dam to be served with an
attested copy of the complaint, by delivering or leaving such cojiy in
like manner as when the complaint is filed as aforesaid.
Sect. 7. The notice shall be served by any officer authorized to hy whom
serve any other civil process between the same parties. K."^Ji^ no, § 7.
Sect. 8. The i-espondent may answer in bar, that the complainant Ansiverof
has no estate or interest in the land alleged to be flowed or injured, or k.''s?iu™§'8.
that the respondent has a right to maintain his dam for an agreed jirice, 4 Greoni. :!>2.
or without any compensation, or any other matter A\liich may show j-, jiagj; sg^;
that the complainant cannot maintain the suit ; but he shall not answer j^ jj^j ^i^'''
that the land described is not injured by the dam. 7Giay,29ij. 4Gi-ay',Wi.
Sect. 9. If any plea or answer is tiled by the respondent, the repli- Furtueriiirad-
cation and other pleadings, and the trial of the issue, whether of law or k^'^.Tio.T'j''
of foct, shall be conducted in like manner as in actions at the com- 10 Met. .37.
mon law.
Sect. 10. If an issue is decided in fixvor of the respondent, or if the judgroent for
complainant becomes nonsuit or discontinues, the respondent shall be cy^J""''™''
entitled to his costs, to be taxed as in civil actions. k- S- nn, § 10.
Sect. 11. If the owner or occupant of tlie mill or dam after due no- for compiaia-
tice is defaulted, or oflers no legal objection, or an issue is decided in k1 s. n"^"ii.
favor of the complainant, the court shall issue a warrant for a jury to See §15.
hear and determine the matter of the complaint.
Sect. 12. Either party may appeal as in other civil actions, but if Appeal and pro-
tlie judgment of the supreme judicial court is in fovor of the complain- 5'">l!"nfr, § 12.
ant, the cause shall be remitted and the court shall ]n-oceed therein in i^o. '*''ll'*' *'
like manner as if the Judgment had been rendered in that court.
Sect. 13. The warrant shall be directed and served, and the jurors Warrant for
shall be drawn, summoned, and returned, in the manner provided in howdr'awTi.'^&c
chanter forty-three with respect to a iurv returned on the comiilaint of n. .s. ii6,§ 13.
1 •' . 1 1 ^1 1 • i i- ■ 1 - 1 T ..1 • 1 11 2 Cusll. 340.
a person aggrieved by the laying out 01 a highway, and the jurors snail 4Gray, ssi.
be required to attend under a like penalty.
756 ERECTION AND P.EGULATION OP MILLS. [ChAP. 149.
Proceediaffs. Sect. 14. All the proceedings for supplying a defieiency of jurors,
^Cush'wo '^' """^ '^^ other proceedings in the cnse, shall be substantially the same as
4 Gray,' 081. are provided in sai<l cha]iter forty-three.
Triiii may be in Sect. 15. If the parties SO agree by writing filed in the case, the
court, &c. ^j.j^j ij-,,j^y ],,g jjj |.j^y court ^efore a jury as in other civil actions, and in
such case, if either party requires it, the jury shall view the premises
alleged to be injured, subject to such regulations and terms as the court
may presci'ibe.
Damng-es, how Sect. 1G. The jurj', in estimating the damage to the land of the
estimated. ^^ complainant, shall take into consideration any damage occasioned to his
•.; Cush. 3i(). other land b}^ the dam, as well as the damage occasioned to the land
overflowed ; and they shall also allow by way of set-oft' any benefit oc-
casioned by such dam to the comj)lainant, in relation to his lands.
Verdict for re- Sect. 17. If the jury find by their vei'diet tliat the complainant is
K °s'nlf« in "'^^ entitled to recover any damages, and it is allowed and recorded,
loiiet. sii, ■jur. judgment shall be I'endered for the respondent.
for eompiaiu- Sect. 18. If they find that the complainant is entitled to recover
R*'! iir s 1- il^'iTiages, they shall assess the amount of damages sustained within
4 Gray, 5di. '' three years ne.xt preceding the institution of tlie complaint, and to the
time of rendering the verdict ; and if the verdict is allowed and re-
corded, the complainant shall have judgment and execution.
Jury to fix Sect. 19. If it is alleged in the complaint, that the dam is raised to an
hoiijiit of dam, j„i|-eagon^Ijle height, or that it ought not to be kejit up and closed dur-
R. s. 110, § is. iiio- the whole year, the iury shall decide how much, if any, the dam
19 ATpt 14*' 14') •/'if*' '•.''
7'Gray', -z'Sa. ' shall be lowered, and also whether it shall be left open any jiart of the
year, and if any, what jiart, and shall state such decision as a part of
their verdict.
to assess an- Sect. 20. They shall also ascertain and determine, by their verdict,
aiid'aiso''a°siim what sum, if any, to be paid annually to the comiilainant, woulil be a
in gross. ^ just and reasonable Compensation for the damages that may be there-
17 Pick. I'sii. ' after occasioned by the dam, so long as it is used in conformity with
^„*li'': ''"''; the verdict; and also what sum in gross would be a iust and reasonable
10 Met. '.if 17. • ,. 11 , 1 ,. • 11 1 X. 1
2 Gr.ay, 4ijr. Compensation tor all damages thereatter occasioned by such use ot the
7 Gr.ay, -jao. clam, and for the right of maintaining and using the same forever in
manner aforesaid.
Compiain.ant Sect. 21. The complainant in such case, at any time within three
take the sum months after the verdict is allowed and recorded, may elect to take the
in ^'ross. sum SO awarded in gross for the right to maintain and use the dam for-
24 Pick. 2%. ' ever, instead ofreceivingtheannu.il compensation therefor ; and if he
2 siet. 507. makes such election, he shall within said three months cause the same
to be entered on the record of the case in the clerk's office.
If not paid, re- Sect. 22. The owiier or occupant of the mill or dam shall, within
have'no benefit, three months after such election is thus entered, ]iay to the complainant,
until, &c. ^ or secure to his satisfaction, said sum with interest from the time of the
12'Jiet. i4ii.~ ' verdict. After the expiration of said three month.s, such owner or
4 Cush. 241). occupant shall lose all benefit of the ])rovisions contained in this chap-
ter, until )iayincnt of said damages and interest.
Complainant Sect. 2.^. If tlie com)ilaluant does not within said three months
d!ama|c8,'7n-""' cause such entry of his election to be made on the record, he and all
Btead,°&c. persons claiming under him shall be entitled to demand and receive
7 Gray, 2'»o.""' fr.'-m whoever shall be the owner or occujjant of the mill, the annual
com]iensation so established by the jury, so long as the dam is kept up
and maintained; unless the sum is increased or diminished upon a new
complaint as hereinafter pro%aded.
shall have Sect. 24. The ])erson entitled to receive said annual compeus.ation
inin,*&"°*^"'^ °° or gross damages shall have a lien therefor from the time of the insti-
_K. s'. uii, §23. tution of the original complaint, on the mill and mill-dam with their
ray, 40/. apjnirtenaiices, and the land under .and adjoining the same and used
therewith : 2}>'0vided, that such lieu shall not extend to any sum
Chap. 149.] erection and regulation of mills. 757
,§=4.
.505.
dtie more than three years before the commencement of an action
therefor.
Sect. 25. Such person may maintain an action of contract therefor Action there-
in the superior court, against the person who owns or occupies the mill !vh(i'm"to"be
when the action is brought ; and shall therein recover the whole sum iirougut.
due and unpaid for the throe years then last past, whoever has owned aJiVt. 505."
or occupied the mill during that time ; and he shall be entitled to full f '*!?*; ''irSi-
Till T 1 in ^^ iU't. 359.
costs, although the sum recovered does not amount to twenty dollars. r, jict. 1-2.
OCush. iro,303. 2 Gray, 407. 4 CubIi. 245.
Sect. 26. The execution issued on such judgment may at any time rrtmiscs may
within thirty days after judgment be levied on the premises so subject cuWon.™'''^'^
to the lien ; and the oflicer may thereupon proceed to sell the same, k. s. ho, § 25.
or so much thereof as is necessary to satisfy the execution and all
cliai'ges of levying it ; and he shall proceed in m:iking such sale in like
manner in all respects as is provided with regard to the sale on execu-
tion of a right to redeem real estate mortgaged.
Sect. 27. Such sale shall be valid and eifectual against all ]iersons Saic, howfar
claiming the premises by any title that has accrued within the time Jf.'^s'"fi;' § co.
covered by the lien.
Sect. 28. Any person entitled to the ]>remises so sold may redeem Kishtofrc-
the same at any time within one year after the sale, upon ])aying to the i™s'"iicl'§ 27.
purchaser or the person holihng under him the sum i>aid therefor, with
interest at the rate of twelve jier cent, a year.
Sect. 29. The provisions of this chapter shall not aflect the right to Existing miUs
keep up, maintain, and use, any water-mill and mill-dam, now lawfully !',fl[Ietc™exccpt
cxistincr, except as is herein exi)ressly rirovided : but when the owner or &"■
1 i* I It S 11() 6 2ft
occup.ant of a mill or dam makes any material change by raising the ir'ji'ass.Vc. "
dam, or alterino; the machinery, or the manner of iisinij the water, so as ??!?*; ■^S'
to cause additional damage to the land of another, it shall be considered
as a new mill or dam, in respect to such additional damage, and the
remedy and ])roceedings to recover compensation therefor shall be sub-
stantially such as are provided in this chapter respecting a new dam.
Sect. 30. The court to which a verdict is returned may set it aside New trial,
for any sufficient cause, and grant a new trial to be had upon a new ' ' '^ '
warrant or otherwise as the case may require.
Sect. 31. No action shall bo sustained at common law for the re- Action at com-
covery of damages for the erecting, maintaining, or using, any mill or 1;.™, 'no]§3o.
mill-dam, except as is provided in this chai)ter. ""12 Met. h?."^ 5c"us1i.gi2. n'jiass.'sci. '
Sect. 32. The party prevailing; in any suit under this chapter shall Costs.
be entitled to his full costs, unless where it is otherwise expressly 2 jie't. so'o.
provided. ~ «'•■>>'> 40".
Sect. 33. The court shall award a reasonable compensation to the compensation
1 • 1 . .1 . • 1 T . .1 «,. 1 i ii for services at
person who presitles at the tnal, and to the omcer who executes the trial, &c.
warrant ; wliich with the ]iay of the jurors and other like charges shall be i'- S- n'^' 5 32.
advanced by the complainant, and taxed and allowed in the bill of costs.
Sect. 34. When either party is dissatisfied with the annual compen- New complaint
sation establislied by a jury, either under the provisions of this chapter JjJt'^'^'o'ssdam-'
or of the laws heretofore in force, a new complaint may be brought for ages assessed
.1 . T . ,. .1 /> I- ...._, ^ i oulv once in ten
the increase or diminution thcreoi, or lor ascertaining the gross amount y,.aVs.
of the damac;es ; and all the procee<linKS shall be conducted snbstan- }^-^- ^^^'li^-
. ,, . , ^ , „ 1 . , , . f^ „ • . I !•..•' Mass. 203.
tially m the manner beiore jirovuled in the case 01 an original complaint: 17 Mass. 79.
prodded, that when a com])lainnnt has declined to accept gross damages i.'cush?2bo
awarded him, no jury shall again determine the amount of gross dam-
ages until the ex]iiration of ten years thereafter.
Sect. 3.5. Such new complaint maybe maintained liy and against who may
either of the parties to the original suit, or by and against any person i.'™'*?!"; § 34.
lawfully holding under either of them.
Sect. 36. No such new coini)hiint shall be brought until the expira- when to be
tiou of one month after the payment of the then last year has fallen due ; ™"°
61
758
ERECTION AND REGULATION OF MILLS. [ChAP. 149.
Tender.
R. S. lie, § 35.
2 Met. 508.
Mill owners
may tender
f^re.ater com-
pensation, &c.
E. S. 110, § 30.
2 Met. 50.-i.
7 Gray, 207.
Land owner
may oiler to ac-
cept less, &c.
li. S. 110, § 37.
2 Met. 508.
7 Gray, 207.
Offer, by or to
whom made,
&c.
K. S. 110, § 38.
Effect of agree-
ment, if signed
and recorded.
K. S. 110, § 39.
Verdict not to
bar new com-
plaint, &c.
K. S. 110, §40.
10 Mass. 72.
Respondent
may make ten-
der in court,
&c. Costs.
R. S. 110, §41.
7 Gray, ISO, 207
.Judgment upon
acceptance
of tender. Ac-
ceptance may
be for past or
future damages.
R. S. 110, § 42.
Separate and
joint owners of
lands may join
iu complaint
and have sepa-
rate damages.
18*1, SO.
and either party may within tlie said month make an offer or tender to
the other as hereinafter provided.
Sect. 37. The owner of the mill or dam may within said month
offer in writing to tlie owner of tlie land any increase of said annual
compensation ; and if the owner of the land does not agree to accept
the same, but brings a new complaint to obtain an increase thereof, he
shall pay tlie costs, unless he obtains a verdict for a greater annual com-
pensation than was so offered to him.
Sect. 38. The owner of the land may within said month offer in
writing to the owner of the mill or dam, to accept any smaller sum than
that established as said annual compensation ; and if the owner of the
mill or dam does not agree to pay such reduced compensation, but
brings a new complaint to obtain a diminution thereof, he .shall pay the
costs, unless the annual compensation is reduced by the verdict to a sum
less than that so offered to him.
Sect. 39. Such offer may be made by or to the respective tenants
or occupants of the land, and of the mill or dam, in like manner and
with like effect as if made by or to the respective owners ; except that
no agreement founded thereon shall bind said owners unless made with
their consent.
Sect. 40. If the offer so made by either party is agreed to and ac-
cepted by the otlier, it shall establish the annual compensation to be
thereafter paid, in like manner as if it had been established by a verdict
and judgment upon a new comjilaint: 2)rovided, that a memor.andum of
such offer and acceptance, and of the agreement, is made and signed by
the respective parties, or by persons duly authorized by them, and filed
and recorded in the clerk's office of the court in which the former judg-
ment was rendered, with a note of reference on the record of the foiiner
judgment to the book wliere the agreement is recorded.
Sect. 41. If upon a complaint by the owner of the land the jury
decide that he is not entitled to any annual compensation, the judgment
thereon shall be no bar to a new complaint for damages alleged to have
arisen after the former verdict, and for compensation for damages there-
after sustained.
Sect. 42. In every original comjilaint brought by the owner of land
alleged to be injured by a mill-dam, the respondent may bring into
court and there tender any sum that he deems proper to be paid to the
complainant for the damages incurred up to the time of such tender;
and may also offer to pay any certain annual compensation for the dam-
age tliat may be thereafter occasioned liy the dam in question ; and if
the complainant does not accept the same, with his costs up to that
time, but proceeds in the suit to recover greater damages or compensa-
tion, he shall, unless he recovers greater damages or greater annual com-
pens.ation than was so offered, be entitled to his costs up to the time of
tlie tender, and the res[ioiident shall be entitled to recover his costs
afterwards.
Sect. 43. If the complainant in the ease mentioned in the preceding
section consents to accept the amount so offered for the past damage
and future annual compensation, he shall have judgment accordingly,
and also for his costs up to that time, and the judgment shall have the
same effect as if it had been rendered upon the verdict of a jury ; or
the complainant may accept either the sum tendered for past damages,
or the offer for future annual compensation, and proceed to trial on the
residue of the complaint under tlie same lialiility for costs.
Sect. 44. Two or more persons suffering damage from a mill-dam,
whether jointly or separately interested in the lands injured, may join
in a complaint under this chapter; and their cases may be heard
before the same jury, which maj' assess joint or several damages as
the interest and title of the complamants may require; and judg-
Chap. 149.] regulation of dams, 759
ment and execution for costs and damages shall be had in conformity
thereto.
Sect. 45. The provisions of chapter one hundred and twenty-nine, Pleas in abate-
in respect to pleas in abatement, shall be applicable to complaints under Slmts!'^""'^"
this cliapter; and when new defendants are summoned in pursuance of 1839, 151, §5.
said provisions, the plaintiiT may have a verdict against such of the de-
fendants as he proves to be liable, although he fails as to the rest.
Sect. 46. No comi)laint for flowing sliall be abated by reason of the Compiaintnot
death of any jjarty, but the same may be prosecuted or defended by the deatfrof parties,
surviving complainants or respondents, or the executors or admiuistra- Kemody for
tors of the deceased ; and if any such complaint is abated or otherwise ?cvcr"iofjudg-
defeated for any matter of form, or if after verdict for the complainant S'^g*',,- ,,„
the judgment is reversed for error, upon a certiorari or otherwise, the ' '
comjilainant or any person claiming from, by, or under, him, may bring
a new complaint for the same cause, at any time within one year after
the abatement or other determination of the original complaint, or after
the reversal of the judgment ; and may ujion the new complaint re-
cover all damages sustained diiring the three years before the institu-
tion of the first complaint, or at any time afterwards.
EEGULATIOW OF DAMS.
Sect. 47. The county commissioners, on application made to them county com-
in writing by any persons owning mill or other ]iroperty liable to ?Se^,v&c'''on''
destruction or damage by the breaking of a mill or reservoir dam, or notice.
on application of the maj-or and aldermen or selectmen of any city or ^^^'^^''S'-
town on account of the liability of damage to any roads or bridges
therein fi'om the same cause, shall, after notice to the adverse party
of the time and place, view and thoroughly examine such dam.
Sect. 48. If, in the judgment of the commissioners, the dam is not may direct ai-
sufficicntly strong and substantial to resist the action of the water To"rcTOrd?e-'
under any circumstances which may reasonably be sup)iosed to exist, ^uit of cxami-
they shall <letermine and direct what alterations or additions are re- toteCTideu™'!
quired to make it permanent and secure; and shall give a written issi.sar, §1.
direction to the owner thereof to make such alterations or repairs
witliin .a reasonable time ; and they shall record the result of such
examination, which, if the owner of the dam had an opjiortunity to be
hearil before them, shall be admissible evidence in the trial of any issue
involving his lial)ility.
Sect. 49. If the owner of a dam thus examined and adjudged to Upon neglect of
be unsafe, refuses or neglects to make such alterations, additions, or &™commiB-"''^'
repairs, as tlie commissioners order, they shall, on being notified of such siouers to i-c-
neglect or refusal by the party making application, cause such dam, or not to be r™
such parts tliereof as they may deem necessaiy for the safety of prop- ^"''*' <^xeopt,
ertj', roads, or bridges on the stream below, to be removed ; and after \>di, 327, § 2.
such removal, no structure shnll be erected except in compUance with
the requirements of the commissioners.
Sect. 50. If, when a dam is adjudged to be unsafe under the pro- if dam cannot
%asions of the three preceding sections, the pond caused by the dam is TOmmissionere
so filled with water that the dam cannot be removed without danger toraise^&c.
to mill and other property, and, upon notice, the owner neglects to ■ ''S •
raise or otherwise alter and make it safe, the commissioners shall cause
it to be forthwith raised, or otherwise altered and made safe, at his
expense.
Sect. 51. If the commissioners order no alteration of or addition Costs, &c., by
to a dam, the cost or expense of an examination under section forty- ]*^4™o?"'t'4
seven shall Ije jiaid by the ]>arty making the ajiplication ; otherwise the
expense shall be paid by the owner ; but in all cases where the party
making application is the owner of the dam, the expense shall be paid
by him.
760 REPAIRING AND REBUILDING MILLS. [ChAP. 149.
Jurisdiction of Sect. 52. Tlie supreme judicial court shall have jurisdiction in
pci'aiteratiou"" Gqwitv, and may compel the owner of any dam to make all alterations,
&c. additions, and roT)airs, ordered luider the five iireeedinsf sections, and
may make all judgments and decrees necessary to carry such orders
into eflect.
1857, 163.
EEPAIRING AND REBUILDING MILLS.
Repair of mills Sect. 53. When a mill owned by several jiersons as joint tenants
owned by sev- qj. tenants in common, or the dam or appurtenances of such mill, need
oral persons. . , , m^ • , , • x. i ^i • x
K. s. lie, § 44. to be re]3an-ed or rebuilt in whole or in part, and the proprietors
i/iiassfiiss. ^'^ 'lot ''11 agree to join in repairing or rebuilding the same, tlie
greater part in interest of the proprietors may cause the work to
be done at the expense of the whole, in proportion to their respective
interests.
Meeting of pro- Sect. 54. One or more of the pro]ivietors may call a meeting of the
raifed"' """^ whole of them, to be held at the mill, to consult and agree upon the
li. s. 116, §45. measures to be taken for repairing or rebuilding the same, by a written
notice signed by the persons who call it and addressed to each of the
other ])roprietors, setting forth that the mill in question needs to be
repaired or rebuilt, and that a meeting of the ]iro])rietors thereof will
be held at the mill on a certain day and hour mentioned in the notice,
to consult and agree u]ion the measures to be taken for that purpose,
and requesting the attendance of tlie proprietor at such meeting.
Notice thereof, Sect. 55. "The notice shall be served by any oilieer authorized to
reTurued'."'^ '""' Serve civil process between the same parties, by delivering an attested
R. s. no', §§ 46, copy thereof to the jjerson to whom it is addressed, or by leaving such
*^' copy at his dwelling-house or last and usual place of abode, not more
than thirty nor less than seven days before the day appointed for the
meeting, and his return, specifying the persons on A^-hom he served it
and the time and manner of the service on each, shall be deemed suf-
ficient evidence thereof.
Majority in in- Sect. 56. At the meeting -so called, or any adjournment thereof,
cide**' '"'*'"''^" the greater part in interest of all the proprietors of the mill may take
K. s. 116, § 48. measures to cause the mill, or the dam or appurtenances thereof, to
be repaired or rebuilt, as they shall judge most for the interest of all
concerned therein.
Each proprietor Sect. 57. Eacli pro]irietor shall, upon demand after the work is co_m-
kI's'''ii6, § 49. pleted, pay to the proj)rietors by whom it has been advanced, with
interest from the time of the advance, his just and equal jiart of the
charge and expense of .such repair or rebuilding, in ]n-oportioii to his
share or interest in the mill.
Remedy by lien Sect. 58. The proiirietors who advance the money so expended
™.^™*S' <"■ "«■ shall have a lien therefor on the rents and profits of the mill, and may
R.s. 116, §50. retain so much thereof as belongs to any proprietor indebted to them
for such advance, to be applied to the payment of his debt ; or they may
maintain a suit for the debt, or for as much of it as shall not be paid
out of the rents and ]irofits.
Guardian of Sect. 59. When a proprietor is under guardianship, as a minor or
proprietor may otherwise, his guardian may act for him in calling and attending a meet-
ii. b?iio, §51. inf of the proprietors, and may there vote and do all such other acts in
the premises as the ward could do if competent to act for himself; all
which shall be binding on the win-d .'ind his estate.
Apportion- Sect. GO. When part of the mill is held by one person as tenant for
teulmt'and'rT- li^^ or years, with remainder or reversion to another, the sum due for
ver'sion'er. the repairs and other exjienses on that ])art of the mill shnU be ajijior-
K. s. iio,§53. jj^jj^gj Q,j ^ji^. tenant for life or years and the remainder-man or rever-
sioner, in proportion to the value of their respective interests in the
premises ; and the party to whom the money is due from such remain-
der-man or reversioner, shall have a lien on the rents and profits belong-
Chap. 150.]
UENS ON BUILDINGS AND LAND.
(61
ing to him after his estate comes into possession, if not sooner paid,
notwithstanding any limitation by lapse of time.
Sect. 61. Every mortgagee in possession shall be considered as a Case of amort-
proprietor for all the purposes of this chajjter; but the mortgagor, if the gjK<^'' "> posses-
action is brought against him before his right of redem])tion is fore- U. s. lie, § 54.
closed, shall also be liable for all sums so due on account of his share of
the mill, so far as the same are not recovered from the mortgagee. All
sums ]>aid on this account by the mortgagee shall be considered and
allowed, between him and the mortgagor, as so much paid for repairs
or improvements of the mortgaged ]5remises.
Se( T. G'l. Eveiy tenant in tail of an}- part of a mill shall for all the tenant in tail.
j)urposes of this chapter be considered as the proprietor thereof in fee ^- *'• "*'• ^ ^^■
simple.
Sect. 63. All sums due from one proprietor to another for moneys now suits bc-
advanced by force of this chapter, may be recovered in an action of {o™'b,.ouyhT
contract; and when two or more proprietors are so indebted, the cred- U- s. iio,°§50.
itor or creditors may maintain a suit in equity in the sujireme judicial '^''' "
court against any two or more of them, in which suit the court shall
determine what amount is due from each of the debtors severally, and
shall award judgment and execution against each of them accordingly;
and may make all such orders, decrees, and judgments, and issue such
process as may be necessary and proper to carry into effect the pro-
visions of this chapter. The court shall apportion the amount so recov-
ered among the jilaiutiffs in the suit, if more than one, according to
their resj)ective rights.
Sect. 04. Nothing contained in this chapter shall in any way affect Chapter not to
any contract or agreement by or lietween the proprietors of any mill as nJ|fnJs°ir™'
to the repair or rebuilding thereof. if- s. no, § 58.
duties and COirPENSATION OF MILLEES.
Sect. 6.5. Every miller occupying and using a grist mill shall be pro- Jiiiiera to keep
vided with scales and weights, or a vibrating steelyard, to weigh corn, wcMi' *raio!°if
grain, and me.il, to and from the mill, if required ; and if he neglects to requireJi, under
keep himself so provided, or refuses so to weigh corn, grain, or meal, \i^i, m, § an.
when required, he shall for every such neglect or refusal foii'eit and pay ^'^~' >"^-
to any person who sues therefor a sum not exceeding five dollars, to be
recovered in an action of tort.
Sect. 66. The toll for grinding any sort of grain shall not exceed '^'bat tou ai-
o o J o lowed
one-Sixteenth part thereof. k. s. iio, § co.
CHAPTER 150.
OF LIENS ON BUILDINGS AND LAND.
Section
1. Party furnishinp; labor and materials to
have lien on building, &c., except, &c.
2. Lien for material not to attach without no-
tice to owner of Ijind if, &c.
3. xiot of force against existing mortgage.
4. not to attach if owner of building, &c.,
gives notice.
5. dissolved unless party file statement of
account, &c., with city or town clerk in
thirty days. Record.
6. Inaccuracy in statement not to invalidate,
imless, &c.
64* 96
Sectiox
". Lieu dissolved unless suit commenced in
niufty days.
8. may be enforced by petition to superior
court.
9. before police court and justices, &c., if
claim docs not exceed SIOO.
10. Petition may be inserted in writ.
11. to contain brief statement of contract, &c.
12. Parties may amend.
13. Any number who have labored on same
building may join in petition.
H. Xotice to owner, and to other creditors.
15. to absent parties, &c.
762
LIENS ON BUILDINGS AND LAND.
[Chap. 150.
Section
l(i. Further notice.
17. Claims miiy be proved imd contested.
IS. tracts may be tried by jury.
19. Claims not payable may be allowed.
20. for part perlbrmanee of contract.
21. Sale of premises, when ordered.
22. I'art may be sold, if sufficient.
2.3. Notice of sale.
24. liight of redemption.
25. rroceeds of sale, how distributed.
26. may be brought into court, &c.
27. surplus, how disposed of. Succescivo
orders of distribution.
28. Prior atLiching creditor preferred. Pro-
portion of proceeds held, &c.
20. Such proportion to be applied on execution.
30. Subsequent attachment to be satislied after
lien.
Section
.31. Attachment intervening between two liens.
3'J. Kights of attaching creditors and of per-
sons having liens, as between thi'msolves.
3.3. Debtor having an estate less than fee sim-
ple, &c., lien to bind bis interest.
.31. Lieu m.iy be enforced against heirs or as-
signs.
35. by executors or administrators.
3f». Appeal allowed to S. J. C.
37. Suits commenced by ono creditor may be
prosecuted by another when, &c.
oS. commenced prematurely, may be prose-
cuted, &o. Costs.
30. Costs in other cases,
40. Action at iinv not barred.
41. Dircharge of lien, how executed.
42. I'etiticu to be indorsed.
Party furnish-
ing labor and
materiiils to
have lien on
building, &c.
1852, 307, § 1.
1855,431, § 1.
20 Pick. 542.
13 Met. 153.
4 Cush. 53fi.
SCush. 110,122.
11 Cush. 2.38,
308. 1 Gray, 570.
3 Gray, 2;i"3.
4 Gray, 289.
6 Gray, 533.
7 Gray, 429.
Lien for mate-
rial not to at-
tach without
notice.
1855,431,5 1.
not of force
against existing
mortgage.
1852, 307, § 1.
5 Cush. 124.
not to attach
if owner of
building, itc,
gives notice.
1855, 431, § 4.
dissolved un-
less party file
statement of ac-
count, &c., with
city or town
clerk in thirty
days. Ilecord.
mw, 431,§ 2.
6 Gray, 531.
13 Gray, 100.
Inaccuracy in
statement not
to invalid.ate,
unless, itc.
1865, 431, § 3.
Lien diasolved
Section 1. Any person to whom a debt is due for labor performed
or furnished, or for materials ftirnished and actually used, in the erection,
alteration, or repair, of any buiMing or structure upon real estate, by
virtue of an agreement with, or by consent of the owner of such build-
ing or structure, or any ])erson having authority from, or rightfully
acting for, such owner in ]n'ocuring or furnishing such labor or materials,
shall have a lieu upon such building or structure, and upon the interest
of the owner thereof in the lot of laml upon which the same is situated,
to secure the payment of the debt so due to him, and the costs which
may arise in enforcing such lien under this chapter ; except as is pro-
vided in the following sections.
Sect. 2. Such lien for materials furnished shall not attach unless the
person furnishing the same before so doing gives notice to the owner of
the ])ro]ierty to be aflected by the lien, if such owner is not the pur-
chaser, that he intends to claim such lion.
Sect. 3, Such lien shall not avail or be of force against any mort-
gage actually existing and duly recorded prior to the date of the contract
nniler which the lien is claimed.
Sect, 4, The owner of any such building or structure in process of
erection or being altered or repaired, other than the party by whom or
in whose behalf a contract for labor and materials has been made, may
prevent the attaching of any lien for labor thereon not at the time jier-
forined, or materials not then funiishcil, by giving notice in writing to
the person jterforming or furnishing such labor, or furnishing such mate-
rials, that he will not be responsible therefor.
Sect. 5, Such lien shall l)e dissolved unless the person desiring to
avail himself thereof, within thirty days after he ceases to labor on, or
furnish labor or materials for, such building or structure, files in the office
of the clerk of the city or town in which the same is situated, a state-
ment of a just and true account of the amount due him, with all just
credits given, together with a descrijition of the pro]ierty intended to
be covered by the lien, sufliciently accurate for identification, with the
name of the owner or owners of the property, if known ; which certifi-
cate shall be subscribed and sworn to by the ])erson claiming the lien,
or by some one in his behalf, and shall be recorded in a book kept for
the purpose by the clerk of such city or town, who shall be entitled to
the same fees therefor as for recording mortgages of equal length.
Sect. G, No inaccuracy in such statement relating to the ])roperty to
be covered by the lien, if the projierty can he reasonably recognized, or
in stating the amount due for labor or materials, shall invalidate the
proceedings, unless it appears that the person filing the eertfiicato has
wilfully and knowingly claimed more than is his due.
Sect. 7. Unless a suit for enforcing the lien is commenced withiii
1
Chap. 150.] liens on buildings and land. 703
ninety days after the person desiring to avail himself thereof ceases to unless suit com-
Libor on, or furnish labor or materials for, such building or structure, "Xys."""""
the lien shall be dissolved. isss, 5j, § i.
Sect. 8. Tlie lien may be enforced by petition to the sujierior court Lien, iiow cn-
in the county where the building or structure is situated. Tlie jietition e'^|'^''i'i; c ,
may be filed in term, or in the clerk's office in vacation, and the date isai, ■■)«,'§ i.
of the filing shall be deemed the commencement of the suit. isss, 431, §5.
Sect. 9. When the amount of the claim does not exceed one hun- before police
dred dollars, the lien maybe enforced by petition to a justice of the Sm^dwRnot
peace, or police court; and such justices and courts shall liave like exceed sio".
power and authority within their jurisdiction as are herein conferred '*^-'' ■*''' 5 s-
upon the sujierior court, with like rights of appeal to the parties as exist
in other civil cases.
Sect. 10. The petition may be inserted in a writ of original sum- Petition may bo
mons, and be served, returned, and entered, as other civil cases. 185^ 431 "§ 5 "*'
Sect. 11. Whether filed as a petition, or inserted in such summons, to contain
the petition shall contain a brief statement of the contract on which it '™f Btatement
. i. * 1 1 101 ^ 1 - 1 1 • • .. T "' contract, &c.
IS tounded, and 01 the amount due thereon, with a description 01 the k. s. iir, §0.
premises subject to the lien, and all other material facts and circiim- '^ *'"*''• ^"*'
stances ; and shall pray that the jireini.ses may be sold, and the proceeds
of the sale be ajiplied to the discharge of the demand.
Sect. 12. The court may at any time allow either party to amend Parties may
his pleadings as in actions at common law. "™™':ii, §«
Sect. 1.3. Any number of persons who have actually perfonned Any number
labor or furnished labor or materials on one or more buildings or ctrue- "orwUm'^f'ame
tures upon ditferent lots of land, where the labor was performed for the building nmy
same owner, contractor, or other person, may join in the same petition ■i"!K")nr'f '/a'.""'
for their respective liens; and the same proceedings shall be had in i»m, 43i.
regard to the rights of each petitioner, and the respondent may defend
as to each petitioner in the same manner as if he had severally peti-
tioned for his individual lien.
Sect. 14. The court in which the petition is entered shall order Notice to own-
notice to be given to the owner of the building or structure, that he creditor's! """^"^
may appear and answer thereto at a certain day in the same term, or at i'-.?- "~. § '•
the next term, by serving him with an attested copy of the petition, with 5 cu'sii. 12!', 123.
the order of the court thereon, fourteen days at least before tlie time
assigned for the hearing ; and the court shall also order notice of the
fihng of the jietition to be given to all other creditors who have a lien
of the same kind upon the same estate, by serving them with a co2)y of
the last-mentioned order in like manner.
Sect. 15. If it appears to the court that any of the parties entitled to absent par-
to notice are absent or that they cannot probably be found to be served u'i's.'^nV, § 8.
with the notice, the court ma^', instead of the personal notice before 5 Cusii. in.
mentioned, or in addition thereto, order notice to all persons interested,
by iniblishing in some newspaper the substance of the petition, with the
order of the court thereon, assigning the time and place for a hearing,
or may order such other notice to be given, as may under the circum-
stances of the case be considered most proper and eftectual.
Sect. 16. If at the time assigned for the hearing it ajipears to the Further notic«.
court that any of the persons interested have not had sufficient notice J'cush'ial.*'
of the suit, the court m;iy order further notice to them, in such manner
as may be considered must proper and eflectu.al.
Sect. 17. At the time assigned for the hearing, or within such fur- claims may be
thor time as tlie court allows for that jniiiiose, every creditor having a f^ted. ™ ™"
lien of the kind before mentioned upon the same property, may ajipear !*■*•''%?-,'"•
and prove his claim, and the owner and e.ach of the creditors may eon- ■^ ' •
test the several claims of every other creditor, and the court shall hear
and deteiTninc them in a summary manner, either with or without a
jury, as the case may require.
764
LIENS ON BUILDINGS AND LAND.
[Chap. 150.
Facts may be
triefl by jury.
U. S. 117, § 11.
1S52, 314, § 2.
Claims not pay-
able may bt; al-
lowed.
K. S. 117, §12.
for part per-
formance of
contract.
K. S. 117, § 13.
a Cusli. I-'a.
11 Cush. 240.
Sale of prem-
ises, when or-
dered.
K. S. 117, § H.
Part may be
sold if suffi-
cient.
11. S. 117, § 15.
Notice of sale.
R. S. 117, § l(i.
See Ch. 103, §41.
Eight of re-
demption.
K. S. 117, § 17.
See Ch. 103.
Proceeds of
sale, how dis-
tributed.
H. .S. 117, § IS.
may be
brought into
court, &c,
•Successive or-
ders of distri-
bution.
K. S. 117, § 10.
surplus, how
disposed of.
li. S. 117, §30.
In-,:., 4:11, § 1.
1:1 Met. ir,:!.
S Cush. 122.
Trior attaching^
creditor pre-
1c,'r":l. Propor-
ti'n of proceeds
hcl I, &c.
U.S. 117, §21.
l«j, 431, § 1.
Sect. 18. Every material question of foct arising in the case shall
be submitted to a jury, if required by either party or thouglit proper
by the court ; and the trial shall be had nj)on a question stated, or an
issue framed, or otherwise, as the court may order. A juiy shall be had
before a justice of the peace, or police court, only as in other civil
cases.
Sect. 19. The court shall ascertain and determine the amount due ■
to each creditor who has a lien of the kind before mentioned upon tlie
property iii question; and every such claim due absolutely and without
any condition, although not then ])ay:ible, shall be allowed, with a rebate
of interest to the time when it would become jiayable.
Sect. 20. When the owner fiils to i)erform his jiart of the contract,
and by reason thereof the other ])arty without his own default is pre-
vented from completely jjerf'orniiiig his part, he shall be entitled to a
reasonable compensation for as much as he has performed, in propor-
tion to the price stipulated for the whole, and the court shall adjust his
claim accordingly.
Sect. '21. If the lien is established in favor of any of the creditors
whose claims are presented, the court shall order a sale of the property
to be made by any officer authorized to serve civil process between the
same parties.
Sect. 22. If part of the propcrtj- can be separated from the residue
and sold without damage to the whole, and if the value thereof is suffi-
cient to satisty all debts pi'oved in tlie case, the court may order a sale
of that part, if it appears to be most for the interest of all parties con-
cerned.
Sect. 23. The officer who makes the sale shall give notice of the
time and ])lace in the manner jirescribed in relation to the sale on
execution of a right of redeeming mortgaged lands, unless the court
orders a different notice to be given.
Sect. 24. Any interest in real estate so sold may be i-edeemed in
the manner provided in the case of a sale on execution of the right of
redeeming mortgaged lands.
Sect. 25. If all the claims against the property covered by the lien
are ascertained at the time of ordering the sale, the court may order the
officer to ]iay over and distribute the proceeds of the sale, after deduct-
ing .all lawful charges and expenses, to and among the several creditor.?,
to the amount of their rcsj)cctivc debts if there is sufficient therefor;
and if there is not sufficient, then to divide and distribute the same
among the creditors in proportion to the amount due to each of them.
Sect. 26. If all the claims are not ascertained when the sale is
ordered, or if for any other reason the court finds it necessary or ]iroper
to po.stpone the order of distribution, it may direct the officer to bring
the proceeds of the sale into court, there to be di.sjiosed of according to
the decree of the court; and if by reason of the claims of attacliing
creditons, or for any other cause, the whole cannot be conveniently dis-
tributed at once, the court may make two or more successive orders of
distribution, as the circumstances may require.
Sect. 27. If there is any surplus of the proceeds of the sale after
making .all the payments before mentioned, it shall be forthwith paid
over to tlie owner of the property ; but such surplus before it is so paid
over sh.all be liable to be attached or taken on execution, in like manner
as if it jiroceeded from a sale made by the officer on an execution.
Sect. 28. If the interest of the owner in the building, structure, or
land, is under attachment at the time of filing and recording the state-
ment of the account, the attaching creditor shall be jircferred to the
extent of the value of the buildings and land as they were when the
statement was recorded; and the court shall ascertain by a jury or
otherwiscj as the case may require, what proportion of the proceeds oi
Chap. 150.] liens o\ buildings and land. 765
the sale shall be hehl snltjoet to the attachment, as derived from the
value of the property when the statement was recorded.
Sect. "29. If the attacliing creditor recovers judgment he shall be Such propor-
entitled to receive on his execution the proportion of the proceeds held pHcd ou exc™-
subject to his attachment, or as much tliereof as maj- be necessary to *'""■ ^_
satisfy his execution, and tlie residue of the proceeds shall be applied in ' ' '
the same manner as if there had been no such attachment.
Sect. 30. If the interest of the owner of the pro]ierty is attached Suhsoquont at-
after the recording of the statement, the proceeds, after discharging all sntisfled after"
prior liens and claims, shall be apiilicd to satisfv the execution of such V,™o ,,- c „^
attaeiung creditor, in ukc manner as is provided in cliapter one liundred
and thirt\-three, in the case of two or more successive attachments or
seizures in execution of a right of redemption.
Sect. 31. If an attachment is made after the recording of such state- Attachment in-
ment, and if after tlie attachment anL.tiier like statement is recorded, {"eeatn^nenB
the creditor in the latter statement shall be entitled to be ]iaid only out K. S. iir,§w.
of the residue of the proceeds remaining after paying all that is due on
the demands, a statement of which is recorded before the attachment,
and satisfying the attaching creditor.
Sect. 32. When there are se^■eral attaching creditors, they shall as uijjiits of at-
bctween themselves be entitled to be paid according to the order of fioJs"fi,i'o'j're.r-
their attachments; but when several creditors who are entitled to the muis imviuy
lien provided for in this chapter have equal rights as between them- t,v".on'tiicin-
selves, and the fund is insufficient to pay the whole, they shall share it ?J''o'''';,- ,,r
equally in projiortion to their resiiective debts. ' ' '' ■^"
Sect. 33. If the person for whom the work is done, or materials are Debtor iiaWng
furnislied, has an estate for life, or any other estate less than ;i fee sim- ti'an'fee'simpie,
jile, in the land, or if the property at the time of recording the state- &c., Uon to wud
meiit is mortgaged, or under any other encumbrance, the lien before k. s. iir, §26.
provided for shall bind his whole estate and interest therein, in like j^^ji^*";^^
manner as a mortgage would have done; and the creditor may cause scush. 122.
the right of redemption, or whatever other right or estate the owner ^ "^' "^^
had in the pro|)erty, to be sold and applied to the discharge of his
debt according to the provisions of this chapter.
Sect. 34. If the person indebted dies or conveys away his estate or Lien may be en-
interest before the commencement of a suit on the contract, the suit may i,c^rsorns-
be commenced and iirosecuted asrainst his heirs, or whoever holds the ?i=".^-,,. , „,
estate or interest which he had in tiie premises at the time the labor or iKi.v+ii-'
materials were pertbrmed or furnished; or if a suit is commenced in his ^^'"sii. 133.
lifetime, it may be prosecuted against his executors, administrators,
heirs, or assigns, in like manner as if the estate or interest had been
mortgaged to secure the debt.
Sect. 35. If the creditor dies before the commencement of a suit, by executors
the suit may be commenced and prosecuted by his executors or admin- ?ors'. ""'"'* '*
istrators ; or if commenced in his lifetime, it may be prosecuted by them i'- *>■ i'"- § 2s.
as it might have been bj' the deceased if living.
Sect. 36. Any party interested in a suit brought under this chapter Appeal allowed
may a])peal to the sn])reine judicial court, from the final decree or judg- k. s'."ii7^'§29
ment of the superior court, as is prescribed in relation to other civil ism, s".
cases, and the cause shall be thereupon heard and determined in the
supreme judicial court, according to tiie provisions of this chapter.
Sect. 37. If it appears in any stage of the proceedings that tlie suit Suits com-
was commenced by the petitioning creditor before his right of action !JJ™Ho'r'2ay°be
accrued or after it was barred, or if he becomes nonsuit, or fails to estab- prosecuted by
lish his claim, the suit may be prosecuted by any otiier creditor having ac?'"^"^ wicu,
such lien, in the same manner as if it had been originally commenced I'- *>• ii7. § 3o.
by him, if the circumstances of the case are such that he might then, or
at any time after the commencement of the original suit, have com-
menced a like suit on his own claim.
766
MORTGAGES OF PERSONAL PROPERTY. [ChAP. 151.
Suits com-
mfiicod pri^ma-
tliri'ly may W
prosfcuti'ti, Are.
Costs.
K. s. nr, §31.
Costs in other
cases.
U. S. 117, § .32.
Action at law
not barrt-'d.
li. S. 117, § 33.
T)i8charj^o of
lion, how exe-
cnted.
1{. S. 117, § 35.
i-'otition to be
indorsed.
K. S. 117, §36.
SceCh.l-J3,§S0.
Ch. 1», §§ :iiK)3.
Sect. 38. If the suit i.s comnieneed by the jjetitioning creditor before
liis right of action accrues, liis chum may nevci-tliolcss he allowed, if the
suit is carried on by any other creditor as provided in the jueceding
section ; but he shall not in such case be entitled to costs, and lie may
be required to pay the costs incurred by the debtor, or a part tliereof,
as the court may deem reasonable.
Sect. 39. The co.sts in all other respects shall be subject to the dis-
cretion of the court, and shall be j)aid fi-oni tlie proceeds of the sale, or
by any of the parties in the suit, as justice and equity require.
Sect. 40. Notliing contained in this chapter shall be construed to
prevent a creditor in sucli contract from maintaining an action thei-eon
at the common law, in like manner as if he had no such lien for the
security of his debt.
Sect. 41. When a debt secured by such lien is fully paid, the cred-
itor, at the expense of the debtor, shall enter on the margin of the regis-
try where the statement is recorded, a discharge of his lien, or shall
execute a release thereof, which may be recorded where the statement
is recorded.
Sect. 42. All the regulations concerning the indorsement of origi-
nal Avrits shall ajiply to the iudorsemeiit of jJCtitions filed under this
chapter.
CHAPTER 151.
OF MORTGAGES, PLEDGES, AND LIENS UPON PERSONAL PROPERTY.
Sectios
1. Mortgag-cs of personal property to be re-
corded where, &.c.
2. Transfers, &c., of vessels, and of goods at
sea, &c., need not be recorded,
3. Town clerk to record mortgng'eB.
4. When mortg'af,''ed property redeemable.
5. Proceedings for its redemption and re-
covery.
6. Notice of foreclosure, how to be given.
7. to be recorded with mortj,Mgo, &c.
8. Kij^-^ht to x*edeem sixty days after notice.
PLEDGES.
9. Holder of plodg:o-may give notice, &c., to
be served and recorded.
10. If debt not paid in sixty days, pledge may
be sold.
11. Contracts not affected nor rights of pledges
limited.
LIENS Oy SHIPS AND VESSELS.
12. Lien on ships and vessels for labor per-
formed and materials furnished.
13. to be dissolved imless sworn statement
of demand, &c., is filed for record, &c.
Section
H. When ship is built in two places, &c. Inac-
curacy in description, &c., not to affect, &c.
15. Lien, how enforced.
IG. Petition, what to contain.
17. Amendments.
IS. Several claimants may join in the same
petition.
19. Claims in such case to be marshalled and
proceeds to be distributed. Proviso.
20. Liens on foreign vessels not affected.
other liens.
21. Party having lien may after demand peti-
tion a justice of the peace, Ac, for sale, &c.
22. Justice, &c., shall issue notice to show
cause. Service. Return.
23. Petition, if owner unknown.
24. Publication of notice, &c.
25. Order of sale. Disposition of procoeda.
20. Amount due, &c.
27. Appeal. Recognizance.
28. Costs.
29. Boarding-house keepers to have lien on
baggage, &c.
30. Rights of lien not restricted.
M<:irtgages of
piTsoual prop-
iiiv to be re-
corded, &c.
R. S. 74, § 5.
]s4i. 72, ^ 2.
IH Pick. 432.
1 Met. 43(i.
10 M.-t. 491.
It Met. 2()0, ."104.
'iCush. 217,298.
12 Cush. 109.
Sectiox 1. Mortgnges of personal property shall be recorded on the
records of the city or town where the mortgagor resides when the mort-
gage is made, and on the records of the city or town in wliich lie then
jirincipally transacts his business, or follows his trade or calling. If tlie
mortgagor resides without the state, his mortgage of jiersonal projierty
within the state when the moitgage is made shall be recorded on the
records of the city or town where the propei-ty then is. Unless a mort-
gage is so recorded, or the property mortgaged is delivered to and
Chap. 151.] pledges. 767
i-etained by the mortgagee, it shall not be valid against any person other See ch. ini,
than the parties thereto, except as is provided in the following section. ^^ ''*' ®"'
Sect. 2. Such record shall not be necessary to the validity of a Transfers, &c.,
mortgage, contract of bottomry, or resjioudentia, or any transfer, assign- of food's at°ea,
ment, or hvi)othecation, of a shin or vessel. Nor shall a record be &o., need not be
necessary to the validity of any transfer in mortgage of goods at sea or k. s. 74,'§o.
abroad, if the mortgagee takes jiossossion of such goods as soon as may ^'^^' ^~-
be atler their arrival in this state.
Sect. 3. City and town clerks, upon payment of their fees, shall To\vn clerk to
record all mortgages of personal property delivered to them, in books r^o"!,. "°"^
kept for the purpose, noting therein, and on each mortgage, the time it is J*-"*, n, § 7.
received ; and such mortgages shall be considered as recorded at the
time when left for the jnirpose in the clerk's office. The fees for record-
ing, and all other services relating thereto, shall be the same as are
allowed to registers of deeds for like services.
Sect. 4. Wiien the condition of a mortgage of personal property is when mort-
broken, the mortgagor, or any ]ierson lawfully claiming or holding under pJ'TceSB'j™!?!''^^
him, may redeem the same at any time before the property is sold in K- s. lor, § -io.
pursuance of the contract between the parties, or the right of redemp-
tion is foreclosed as hereinafter provided.
Sect. 5. The person entitled to redeem shall pay or tender to the Proceeding-s for
mortgagee or person holding under him the sum due on the mortgage, !/,iJ([recovery.°
or perfonn or otfer performance of the thing to be done, and shall pay k. s. io;,§-ii.
all reasonable and lawful charges and expenses incurred in the care and ™^'
custody of the property, or otherwise arising from the mortgage; and if
upon such ]jayment or pertbrmance or tender thereof the iirojierty is not
forthwith restored, the person entitled to redeem may recover it in an
action of replevin, or may recover such damages as he may have sus-
tained by the withholding thereof, in any action adapted to the circum-
stances of the case.
Sect. 6. The mortgagee or his assigns, after condition broken, may Notice of fore-
give to the mortgagor, or the person in possession of the jjroperty, claim- ij' "f,ive„|'°^^ '°
ing the same, written notice of his intention to foreclose the mortgage is43, 72, § 1.
for breach of the condition thereof, which notice shall be served by 12 Viet. :io8.
leaving a copy with the mortgagor, or jierson in possession of the ])rop- J"ff ""'■Um*'
erty, claiming the same, or by ]niblishing it at least once a Aveek for ~"
three successive weeks in one of the jnincipal newspa]iers publishcnl in
the town or city where the mortgage is jiroperly recorded, or wliere the
property is situated, or if there is no such paper, in one of the principal
newspapers published in such county.
Sect. 7. The notice with an affidavit of service shall be recorded to be recorded
wherever the mortgage is recordeil, and, when so recorded, the same, or JJ'"' mortgage,
a copy of the record, shall be admitted as evidence of the giving of such ims, 3.
notice.
Sect. 8. If the money to be paid, or other thing to be done, is not niffht to re-
paid or performed, or tender thereof made, within sixty days after such [i!ij.™ after no-^
notice is so recorded, the risht to redeem shall be foreclosed. tic
ItHi, 73, § 1.
PLEDGES.
Sect. 9. The holder of personal property in pledge for the pajTnent Holder of
of money or the performance of any other thing, may, after failure to JIoHcc^ "4"^ to™
pay or perform, give written notice to the pleilger that he intends to be served and
enforce payment or performance by a sale of the pledge, .and such notice
shall be served, and together with an affidavit of service be recorded in
the clerk's office of the city or town where the ]jledgee resides, in the
manner and with like effijct as provided in sections six and seven for
notices of foreclosure.
Sect. 10. If the money to be paid or other thing to be done is not if debt not paid
768
LIENS ON SHIPS AND VESSELS.
[Chap. 151.
in sixty days,
l)lo(i<jo may be
sold, &c.
Contracts not
iiffoi'tod nor
ri'jiits of iiledg
ees limited.
Sec Cli. 101.
§5 03, IH.
p.aicl or perfomied, or tender thereof made, within sixty days after such
notice is so recorded, tjie pledgee may sell the pledge at public auction
and apply the proceeds to the satisfaction of the debt or demand, and
the ex])enses of the notice and sale, and any surplus shall be paid to the
party entitled thereto, on demand.
Sect. 11. The preceding sections shall not authorize the pledgee to
dispose of the pledge contrary to the terms of the contract under which
it is held, nor limit his right to dispose of it in any other manner allowed
by the contract or the rules of law.
Lien on ships
and vessels for
labor jjerformed
and materials
furnished.
1S55, L'31, § 1.
13 Gray, 129,134.
to be dis-
solved unless
sworn state-
ment of de-
mand, &c., is
filed for record,
&c.
1855,231, §2.
When ship is
built in two
l)laces, &c. Tn-
aeeuraey in de-
scription, &c.,
nottoatfectj&c.
Lien, how en-
forced.
1855, 231, § 3.
185«, 190.
ZOHow.U.S.R.
393.
Petition, what
to contain.
LIENS OX SHIPS AND VESSELS.
Sect. 12. VV hen, by virtue of a contract, expressed or implied, with
the owners of a ship or vessel, or with the agents, contractors, or sub-
contractors, of such owners, or any of them, or with any person having
been employed to construct, rejiair, or launch, such ship or vessel, or to
assist them, money is due to any person for labor ]>erforined, materials
used, or labor and materials furnished, in the construction, launching, or
repairs of, or for constructing the launching ways for, or for provisions,
stores, or other articles, furnished for or on account ot^ such ship or ves-
sel, in this state, such person shall have a lien u])on the ship or vessel,
her tackle, apparel, and furniture, to secure the payment of such debt;
which lien shall be preferred to all others thereon excejjt mariners' wages,
and shall continue until the debt is satisfied.
Sect. 13. Such lien shall be dissolved unless the person claiming the
same files, within four days from the time the ship or vessel deijartsfrom
the port at which she was when the debt was contracted, in the office of
the clerk of the city or town within which the ship or vessel was at the
time the debt was contracted, a statement, subscribed and sworn to by
himself or some person in his behalf, giving a just and true account of
the demand claimed to be due to him, with all just credits, and also the
name of the jierson with wliom the contract was made, the name of the
owner of the ship or vessel, if known, and the name of the shi]i or ves-
sel, or a description thereof sufficient for identification ; which statement
shall be recorded by the clerk of such city or town in a book kept by
him for that purpose, for which he shall receive the same lees as for
recording mortgages of equal length.
Sect. 14. If the ship or vessel is partly constructed in one place and
partly in another, either jjlaco shall be deemed the port at which she
was when the debt was contracted within the meaning of this chapter;
and no inaccuracj- in the description of the shi]) or vessel, if she can be
recognized thereby, or in stating the amount due for labor or materials,
shall invalidate the ]iroceedings, unless it appears that the person filing
the certificate has wilfullj^ ami knowingly claimed more than is duo.
Sect. 15. Such lien may be enforced by petition to the superior court
for the county where the vessel was at the time the debt was contracted
or in which she is at the time of instituting proceedings. The jietition
may be entered in court or filed in the clerk's office in vacation, or may
be inserted in a writ of original summons, with an order of attacliment,
and served, returned, and entered as other civil actions, and the subse-
qnent proceedings for enforcing the lien shall, except as herein.aftcr ])ro-
vided, be as ]iroscribed in chapter one hundred and fifty for enforcing
liens on buildings and land, so far as the same are apjilicable. At the
time of entering or filing the petition, a process of attachment again.st
such ship or vessel, her tackle, ai)parel, and furniture, shall issue and con-
tinue in force, or may be dissolved like attachments in civil cases, but
such dissolution shall not dissolve the lien.
Sect. 16. The j)etition shall contain a brief statement of the labor,
materials, or work done or furnished, or the stores, provisions, or other
Chap. 151.] other liens on personal property. 769
articles fiirnisheJ, and tlie amount due therefor, with a description of
the slii]j or vessel subject to the lien, and all other material facts and cii'-
cumstances, and shall jiray that the ship or vessel may be sold and the
proceeds of the sale applied to the discharge of the demand.
Sect. 17. The court may at any time allow either party to amend his Amendments.
pleadings as in actions at common law.
Sect. 18. Any number of persons having such liens upon the same Several claim-
ship or vessel may join in the same petition to enforce the same; and the'same peti-'"
the same proceedings shall be had in regard to the respective rights of •'™-
each petitioner, and the respondent may defend as to each petitioner, '''
in the same manner as if they had severally petitioned for their individ-
ual liens.
Sect. 19. When there is money due to more than one person hold- Claims in snch
ing a lien upon a ship or vessel under the provisions of this chapter, all shaUed andpro-
paities interested having been cited to apjiear and answer, the claims of ceeds distribut-
all shall be marshalled, and the court shall m.ake such order or decree as Woviso.
may be necessary to prevent the enforcement of a double lien for the isss, -ai.fs.
same labor, materials, stores, provisions, or other articles, and to secure
the just rights of all. And the proceeds arising from the sale of such
ship or vessel, after deducting all proper costs and expenses, shall be
distributed among the several claimants to the amount of their respective
deljts : provided, that when such proceeds are insufficient to satisfy the
liens of all, those having liens for labor shall receive a percentage on
their respective claims one-third greater, as near as may be, than tliose
having liens for materials, stores, or other articles.
Sect. 20. The eight preceding sections shall not affect the lien as Liens on for-
now existing on foreign ships and vessels. affected""'''"""
1855, ai, § c.
OTHER LIENS.
Sect. 21. Wlioever has a lien, other than those described in chap- Party having
ter one hundred and fitly and in the nine preceding sections, for money je," ™K?i)etitk)n
due to him on account of work and labor, care and diligence, or for ajusticeof the
money expended, on or about personal property, by reason of any con- f^e,'"ic."''
tract express or implied, if the money is not paid within sixty days
after a <lemand in writing delivered to the debtor or left at his usual
place of abode if within this state, or made by letter addressed to him
at his usual place of abode without the state and deposited in the post-
office to be sent to him, may apply by petition to a justice of the peace
or police court in the county where the petitioner resides, for an order
for the sale of the property in satisfiiction of the debt.
Sect. 22. The justice or court shall thereupon issue a notice to the Justice, &c.,
owner of the property to appear at a time and place designated, to tice'toSw"
show cause why the prayer of the petition should not be granted ; cause,
which notice shall be served by delivering to the owner, or leaving at Kcturn.'
liis usual place of abode if within the state, a copy thereof, fourteen
days before the day of hearing, and a return of the service shall be
niaile by some officer authorized to serve civil process, or by some other
person with an affidavit to the truth of the return.
Sect. 23. If the owner is unknown, the application maybe made Petition if own-
sixty days after the money becomes due, and a notice may issue "to <■■" ""'^"''"'»-
the unknown owner," describing the property.
Sect. 21. If the owner resides out of the state, or is unknown, Publication of
notice may be given by a jniblication of the order in the manner jjre- '"'•'<^''' *'^-
scribed for the ])ublication of notices in section six.
Sect. 2.5. If the owner makes default at the time appointed, or if Order of sale,
upon a hearing of the parties it apjiears that a lien exists upon the proreeds"''' "'^
jiropert}-, and that the same ought to be sold for the satisfaction of the
debt, the justice or court may make an order for that purpose, and if
65 97
770
RECOGNIZANCES FOR DEBT.
[Chap. 152.
Amount due,
Appeal. Re-
cognizance.
Costs.
Boardinf^-house
keepoi'H to have
lieu uu baj^^yage,
&e.
1859, 229.
See Oh. 52, § 26.
Rig^hts of per-
sons having
lien not re-
stricted.
no appeal is taken, the pro]iei-ty may be sold in conformity therewith.
Any surplus of the ]iroceed.s of sale, after satisfying the debt and all
costs and charoes, shall be paid to the owner upon demand.
Sect. 26. Tlie justice or court may .ascertain the amount due up to
the time of tlie entering of the order, and make a record thcix'of
Sect. 27. Either party may appeal from the final order of the jus-
tice or court in the same manner as in other civil cases, and tlie case
shall l)e heard and determined in the court above, and such order made
as justice sliall require. If the respondent appeals, he shall recognize
for the prosecution of his appeal and the jiayment of any balance of the
debt with costs which may remain unsatisfied after a sale of the jirop-
erty, if judgment is rendered against him.
Sect. 28. The prevailing party shall recover his costs, and the jus-
tice or court may issue execution therefor.
Sect. 29. Boarding-house kee])ers shall have a lien on the baggage
and eft'ects brought to their houses belonging to their guests or board-
ers, exce])t mariners, for all jirojier charges due for fare and board, and
the lien may be enforced as provided in the eight preceding sections.
Sect. 30. The preceding sections sliall not limit or restrict the
right of any party having a lien u])on ]iro]ierty to hold and dispose of
the same in any other manner authorized by law.
CHAPTER 152.
OF RECOGNIZANCES FOR DEBTS.
Section-
1. Reco^izance, debtor may bind himself by.
2. to be taken before sui^erior court, &c., or
clerk. Form of.
3. interest upon.
4. to be recorded. Conusormnst be known.
5. Execution may be issued.
G. proceedings for obtainmg. I'^orm, &c.
7. Recognizance may be taken before a justice
of the peace, »tc. Execution.
8. E.xecutions, where to run.
Section
9. Executions, how taken out by an executor
or administrator.
10. Proceedings in case of death of conusor.
11. Limitation as to issuing of execution.
12. Alias, &c., executions may issue.
13. I>eath of one of several conusors or con-
usees.
14. AiitJita querela^ &c., as in case of .1 judg-
ment.
15. Fees.
Recognizance,
debtor may
bind liimself
by.
R. S. 118, § 1.
to be taken
before superior
court, or clerk.
R. S. IIS, §2.
1859, 19li.
form of.
interest upon.
E. S. 118, § 3.
Section 1. Any person by law capable of binding himself by a
common bond, may enter into a recognizance in the manner hereinafter
mentioned, for the payment of a debt ; and may thereby subject his
person, goods, and estate, to be taken on execution.
Sect. 2. The recognizance may be taken before tlie su]5erior court
in any county in term time, or before the clerk of the court in vacation,
and shall be substantially as follows : —
Be it remembered, that on this day of , of personally
appeared before the .superior court , now held at ■ within and for the
cotmty of (or, before the clerk of the .superior court for the
county of ) and acknowledged himself to be indebted to ■
of ■
the sum of
years ■
to be paid to said
- or in montlis
on the
day of
from this day) ■with interest from thi
(nr, m
day ;
and if not then paid, to be levied upon his goods and chattels, lands and tenements,
and for want thereof, upon his body. In witness whereof said hath hereto set
his hand.
, Clerk of the Superior Court for the County of .
Sect. 3. Tlie clause as to the payment of interest may be altered or
wholly omitted according to the agreement of the parties ; but interest
Chap. 152.] eecognizances for debt. 771
shall always be allowed for any delay after the time of payment, unless
the recognizance contains an express agreement to the contrary.
Sect. 4. The recognizance shall be attested by the clerk, whether Epcoguizance
taken in term time or vacation, and shall be recorded at length by him oimiBor must'
among the records of the court, and the original shall then be delivered be known,
to the conusee. It shall not be taken unless the judge or clerk who ' ' '*'*^ ' ■
takes it knows, or has satisfactory eviilence, that the person oifering to
enter into such recognizance is the person he represents liimself to bo,
and who is described as the conusor.
Sect. .5. If the debt is not paid at the time appointed in the recog- Execution may
nizance, the conusee shall be entitled to an execution for the sum due, k s'lTs'se
to be sued out of the clerk's office in which the recognizance is re-
corded, and to be directed, served, and returned, in like manner as an
execution issued upon a judgment of the same court.
Sect. 6. Before such execution issues, the original recognizance shall procoedings
be filed with the clerk, who shall compute the amount, d'educting any Korm'^?!"^'
payments indorsed; he shall then issue execution, which shall recite the u. s. iis^§§r,8.
recognizance, state the amount then due, and otherwise be in the usual
form of an execution on a ju<lgment for debt. It may be issued by the
clerk without any special order of the coui't.
Sect. 7. A recognizance for debt may bo taken before a justice of Recopizance
the peace, or police court, in any case whore it might be taken before hcioreVjiisUce
the clerk of the court. It shall be substantially in the same form, re- ofthepeiice,&c.
corded in a book kept for tlie jjuqiose, and delivei-ed to the conusee; its. us, §§9,
and execution may be issued thereon by tlie justice or court. Such ex- J'!i.,".v„ ,,
11111 ,11 • . T 1 1 11 i^'ii ~C9, § 1.
ecutions shall have the same eiiect as executions issued by the clerk,
except that where the recognizance is for twenty dollars or less, the
execution shall not run against the lands of the conusee.
Sect. 8. Executions issued under this chapter may be executed and E.xerations,
shall be obeyed in every county to which they are directed. Kl"™ii8,7i2.
Sect. 9. If the conusee dies before the debt is paid, his executor or how taken
administrator may sue out execution in the same manner as the conusee utor'^or'admin^
inioht have done, upon exhibiting to the clerk or justice his letters tes- istrutor.
taniontary or of administration ; and the form of the execution shall be ' ' ' "> »"•
altered accordingly.
Sect. 10. If the conusor dies before the debt is fully jiaid, no execu- Proceedings in
tion therefor shall be issued as of course, but the est.ite of the conusor comisor!™"' °^
in the h.ands of his executors, administrators, heirs, or devisees, shall be K- s. iis, §u.
liable for the debt in like manner qs if judgment therefor had been '*'■'' ~'
recovered against him in his lifetime ; and the conusee, his executors,
or adininistrat(jrs, may have a scire /'((ciaa, or an action of contract, to
recover the same against the executors, administrators, heirs, or devisees,
of the conusor, in like manner as they might have had upon such a
judgment.
Sect. 11. No original execution shall be issued as of course upon Limitation as to
such a recognizance after the expiration of three years from the time {.Su^"'^'^''"^"
therein set for payment of the debt, or three years from the time of the k. s. iis, §15.
last payment indorsed thereon ; but the conusee or his executors or 4 jiass.'im.
administrators may after that time have a scire facias, or an action of i3 Mass. 493.
contract on it against the party liable, in like manner and with the same
effect as upon a judgment.
Sect. 12. The creditor shall be entitled to an alias and other sue- Alias, &c., ex-
cessive executions, as allowed in executions on a judgment in civil Sie""* ""^
actions. "^ «• «-'"8' § i"-
Sect. 13. If there are several conusors or conusees, and one or more De.ith of one
of them dies before the debt is fully satisfied, the right and interest of Ssorro^con""
the survivintr conusees, and the oblicration of the survi\ing conusors, usees.
and all the proceedings for the recovery of the debt, shall be substan- ' '
tially the same as in the case of the death of one or more joint creditors
or debtors in a iudament at common law.
772
SEIZING AND LIBELLING FORFEITED GOODS. [ChAP. 153.
Audita querela^
&c., as in case
of II judgment.
K. S. lis, § 18.
Fees.
K. S. 118, § 18.
Sect. 14. If a person is injured by the wrongful suing out or execut-
ing of any execution under the provisions of tliis chapter, he shall have
his remedy by a writ of audita querela, or otherwise, as if the execution
had been issued u]jon a judgment; and in all cases not otherwise
specially provided for, the ])arties to such recognizance, and their re-
spective representatives, shall be entitled and liable to the remedies
provided for creditors and debtors by a judgment.
Sect. 15. The fee for taking ami recording a recognizance shall be
fifty cents ; and for all other services under the provisions of this chap-
ter, the same fees shall be paid as for like services iu other cases.
CHAPTER 15.3.
OF SEIZING AND LIBELLING FORFEITED GOODS.
Section
1. Goods forfeited to be peizod.
2. Libel, wheu to be tiled, and form thereof.
.3. before whom to be liled.
4. Duties of the elerk of the court wheu libel
is filed. Notice to be publislied.
5. ProceedinjjB when there is no claimant.
6. when a claimant appears.
7. Decree of forfeiture, or restitution.
8. Disposition of tbe proceeds on sale under a
decree.
9. D.amages for seizure without reasonable
cause.
10. Costs.
11. Executions and other processes.
Section
12. Either party may appeal to S. .T. C.
1.3. Proccediuj^s on a liliel before a justice, &c.
14. Notice, trial, and adjudication.
15. Either party may appeal to superior court,
&c.
IG. Depositions may be taken, &e.
17. Goods to be delivered to claimant, on ids
giving; bond.
18. Goods to be appr.^ised.
19. Same subject.
20. Ai)praisement conclusive as to jurisdic-
tion.
21. Goods may be sold, if perishable.
22. for other suflicient cause.
Goods forfeit-
ed to be seized.
R. S. lis, §20.
See Ch. 49,
§§ 2.3, 20, 55, 77,
101,124, 154, 1«,
194 i CIl. 50, § 7.
Libel, when to
be be filed, and
form tliereof.
K. .S. lis, §21.
before whom
to be filed.
U.S. lis, §§22,
34.
1852, 314.
1855, 449.
Duties of clerk.
Notice to be
iniblishcd.
It. a. 118, §23.
Section 1. When goods are forfeited for any offence, and no s])ecial
provision is made for the mode of their recovery, any person entitled to
recover them, and when provision is not otherwise made, any police
officer or constable of the city or town where the goods so forfeited are
found, may seize and keep them safely until they are disposed of as is
hereinafter provided.
Sect. 2. The person making the seizure shall within fourteen days
thereafter file a libel in the clerk's office of the sujierior court for the
county where the offence was committed, or before any justice of the
peace, or police court, as the case requires, stating briefly the cause of
the seizure, without setting forth all the special matter, and jiraying fur
a decree of forfeiture according to the provisions of the statute on which
the seizure is founded, referring to it in the following form : " according
to the provisions of the law concerning the packing and stamjiiug of
paper," or, "the inspection of lime," (as the case may require,) and men-
tioning the number of the chapter of the statute referred to, or re-
ferring thereto in some other general terms.
Sect. 3. If the value of the goods seized exceeds twenty dollars, tlio
libel may, and if such value exceeds one hundred dollars, shall, be filed
in the clerk's office; otherwise it shall be filed before a jn.stice of the
]ieace, or police court, in the county where the ofi:enee is committed,
and the value for this purpose sh.all be ascertained by an apjiraisal as
hereinafter provided fin-.
Sect. 4. Upon filing the libel in the clerk's office, he shall make out
an .advertisement setting forth liriefly the substance of the libel, and
giving notice to all [lersous interested to appear at the term of the
court to be held next after the expiration of twenty-one days from the
Chap. 153.] seizing and libelling forfeited goods. 773
time of filing the libel, aiul show cause why the goods should not be
decreed forfeited ; which notice the libellant shall cause to be published
twice at least in some ncws])aper printed in the county, if there is any,
otherwise in a newspajier jiriuted in the neaj-est county, the first publica-
tion to be not less than fourteen days before the beginning of the term.
Sect. 5. The libel shall be entered like civil actions ; and if atler Proceedings
proclamation made no claimant ajipears, the court shall hear and deter- ^'dai'mant.'^
mine the cause, and decree a forfeiture, restoration, or other disposition k. s. iis, §24.
of the goods, as law and justice require.
Sect. G. If a claimant ajjpears, he may allege and answer any matter when a cUim-
that may be necessary or ])roper for his defence; and the further pro- i"'s.'us,'Yi5.
ceedings shall be conducted in the mode usual in courts that proceed
according to the course of the civil law, except that all questions of fact
shall be tried and detenuined l>y a jury.
Sect. 7. If upon the trial the libellant maintains his suit, the court Decrees of for-
shall decree a forfeiture and sale of the goods, and a distribution of the [^i^'/iu"' "'' ''''^''"
proceeds, or such other disposition thereof as law and justice require. IJ. .s. iis, §26.
If he fails to maintain it, the court shall decree a restitution of the
goods to the claimant.
Sect. 8. When goods are sold under such decree, the proceeds shall Hisposition of
be ajjplied, under the direction of the court, to the ])ayment of the I;'„'ie''under'a d°
expenses of the seizure, prosecution, and sale ; and in default of any i^"'--
other provision for the disposition of the residue, it .shall be paid to the
party who made the seizure.
Sect. 9. If the jury find that the seizure was gi-oundless and without Dam.ig-cB for
probable cause, they shall assess reasonable damages for the claimant, rcasouiibii"""''
and the court shall render judgment for such damages with costs. cause.
Sect. 10. In all other cases the court shall aw.ard costs to the pre- coft's."*' ^ '^'''
vailing party, or may order the costs and charges of keeping and selling H- s. iis, §-2s.
the goods, or any part thereof^ to be paid out of the proceeds of the
goods.
Sect. 11. They may issue execution in common form for all costs Executions and
and damages awarded to either party, and such warrants and other o'ssJsl""^
processes as may be necessary or proper to carry into effect any other i'- y- iis, §29-
parts of their decree or judgment.
Sect. 12. Either party aggrieved by a decree of the court founded Either p.irty
upon matter of law apparent on the record, may ajijical therefrom to j;|-">' ■Ji.'i"'^'' *"
the supreme judicial court, and such appeal shall be claimed, prosecuted, "• ■'^- ns§30.
and determined, as ]irovided for appeals in other civil cases. ^ < '■
Sect. 1.3. If the libel is tiled before a justice of the peace, or a po- Proceedinjjs on
lice court, the justice or court shall make out an advertisement or notice jVs'tice''&c'^"' *
like that before required to be made by the clerk, mentioning the time u. s. lis, §§3i,
and jilace appointed for hearing the cause.
Sect. 14. The liljellant shall cause the notice to be posted up in xotice, trial,
some public place in the county not less than seven days before the an'^adjudica-
time appointed for hearing the cause, when any claimant may appear n. s. iis, §.32.
and answer to the suit; and it shall be heard and detenuined in all ^''^-'•"■*-
respects as herein prescribed for a trial in the superior court ; but a jury
shall be allowed only ujion the same terms as in other civil cases.
Sect. 15. Either party aggrieved by any decree of such justice or Either party
court may appeal therefrom to the superior court, and the apjjeal shall "up'^-Hoi-court
be conducted in all respects like ap])eals in other civil cases, and the be-
cause shall be heard and determined in the court appealed to, according 34. ' '" >
to the provisions of this chapter.
Sect. 16. Depositions may be taken and used in like manner as in Dcpowtions
. • 1 c .• \ ii 1 may be taken,
tnals of actions at the common law. &c.
Sect. 17. At any time after the seizure of goods alleged to be for- ^*' ^- !"*■ §35.
feited, the owner, or any person entitled or authorized to claim the same, liVercd to ciaim-
may have them delivered to him, upon giving bond to the person who '™'^ "" ''j^ siy-
65*
774
LIMITATION OF REAL ACTIONS, &c. [ChAP. 154.
R. S. 118, §36.
Goods to bo ap-
praised.
K. S. 118, § 3r.
.Same subject.
K. S. lis, §38.
Appraisement
coiielusive as to
jurisdiction.
E. S. 118, §39.
Goods may be
sold if perisha-
ble.
K. S. 118; §40.
for otlicr suf-
ficient cause.
E. S. lis, §41.
made the seizure, witli sufficient surctj-in double the vdueof tlie goods,
conditioued to restore them or pay the apjiraised vahie thereof if they
are decreed forfeited, and to abide bj' and perform the final order, decree,
or judgment, of the court rehithig thereto.
Sect. 18. The value of the goods in such case shall be ajipraised
and determined by three disinterested men, to be agreed on by the par-
ties or appointed by any justice of the peace to whom the claimant
applies for that jiurpose, and to be sworn; or if the appraisement is
made after the libel is filed, the aiijjr.aisers shall be aiipointed by the
court or justice before whom the suit is pending.
Sect. 19. The ])erson making the seizure, as soon as may be there-
after, unless an a])plication for an ap])raisementisin the mean time made
by a claimant, shall ap]^ly to a justice of the peace, who shall aii]ioint
three disinterested men to make an inventory and apjiraisement of the
goods seized. Such ai)praisers shall be sworn, and shall return their
inventory and ai>praisement to the court or ju,stice before whom the suit
is lirought.
Sect. 20. The apjn-aiscment thus made on the application of the
person who made the seiz\ire, shall be conclusive as to the jurisdiction
of the court before which the suit is to be brought, unless before filing
the libel a different ap])raisement is m.ade upon the application of a
claimant in the manner before ])rovided ; in which case such last-men-
tioned appraisement shall be conclusive in that respect.
Sect. 21. When goods so seized are perishable and liable to depre-
ciate in value by keeping, and the fact is certified by the appraisers
appointed on the application of the person making the seizure, any jus-
tice of the peace, or police court, may by an order indorsed on the inven-
tory, authorize a sale by auction of such perishable goods, wliich sale
shall be made at such time and with such notice as shall be directed in
the order.
Sect. 22. The preceding section sh.all not control or .affect the power
of the court in which the suit is ])ending to order a sale of the goods
for any sufficient cause at any time during the pendency of the suit.
TITLE Y.
OF THE LIMITATION OF ACTIONS.
Cn.iPTER 154. — Of the Limitation of Real Actions and Rights of Entry.
Chapter 155. — Of the Limitation of Personal Actions.
CHAPTER 154.
OF THE LIMITATION OF REAL ACTION.S AND RIGHTS OF ENTRY.
Section
1. No action, &c., after twenty years, except,
&e.
2. Right first accruing to an ancestor, how
computed, &c.
Section
3. Time when the limitation begfins to run.
4. Limitation after disseisin of a solo corpora-
tion.
6. Exceptions for certain dlBabilities.
Chap. 154.] limitation op real actions, &c.
775
Section
0. Death of persons under disabilities.
7. No allowance for second disability.
8. Entry on land, wlicn effoctual.
9, 10. Estates tail barred like estates in fee.
11. Wheu limitJitions to take effect.
12. Suits by comiuouweidtli limited.
Sectiox
i;j. Descent, &c., not to bar right.
14. Xotice to prevent an casement to be deemed
disturbance thereof.
15. On reversal or arrest of judgment^ &c., new
action may be brought.
15 Mass. 471.
Section 1. No person shall commence nn notion for the recovery of Actions within
lands, nor make an entry thereon, unless witliin twenty years after the K!*s.*nuf§h'
riffht to brine; such action or make such entry first accrued, or Avitliin " Pick. 153.
1 I. 7 "Met ''4
twenty years after he, or those from, by, or under whom lie claims, s Met! m.
haye been seised or possessed of the premises, except as is hereinafter r ■^'^ Si" ^is' ""
provided.
Sect. 2. If such right or title first accrued to an ancestor or, pred- Right first ac-
ecessor of the person who brings the action or makes the entry, or "cstor 'how ^
to any other ijcrson from, by, or under whom he claims, the twenty computed, &c.
years shall be computed troni the time when tJie right or title so first ' '
accrued.
Sect. 3. In the construction of this chapter, the right to make Time when the
an entry or bring an. action to recover land shall be deemed to have Ji^g'torun"
first accrued at the times respectively hereinafter mentioned, that is &. S. iiu, §3.
to say, —
First. When any person is disseised, his right of entry or of action
shall be deemed to have accrued at the time of such disseisin :
Second. When he claims as heir or devisee of one who died seised,
his riglit shall be deemed to have accrued at the time of such death,
unless there is a tenancy by the curtesy or other estate intervening
after the death of such ancestor or devisor; in which case, his right
shall be deemed to accrue when such intermediate estate expires, or
when it would have expired by its own limitation :
Third. When there is such an intermediate estate, and in all other asiass. sos.
cases when the j^arty claims by force of any remainder or reversion,
his right, so far as it is aifeeted by the limitation herein prescribed,
shall be deemed to accrue when the intcrmeiliate or precedent estate
would have expired by its own limitation, notwithstanding any for-
feiture thereof for A\'hich he might have entered at an earlier time :
Fourth. The preceding clause shall not prevent a person from enter-
ing when entitled to do so by reason of any forfeiture or breach of con-
dition ; but if he claims under such a title, his .right shall be deemed to
have accrued when the forfeiture was incurred or the condition was
broken :
Fifth. In all cases not otherwise specially provided for, the right SMet. 9o.
shall be deemed to have accrued when the claimant or the person
imder whom he claims first became entitled to the possession of the
]iremises under the title upon which the entry or the action is founded.
Sect. 4. If any minister or other sole corporation is disseised, any Limitation af-
of his successors may enter ujion the ]iremises, or bring an action for aToie'^corpora-
the recovery thereof, at any time within five years after the death, **""■
resignation, or removal of the person so disseised, notwithstanding the
twenty years after such disseisin have expired.
Sect. 5. If at the time when such right of entry or of action u])on Exceptions for
or for lands first accrues, the jjerson entitled to such entry or action is iues'""
within the age of twenty-one years, or disabled by marriage, insane, I'-S. ii9,§ 5.
iui]irisoned, or absent from the United States, such person, or any one
claiming from, b}', or under, him, may make the entry or bring the action
at any time within ten years after such disability is removed, notwith-
standing the twenty years before limited in that behalf have expired.
Sect. 6. If the person first entitled to make such entry or bring such ^"^ns'uudCTdis-
action dies during the continuance of any of the disabihties mentioned abiuties.
776
LIMITATION OF EEAL ACTIONS, &c. [ChAP. 154.
E. s. no, § c.
No allowance
for seooud disa-
bility.
K. S. 1111, §7.
0 East, SO.
6 Mass. 328.
Entry on land,
when eflectual.
K. S. Ill), §S.
2 Jlet. 5s:i.
8 Met. OOl.
Estates tail
barred like es-
tates in fee.
K. S. lly, § y.
Same subject.
K. S. IIU, § 10.
When Hmita-
tiiiuH to take
ellei't.
11. S. 119, § 11.
Suits by com-
monwealth lim-
ited.
K. S. 119, § 12.
1.S.V2, 253, § 2.
ls.-,4, 2«1, §U.
4 Mass. r,2S.
0 .Met. ISr.
1 Cush. 427.
Descent, &c.,
not to bar ripfht.
K. S. nil, § 13.
Notice to pre-
vent an ease-
ment to be
deemed disturb-
ance thereof.
K. S. 119, § 14.
1852,312.
in the preceding section, .and no detcnninntion or juclgment lias been
had of or ujwn the title, right, or action, which accrued to him, the entry
may be made or the action liroiig-ht by his heirs, or any other person
claiming from, by, or under, him, at any time within ten years after his
death, notwithstanding said twenty years have expired.
Sect. 7. If, at the time when such right of entry or action first
accrues, the person entitled thereto is under any of the disabilities be-
fore mentione<l, and dies without having recovered the ])remises, no
further time for making such entry or bringing such action, beyond what
is herein before prescribed, sliall be allowed by reason of the disability
of any other )ierson.
Sect. 8. No person shall be deemed to have been in possession of
any lands within the meaning of this chapter merely by reason of having
made an entry thereon, unless he has continued in open and peaceable
possession of the premises for one year next after such entry, or unless
an action is commenced u]ion such entry and seisin within one year after
he is ousted or dispossessed.
Sect. 9. When the right of entry or action of a tenant in tail, or
person entitled to a remaimlcr in tail, is barred by force of this chapter,
the estate tall, and all remainders and reversions expectant tliereon, shall
be also barred, as fully as they might have been by a convej-anee
made by the tenant in tail in the manner jtrovided in chapter eighty-
nine.
Sect. 10. When a person entitled to recover land as a tenant in
tail, or remainder-man, dies before the exjiiration of the jieriod herein
before limited for making an entry or bringing an action therefor, no
person claiming any estate which the tenant in tail or remainder-man
might have barred, shall make an entry or bring an action to recover
such land, except within the period during which the tenant in tail or
remainder-man, if ho had so long lived, might have made such entry or
brought such action.
Sei'T. 11. The limitations herein before prescribed as to the time
within which an action may be brought to recover land, take effect from
and after the thirty-first <lay of December in the year of our Lord
eighteen hundred and thirty-nine ; and if any person then entitled to
bring any real action abolished after that day was then within the age
of twent3'-one years, a married woman, insane, imprisoned, or without
the limits of the United States, the action maj- be brought at any time
within five years after the disability ceased, or after the death of the
person so disabled : jyrot'idcd, that no such action shall be maintained
after it would have been barred by this chapter and by the statutes of
limitation in force on the last day of April one thousand eight hundred
and thirty-six.
Sect. 12. No suit for the recovery of lands shall be commenced by
or in behalf of the commonwealth, unless within twenty years after the
right or title of the commonwealth thereto first accrued, or within
twenty years after the commonwealth or those from or through whom
it claims have been seised or possessed of the premises ; but the pro-
visions of this section sliall not ajiply to any of the Province lands in
the town of Provincctown, nor to the lands owned by the state in the
basins of Back Bay mentioned in section one, chapter two hundred and
fifty-three, of the statutes of eighteen hun<lred and fifty-two.
Sect. 13. No descent or discontinuance shall take away or defeat
any right of entry or action for the recovery of real estate.
Sect. 14. When notice is given to prevent the acquisition of a right
or privilege of way or any other easement, as pro\idcd in chajiter
ninety, such notice shall be considered so fiir a disturbance of the right
in question, as to enable the party claiming such right to bring an action
of tort as for a nuisance or disturbance, for the puipose of trying the
Chap. 155.] limitation of personal actions.
777
riglit ; and if the plaintiff in such action prevails, he shall be entitled to
full costs, although he recovers only nominal damages.
Sect. 15. If an action of which the commencement is limited by On reversal or
this chapter, is abated by the death of any party thereto, or if after ver- mcut! &oi"nfw
diet for the demandant or plaintiff the judgment is arrested, or if judg- action may be
ment in any such action is given for the demandant or plaintiff and the k. s.^iig, § is.
judgment is reversed for error therein, the demandant or jilaintiff, or
any person claiming from, by, or under, him, may bring a new action
for the same cause, at any time within one year after the determination
of the original action, or after the reversal of the judgment therein.
CHAPTER 155.
OF THE LIMITATION OF PERSONAL ACTIONS.
Section
1. Certain actions to be brought within six
years,
within two years.
within four years.
4. Exceptions as to eertain notes, &c.
5. as to suits on mutual accounts current.
6. for certain disabilities.
7. Limitation of twenty years.
8. Suits by aliens.
9. Defendants out of state.
10. Time e.xtended upon the death of either
party.
11. in case of reversal, arrest of judgment,
ic.
2.
3.
Section
12. Time extended in case of fi-audulent con-
cealment by defendiint.
13. New promise, &c., to be in \vriting.
14. Promise by one of several debtors.
15. Proceedings in action against sucli debtors.
IG. in abatement.
17. Effect of part payment ; of indorsements.
18. Limit.ation of demands filed in set-olT.
19. Suits by commonwealth limited.
20. Limitation of suits for penalties, by private
persons.
21. of such suits by commonwealth.
22. of suits by other statutes.
23. Presiunption of payment of judgment.
■ I'ii-k. 153.
22 I'ick. 430.
4 Jlet. IIH.
7 Jlct. 237.
9 Met. 182, 197
Section 1. The following actions shall be commenced within six Actions within
years next after the cause of action accrues, and not afterwards : — k!'.s'!'i20,'§ i.
First. Actions of contract founded upon any contract or liability not 2 c.aius,4j7.
under seal, express or implied, except such as are brought ujion a judg- 2 Mason! 311!
ment or decree of some court of record of the United States, or of this
or some other of the United States :
Second. Actions for arrears of rent, except upon leases under seal :
Third. Actions of retilevin, and all other actions for taking, detain- ii Met. 216.
... 1 1 tt 1 ° 13 Met. 251.
ing, or injuring, goods or efiattels : ■• cush. 487.
Fourth. All actions of tort except those hereafter mentioned. eGra'^'iis'
See Ch. 65, §§ 10, 10. Ch. 129, § 7S. Ch. 145, §11. Ch. 14S, §5.
Sect. 2. Actions for assault and battery, and for false imj)risonment, within two
and actions for slanderous words and for libels, shall be commenced r"."s!'i20, § 2
within two years next after the cause of action accrues, and not after- o*^';'f'?j!''s ,.,
wards. Ch. 97, §§5, 9. ch. 111, §ig. ™ i- ' . § -
Sect. 3. Actions against shei-ifTs for the misconduct or negligence of within four
their deputies shall be commenced mthin four years next after the cause r.'s.'h, §78.
of action accrues, and not afterwards. 9Grceni.74. 4Gray,290. See ch. 109, §29. R.s. 120,53.
Sect. 4. None of the forerjoinir iirovisions shall aiiply to aiiv action Exception as to
/% * ■ cd*t^iii notes
brought upon a promissory note signed in the presence of an attesting &c.
witness, if the action is brought by the original payee or his executor or Jg^'„gg"'.,|Q"
administrator; nor to an action brought upon bills, notes, or other 314.
evidences of debt, issued by a bank. s rick! 240!
4 Met. 219, 537. 13 Met. 128. 4 Cush. 17fi. 6 Cush. 139, 172. 23 I ii-k. '.sj.
7 Met. 227. 1 Cush. 270. 5 Cush. 442. 1 Gray, 201. 1 Met. 21.
Sect. 5. In actions of contract brousrht to recover the balance due "" '" s";''
,- ^, ^,,,, , on mutual ac-
upon a mutual and open account current, the cause oi action shall be counts current.
98
778 LIMITATION OP PERSONAL ACTIONS. [ChAP. 155.
R. s. 120, § 5. deemed to have accrued at the time of the last item proved in the
4Greeiil..W. ^^poiint
« Circuul. 308. .ICCOUIll.
2 Mass. 2ir. 3 Pick. Siii. fi Pick. 362. 8 Pick. isr. 3 Mot. 21i). 11 Cush. 258.
Exccptiou for Sect. 6. If a persoii entitled to bring any of the actions before men-
cCTtaiu disabiu- tioned in this chapter is at the time the cause of action accrues within
K. s. i2o,§6. the age of twenty-one years, disabled by marriage, insane, imprisoned,
H Mass! 203. Or absent from the United States, he may bring the action within
1'' M"? s. ISO. the times in this chapter respectively limited, after the disability is
20 Pick. 301. J i r .; ' j
11 Met. 210. removed.
Limitation of Sect. 7. Personal actions on contracts not limited by the foregoing
twenty years, sections, or by any other law of this state, shall be brought within
2:)'pick. ilj.' twenty years after the cause of action accrues.
3 Met. 3U0. 11 Met. 210. 6 Cusli. iUS. 8 Cush. 3C(i.
Suits by aliens. Sect. 8. When a person is disabled to prosecute an action, by rea-
I'crancU lii. ^o"' ^f his being an ahen subject or citizen of any country at war with
the United States, the time of the continuance of such war shall not be
deemed part of the respective jieriods herein limited for the commence-
ment of any of the actions before mentioned.
Defendants out Sect. 9. If, at the time when any cause of action mentioned in this
R s''i2'o §9. chapter accrues again.st a person, he is out of the state, the action m.ay
3 Mass. 271. be commenced within the time herein limited therefor, after he comes
1? Mass. 55! into the state ; .and if, after a cause of action has accrued, the person
is'p^'^k-^^ii against whom it has accrued is absent from and resides out of the state,
6 Met. 400.'" the time of his absence shall not be taken as part of the time limited
i''^iet*^os ^or the commencement of the action.
Tcusli'. 508. 9 Cush. 527. 5 Gray, 397. 6 Gray, 427, 517.
Time extended Sect. 10. If a person entitled to bring or liable to .any action before
upon the death mentioned, dies before the expiration of the time herein limited, or
01 eitlier party. ... , .' , .. , ^ . . ^ . , . , , ,.
K. s. 120, § 10. Within thirty days alter the expiration 01 said time, and the cause ot
I'cus'ii'. 4?;r. action by law survives, the action may be commenced by or against the
7 Gray, 3S4. executor or administrator of the deceased person, at any time within
two years after the grant of letters testamentarj' or of administra-
tion, and not afterwards if otherwise barret^ by the provisions of this
chapter,
in case of re- Sect. 11. If in any action duly commenced within the time limited
Jad''meau&c"'^ '^"'^ allowed in this a"nd the preceding chapter, the writ fails of a suffi-
K. §. i2o,j 11. cient service or return by any unavoid.able accident, or by any default
12 Met. 15!" or neglect of the officer to whom it is committed, or if the writ is
®Cush. «7. abate 1, or the action otherwise .avoided or defeated, by the death of
7GrayliGj' any ])nrty thereto, or for any matter of fonn, or if after a verdict for
the plaintifl' the judgment is arrested, or if a judgment for the plaintift'
is reversed on a writ of error, the plaintiff' may commence a new action
for the same cause at any time within one year after the abatement or
other determination of the original suit, or after the reversal of the
judgment; aiul if the cause of action by law survives, his executor or
administrator may commence such new action within said one year.
in ease of Sect. 1:2. If a person liable to any of the actions mentioned in this
Sai'moirtby do- chapter frau<luleutly conceals the cause of such action from the kiiowl-
fendant. edge of the person entitled thereto, the action may be commenced at
2o.?oims'.ii'."33. any time within six years after the person entitled to bring the same
??,'•''?.''• .^"'- discovers that he has such cause of action, and not afterwards.
1 Pick. 43j. '
3 Pick. 74. i Cush. 20S. 0 Cush. 418.
New promise, Sect. 13. In actions of contract, no acknowledgment or promise
&o.,toj)ein shall be evidence of a new or continuing contract whereby to take a
R. s, 120, § 13. case out of the operation of the jirovisions of this cha]iter, or to de-
2 Met" 173" prive a p.arty of the benefit thereof, unless such acknowledgment or
5 Met. 171! promise is made or contained by or in some writing signed by the party
6 Met. 553. 'T,t,ltiu o o J r J
8 Met. 432. chargcablc thereby.
OiletiiSs! 11 Met. 210. 3 Cush. 355. C Cush. 151.
I
Chap. 155.] limitation op personal actions. 779
Sect. 14. If there are two or more joint contractors, or joint execu- Promise by one
tors or administrators of a contractor, no one of them shall lose the ors"."^'"^'^ '*''''''
benefit of the provisions of this chapter so as to he chargeable by i'- S- i-'o, §§ h,
reason only of an acknowledgment or promise made or signed or by a r Grocni. 2o.
payment made by any other or others of them. ^ JI"[[- ^JJj-
i Pick. 3S3. 6 Met. 168. C Jlct. 554. C Clish. 360.
Seht. 15. In actions commenced .against two or more joint con- Procccdin;,'B in
tractors, or joint executors or administrators of a contractor, if it BucUdoCtors'^
appeal's on the trial or otherwise that the plaintift" is b.arred by the pro- K. s. no, § 15.
visions of this chapter, as to one or more of the defendants, but is
entitled to recover against any other or others of them by virtue of a
new acknowledgment or promise, or otherwise, judgment shall be given
for the plaintiff as to the defendants .against whom he is entitled to
recover, .and for the other defendant or defendants against the plaintiff.
Sect. 16. If in an action of contract the defendant jileads or answers in abatement,
in .abatement that any other person ought to li.ave been jointly sued, and ^' ''■ '""' ^ "''
issue is joined thereon, and if it appears that the action was by reason
of the provisions of this chapter barred against the person so named, the
issue shall be found for the ))laintiff.
Sect. 17. Nothing contained in the four preceding sections shall Effect of part
alter, take away, or lessen, the effect of a p.ayment of any principal or dOTs"™'nts.'^"''
interest made by any person ; but no indorsement or memorandum of ';^'^- '-'•;•,§ i~-
any such payment written or made upon a promissory note, bill of iVjilt! 539, sm.
exchange, or other writing, by or on beh.alf of the party to whom such J] ^};;[- -^j-
payment is made, or purports to be made, shall be deemed sufficient i; Cusii. ip.
]iroof of the payment, so as to take the case out of the provisions of this ' *J''-''J' -'■*■
chapter.
Sect. 18. The provisions of this chapter shall apply to the case of Limitation of
any debt founded on contract, alleged by w.ay of set-off on the part of a f ™rt"off.'"'^''
defendant; .and the time of limitation of such debt shall be computed in k. .s. i:!o, § in.
Uke manner as if an action had been commenced therefor at the time '* ° ' *'''
when the plaintiff's action was commenced.
Sect. 19. The limitations herein before prescribed shall apply to Suits by com-
actions brought by the connnonwealth, or for its benefit. R. s. vm, § ™. |J^"^°"«»'"' 'i™-
Sect. 20. All actions and suits for a penalty or forfeiture on a penal Limit.iiion of
statute, brought by any person to whom the penalty or forfeiture is tic's by'prlvato
given in whole or in part, shall be commenced within one year next after persons.
the offence is committed, and not afterwards. 3 Gray, 135. eomy, 3.3s. ii'cusii.'oL. '
Sect. 21. If the penalty or forfeiture is given in whole or in part to of such suits
the commonwealth, a suit therefor may be "commenced by or in behalf ^/oS"""""
of the commonwealth at any tune within two years after the offence is K- -s. r.'o, § 22.
committed, and not afterwards.
Sect. 22. The provisions of this chapter shall not .apply to any action of suits by
otherwise speciaUy Umited by Law. Ts' "o'lst
See Ch. i2.\ §§ 20, 85. Ch. 124, § 46. Ch. 143, § 23. -3-
Sect. 23. Every judgment and decree in any court of record of the Presumption of
United States, or of this'or any other state, shall be presumed to be paid jSwut"'^
and s.atisfied at the expiration of twenty years after the iudgment or u.§. 120, §24.
decree was rendered. 22i->ck.5;«.
780
COSTS IN CIVIL ACTIONS.
[Chap. 156.
TITLE YI.
OF COSTS AND THE FEES OF CERTAIN OFFICERS.
Chapter 156. — Of Costs in Civil Actions.
Chapter 157. — Of the Fees of Certain Officers.
CHAPTER 156.
OF COSTS IN CIVIL ACTIONS.
SECTiojr
1. Prevailing party entitled to costs.
2. except when action discontinued, &c., by
discharge in insolvency.
3. after joinder of issue upon dischargee in
insolvency, &c.
4. Costs on appeal from a justice of the peace,
&e.
5. in actions commenced in S. J. C, &c.,
when plaintiff recovers only $jn, &c.
6. when plaintiff's claim is reduced by set-
off.
7. when plaintiff does not recover $300 dam-
age, &c., to recover no costs.
8. when defendant brings money into court.
9. in real actions, replevin, &c.
10. in actions which might have been joined.
11. of trial on different counts.
12. Proceedings stayed, &c., till costs of for-
mer suit paid.
13. Double costs, how taxed.
Section
14. Costs on petition for certiorari^ &c.
15. in suits in equity in certain cases,
in suits in equity, &c., when no proviS'
ion is made.
In civil suits by commonwealth.
when brought in name of state for use of
a person.
against commonwealth, how paid.
for commonwealth, how taxed.
power of arbitrators, &c., as to, and of
courts in case of amendments, &c., not af-
fected.
by whom taxed ; notice of taxation.
Appeal from taxjition by clerk.
how conducted.
25. Appellee may take execution in certain
cases before appeal is settled.
26. Costs of appeal.
27. Allowance toj)arties recovering costs.
2S. Costs of travel for a coi^poration.
16.
17.
18.
19.
20.
21.
23.
24.
Prevailinj^ par-
ty entitled to
costs.
K. S. 121, §1.
exci'pt wlicn
actiuM discon-
tiniii'd, tVc, by
insolvency.
1843, 55.
4 Cush. 502.
after joinder
of issue upon
discharge iu in-
Bolvency, &c.
1841, 124, §4.
1848, 267.
Costs on appeal
from a justice
of the peace,&c.
K. S. 121, § 2.
in actions
commenced in
S. J. C, Ac,
when plaintiff
recovers only
S-'n, &<;.
K. S. 121,53.
Section- 1. In all civil actions, the prevailing party shall recover his
costs, except in those cases in which a diflerent provi-sion is made by
law. 7 Met. 590. 11 Met. 288. 4 Gray, 50, 205.
Sect. 2. If the defendant ansfl'ers in defence that he is discharged
in bankruptcy or insolvency, and tlie action is discontinued or the plain-
tiff nonsuited solely in consequence of such answer, the defendant shall
recover no costs.
Sect. 3. If a defence is made to rest upon a discharge in bankruptcy
or insolvency alone, and an issue is so made up in ^witing ami Ibund for
the defendant, he shall recover his costs after, but not before, the joinder
of such issue.
Sect. 4. In civil actions before a justice of the peace, or a police
court, if the plaintiff appeals from a judgment in his favor, and does not
recover in the court above a greater sum for debt or damages than he
recovered by the first judgment, he shall not be entitled for his costs of
the whole suit to more than one-quarter part of the sum finally recovered
for debt or damages.
Sect. .5. In personal actions brought originally in the supreme jufli-
cial court, or the superior court, except actions of replevin, if the plaintiff
finally recovers a sum not exceeding twenty dollars for debt or damages,
he shall be entitled to no costs, except as is provided in the following
section. 1859, wo. SCush. 281. 1 Gray, 625. 2 Gray, 214. See Ch. 149, § 25.
Chap. 156.] costs in civil actions. 781
Sect. 6. If the plaintifTs claim as established on the trial exceeds Costs, when
twenty dollars, and is reduced to that amount or less, or overbalanced, fs'^'ducedby™
by set-ofts which could not have been proved in payment, it shall be sit-oc
considered for tlie puqioses of the preceding section as having exceeded s Mass? 535. '
twenty dollars, and the jiarty who finally recovers judgment in the suit i'v^'Y^'-i''")'-"'
shall be entitled to his full costs.
Sect. 7. In actions at law brotight originally in the supreme judicial when plaintiff
court, or removed l)y consent thereto, if the plaintift" does not recover, or ssoo'dam-"^
either in value of the iiroperty claimed or estate in controversv, or in "&e, &c., to re-
1 ^ i ^ ^1 1 1 1 1 n 1 11 cover no costs.
damages, an amount equal to three hundred dollars, to be assessed by isso, too, § :».
the jury wlio try the cause, or by an assessor agreed upon by the parties, ■
or by an award of arbitrators, he shall recover no costs.
Sect. 8. When a defendant brings money into court and offers the when dcfend-
same in satisfaction of the damages, the plaintiff shall be entitled to the ™ou"J.y"5to
costs which had previously accrued, though he mav not recover a larsrer court,
sum than is so brought into court. i-j i-iVk". .h:,. '
Sect. 9. In real actions and actions of replevin, -the j.arty finally pre- in real ac-
vailing shall recover his full costs without regard to the amount of" dam- 1!""*' '''•i''''' '"•
ages recovered in the action. «• s. 121, § 1.3.
° IKW, 312.
Ill Mass. «8. 4 Pick. Ifi9. 10 Tick. ir.j. 13 Jlot. 144. j Mass. 4?fl.
Sect. 10. When a plaintiff at the same court brings several actions in nctious
against the same defendant, upon demands which might have been havJ;'be"!f'''
joined in one, lie shall recover costs in one action only, unless it a)i])cars joined,
to the court that the actions affect different riglits or interests, or that s Mass? sil. '''
for other sufficient reasons they ouoht not to have been joined. oMass. is.
1" \l3S8 175
Sect. 11. When there are two or more counts on several and dis- lo cush! so-i!
tinct causes of action, and a verdict is rendered for the ])laintift" on one of trial on dif-
or more of them, and for the defendant on any other or others, each u™I i2?,"§ ic.
party shall recover his costs paid for the travel and attendance of wit- J '{"*•??;'■
ncsses, and for depositions and other evidence produced, examined, or 13 Met. 430.
used, on the trial of the counts upon which the verdict is in his favor, ^ ^[J^Jj' J^^;
and shall recover nothing for the like charges incurred on the trial of
the other counts.
Sect. 12. When, after a judgment for costs upon a nonsuit or dis- Proceedings
continuance, a second suit for the same cause is brought by the original co^ts^'formcr'
plaintiff, his executor, or a<lministrator, before the costs of the foriuer suit paid,
suit are ])aid, the court in which the second suit is pending may order ' •-'>'■
proceedings therein to be stayed until such costs are paid, and may fur-
ther order that the suit be dismissed unless the costs are paid within
the time expressed in the order.
Sect. 13. In cases in which a party is entitled to recover double Double costs,
costs, the sums paid as fees to witnesses, and for the costs of taking k° s.*t2f § is.
depositions and ]n-ocuring evidence, and for copies, an<l all court dues,
shall be taxed and recovered singly, and the remainder only of the tax-
able costs shall be doubled. The same rule shall apply when treble
costs are recovered.
Sect. 14. In cases where application is made at the suit or in behalf Costs on petj-
of a private person for a writ of certiorari, mandamus, quo warranto, ''™i,'&i;"'^'"'"
or other like process, the court may in its discretion allow costs to any i'- S- 121, § i9.
person who appears and objects thereto, and may award judgment and
execution against the person by whom, or in whose belialf; the appli-
cation is made.
Sect. 1.5. In suits in equity in which as to one or more of the de- in suits in
fendants the jjlaintiff seeks merely for a discovery of facts material to easS^'"'^'^'^'""'
his rights and interests in a pending or antiei])ated suit, and not for a iS4i, 129.__
decree against them, the court shall allow such defendants all reason- 1 •" • '•
able costs, expenditures, and charges, by them made or sustained, ac-
cording to the usual course of proceeding in equity in like cases. Such
allowance shall be made notwithstanding any prayer in the plaintiff's
782
COSTS IN CIVIL ACTIONS.
[Chap. 156.
Costs in suits
in equity, &o.,
when no pro-
vision is made.
K. S. 121, § 20.
y 51 ct. 320.
in civil suits
by common-
wealth.
)!. S. 121, §22.
4 Met. 42.
-i Gr.ay, 20.
when brought
in name of state
lor use of a per-
son.
i;. S. 121, §23.
ag.aiust com-
monwealth,
liow paid.
K. S. 121, §24.
for common-
wealth, how
ta.Kod.
E. S. 121, §25.
power of ar-
bitrators, &c.,
as to, and of
courts in case
of amend-
nii-nts, &c., not
alFeeted.
U. ,S. 121,§§21,
20.
2 Gush. 325.
by whom
ta.Kod ; notice of
ta.xation.
It. ,S. 121, §27.
8 Met. 273.
appeal from
taxation of by
clerk.
K. S. 121, § 5S.
8 Mot. 275.
how conduct-
ed.
K. S. 121, § 29.
Appellee may
take execution
in certain cases
before appeal is
settled.
K. .S. 121, § 30.
Costs of appeal.
R. S. 121, §31.
suit for a decj-ee against the defendants, if the court is satisfied that such
prayer is either frivolous, a mere pretence, or not essentially connected
with the subject matter of the discovery.
Sect. 16. In suits in equity and in other civil suits and proceedings
in which no provision is expressly made by law, the costs shall be
wholly in the discretion of the court, but no greater sum shall be taxed
than is allowed for similar charges in suits at common law.
Sect. 17. In civil suits and proceedings duly instituted by or in the
name of the commonwealth, and not on the relation, or in behalf, or for
the use, of a private ])erson, the commonwealth shall be liable for costs
in like manner and to the same extent as a citizen is liable.
Sect. 18. When a suit or proceeding is instituted in the name of
the commonwealth, on the relation, or in behalf, or for the use, of a
private person, such person shall be liable for the costs in like manner,
and to the same extent, as if the suit or proceeding had been insti-
tuted in his own name, and judgment may be rendered and execution
issued therefor.
Sect. 19. When a judgment for costs is rendered against the com-
monwealth, the treasurer of the county where the court is held shall
pay the same upon the production of an attested copy of the judgment,
and the sum so paid shall be allowed to him in his account with the
treasury of the commonwealth.
Sect. 20. When costs are taxed for the commonwealth as a party
in a civil suit or proceeding, no fees shall be taxed or allowed for
the travel of the attorney-general or any other attorney for the com-
monwealth.
Sect. 21. Nothing contained in this chapter shall take away or con-
trol the power of arbitrators or referees to make such award concerning
costs as ju.stice and equity require; nor the power of any court to
require costs to be paid by either ]5arty, as the condition of an amend-
ment, continuance, or other order, passed at his motion, or to withhold
and refuse costs, on like occasions.
Sect. 22. Bills of costs shall be taxed by the clerk of the court, or
in suits before justices of the peace, or courts having no clerk, by the
justice. No costs shall be taxed without notice to the adverse party,
if he gives seasonable notice in writing to the clerk or justice of his
desire to be present at the taxation, or causes such notice to be entered
on the docket ; and notice given by or to the attorney in the suit shall
be equivalent to notice by or to the party himself
Sect. 23. Either jiarty may appeal from the taxation by the clerk,
to the court in which the suit is pending, or any one of the justices
thereof.
Sect. 24. The appeal shall be heard and detei-mined at the next
term or session, unless the party who recovers costs elects to have it
determined before one of the justices in vacation, and gives seasonable
notice thereof to the adverse party, in which case it shall be thus
determined. In either case the judgment shall be considered as ren-
dered on the day when the costs are finally taxed and allowed, except
as is provided in the following section.
Sect. 25. If the ap])eal is made by the party who is to pay the
costs, the other party may take out his execution and cause it to be sat-
isfied, if he first gives bond to the adverse party with suflicient surety
or sureties, to be approved by the clerk, in a sum equal to the whole
amount of the costs, conditioned to repay such part of the costs as may
be disallowed on the appeal, and to perform such other order as the
court or judge shall make thereon.
Sect. 26. The court or judge before whom such appeal is heard
may allow to cither party, as justice may require, the costs incurred by
the appeal ; and the same may be added to or deducted from the costs
Chap. 157.] fees of justices of the peace.
783
awarded in the principal suit, or a separate execution may be issued
therefor, as the case may require.
Sect. 27. Parties recovering costs in civil causes shall be allowed as Allowance to
follows • parties recover-
For an attorney's fee in the supreme judicial court or superior court, R- s. 121, §§ 32,
when an issue in law or foot is joined, two dollars and fifty cents; and isJi er. "
in all other cases, one dollar and twenty-five cents: isII'mo I?''
For the declaration in each writ in any justice's or other court, fifty isai^a46.'
cents • ' -^ 1 Met. L-9S.
J or a temi fee in the supreme judicial court or the superior court,
five dollars tor each term while the action is pending ; but the plaintiff
shall be allowed only one tenn fee if the defendant is defaulted without
having appeared :
For attendance before a justice of the peace or police court, thirty-
three cents for each day's actual attendance by the party or his attorney ;
but for not more than three days when the defendant is defiiulted with-
out having appeared ; nor shall attendance be .illowed after the day on
which the action is nonsuited, defaulted, continued, or otherwise finally
disposed of for the tenn, which day shall be entered on the docket :
For travel in either of the courts before mentioned, or before a justice
of the peace^ thirty-three cents for every ten miles' travel ; but no allow-
ance shall be made for travel to or from the clerk's office to take out or
to carry thereto any writ or process, nor for more than eighty miles out
and home, unless the party or some agent or .ittorney for him actually
travels more than forty miles for the special purpose of attending the
court in such cause ; in which case allowance may be made, in the dis-
cretion of the court, according to the distance that is actually travelled.
Sect. 28. When a corporation is entitled to costs, an allowance shall Coats of travel
be made for travel as in other cases, and the travel shall be computed ("on" '""^'"■'''
from the place where the corporation is situated, if it is in its u.ature E. s. 131, §35.
local, otherwise from the place in which its business is chiefly or com-
monly transacted.
CHAPTER 157.
OF THE FEES OF CERTAIN OFFICERS.
Skctios
Section
1.
Fees of officers.
14. Fees of recording officers, &c., in cases not
2.
of justices of the peace.
specified.
3.
of clerks of the courts.
15. " Page " defined.
4.
of BheriiTs.
16. List of fees to be posted up in public offices.
5.
of jailers.
17. Officer to give bill of fees received, if re-
6.
of coroners.
quired.
7.
of constables.
18. to indorse fees on writ, &c.
8.
of jurors, witnesses, appraisers,
commiB-
19. District-attorney may refuse to allow fees,
sioners, &c.
&c., in certiiin cases.
9.
of town clerks.
20. Witnesses' fees in certain cases to be ad-
10.
of ministers, for marriages.
justed by clerk, &c.
11.
of the secretary of the commonwealth.
21. to be refused in certain cases.
12.
of registers of deeds.
22. Officers not to purchase orders, &c.
13.
of notaries public.
23. Penalty for making false certificites of wit-
nesses, &c.
Section 1. The fees of the several officers hereinafter mentioned, Fees of officers.
for the ser\'ices specified with respect to each of them, shall be as ^^5^^^;^ §2'
follows, viz. : —
JUSTICES OF THE PEACE.
Sect. 2. For a blank writ of original summons, or attachment and of justices of
summons, seventeen cents, or if issued by a police court, five cents : *'"' '"''"'''■
784
FEES OF CLERKS OF THE COURTS.
[Chap. 157.
Fees of justices
of the peace.
R. S. l-», § 1.
1843, 71.
1852, 314, § 9.
1859, 241.
For a subpoBna for one or more witnesses, ten cents :
For the entry of an action, or filing a complaint in civil causes, in-
cluding filing of papers, examining, allowing, and taxing, the bill of
costs, and entering up the judgment and recording the same, sixty-one
cents :
For the copy of a record or other paper, if less than one page, ten
cents ; if more than one page, at the rate of twelve cents a page :
For a writ of execution, twentj'-five cents :
Taking a recognizance to prosecute an appeal, including principal and
suret}', twenty cents :
Taking a deposition, fifty cents ; for writing the dojjosition and cap-
tion, at the rate of twelve cents a page ; and for the notice to the adverse
party, twenty cents ; the justice shall certify on the deposition his own
fees, and those of the deponent :
For administering an oath required by law, except on a trial or exam-
inatiou before himself, whether to one or more persons at the same time,
twenty cents :
Taking the acknowledgment of a deed, by one or more gi'antors, if
done at the same time, seventeen cents:
Granting a warrant of appraisement of the estates of deceased per-
sons, of strays, forfeited goods, and in all other cases, twenty cents :
Receiving a complaint and issuing a warrant in criminal cases, fifty
cents :
Entering a complaint in criminal jjrosecutions, rendering judgment
and recording the same, examining,
filing the papers, seventy-five cents
For a mittimus for the commitment of any person on a criminal accu-
sation, twenty-five cents :
For tlie trial of an issue with a jury, one dollar and fifty cents; with-
out a jury, one dollar:
And for travel in the perfonnance of any ofiicial duty, at the rate of
fifty cents for every ten miles in going and returning, but only one
travel shall be allowed for returning papers to any court.
In all cases where the attendance of two or more justices is required,
each of them shall be entitled to the fees prescribed, for all services ren-
dered by him personally.
allowing, and taxing, the costs, and
of clerks of
the courts.
E. S. 122,§§3,;
1853, 309.
1855, 449, § 14.
1856, 240.
CLEBKS or THE COURTS.
Sect. 3. For the entry of an action, complaint, or petition, in a civil
suit or proceeding in court, one dollar ; and before the county commis-
sioners, one dollar and twenty-five cents :
For each term during which an action, comjjlaint, or petition, is pend-
ing, forty cents :
For a writ of execution, whether in real or personal suits or proceed-
ings, twenty-five cents :
For the entry of an indielmcnt, presentment, com]ilaint, or informa-
tion, in a criminal case, including the recording of judgment, taxing
costs, and filing papers, sixty-five cents:
For entry of an ai)pearance in a criminal case, ten cents :
For the continuance of a criminal case, twelve cents :
For entering and recording a verdict in a criminal case, twenty cents :
For taking a recognizance, twenty cents:
For a warrant in any criminal suit or proceeding, twenty cents :
For a blank writ of attachment and summons, or an original sum-
mons, five cents :
For a writ of review, or other special writ, forty cents :
For a subpa?na for one or more witnesses, ten cents :
For a venire facias for jurors, six cents:
Chap. 157.] fees op sheriffs. 785
For any writ not before mentioned, forty cents: Fees of clerks
For examining and casting the grand jurors' accounts, and order °'^""^™"''*'*-
thereon, tliirty cents:
For examining any other account, eight cents :
For the certificate of the proof of a deed in court, twentj' cents :
For copies of records dnd papers containmg less than one page, ten
cents; one jsage or more, at the rate of twelve cents a page :
For the warrant for a county tax, twenty cents :
For a warrant to lay out or alter <a road, twenty cents:
For all other services as clerks of the county commissioners, the same
fees as are allowed in like cases in court.
SHERIFFS.
Sect. 4. For the service of an original summons or scire facias, of sheriffs,
either by reading the same or leaving a copy, thirty cents for each ^- 1- J.'J '."j
defendant on whom service is made. iS43,'r57§2. '
For the service of a capias, or of an attachment witli summons, ml] IfH'
thirty cents for each defendant on whom it is served, and if the officer, i^sr.', iss.
by the direction of the plaintiff or his attorney, makes a special service l^as^s'.'in.
of such writ, either by attaching property or aiTcsting the body, he ^" ^^- "' 5 "'•
shall be entitled to fifty cents for each defendant on whom the writ is
so served :
For a copy of any precept, when required by law or fiirnished to any
]iarty at his request, at the rate of twelve cents a page :
For taking bail, and furnishing and writing the bail bond, twenty
cents, to be paid by the defendant, and taxed in his bill of costs, if he
prevails :
For serving a warrant, thirty cents for each person on whom it is
served :
For summoning witnesses in civil or criminal cases, ten cents for each
witness ; and in criminal cases, the court may under special circum-
stances allow such further sum as it may judge reasonable:
For dispersing venires for jurors, treasurers' wan-ants, and proclama-
tions of all kinds, eight cents each, without allowance for travel :
For serving executions in personal actions, and collecting damages or
costs on any execution, warrant of distress, or other like jiirocess, for any
sum not exceeding one hundred dollars, four cents for every dollar; all
above one hundred dollars and not exceeding two hundred dollars, two
cents for every dollar ; and for aU above two hundred dollars, one cent
for every dollar :
For serving a writ of seisin or possession in real actions, one dollar
and ten cents ; and if served on more than one piece of land, seventy-
five cents for each piece after the first :
For serving an execution upon a judgment for partition, or for
assignment of dower, one dollar a day.
For travel in the service of all original writs, executions, wairants,
subjKfnas, and otlier like processes, four cents a mile, to be computed
from the place of service to the court, or place of return ; only one
travel to be allowed for the service of any one precept, and if the same
]>rec-e]it is served on more than one person, the travel shall be com-
]iuteil from the most remote place of service, ^-ith such further travel
as was necessary in serving it ; if the ilistanee from the place of service
to the ]ilace of return exceeds fifty miles, only one cent a mile shall be
allowed for all travel exceeding that distance :
For the attendance of a dejnity sheriff upon a court of record, or a
meeting of the county commissioners, bj' their order, two dollars a day ;
and lor travel out and home once a week during the attendance, four
cents a mUe, to be paid out of the county treasuiy :
66* 99
786
FEES OP JAILERS, CORONERS, CONSTABLES, JURORS, &o. [ChAP. 157.
Fees of sheriffs. For returning to the office of the secretary of the commonwealth the
votes for state, county, and district officers, one travel for the whole, at
the rate of eight cents a mile, to be computed from the place of his
abode to the secretary's office ; for serving precepts for the election of
representatives in congress, fifty cents each, and for returning the votes
at such elections, eight cents a mile, to be cohiputcd as aforesaid ; for
the service of subpoenas issued by order of the legislature or either
branch thereof, the same fees allowed for tlie service of subpa?nas issued
by a court, to be paid out of the treasury of the commonwealth.
And no sheriff, deputy-sheriff, coroner, or constable shall be entitled
to any fees for attendance as a witness in a criminal case while he is
paid for attending as an officer of the same court, or on the same exam-
ination or trial.
JAILEES.
Sect. 5. For every prisoner committed or discharged in the county
of Suffolk, twenty cents.
CORONERS.
Sect. 6. For granting a warrant and taking an inquisition on a
dead body, three dollars ; and if his attendance is required more than
one day, two dollars for each day after the first; if a view only is taken,
and no inquest is held, two dollars ; which fees shall be paid by the
state or count)', agreeably to the provisions of ehajjter one hundred and
seventy-five, section fourteen ; but if the inquisition or view is upon more
than one body at the same time, no additional fees shall be allowed.
For other services, fees allowed to sheriffs for Uke services.
of jailers.
E. S. lli, § 6.
1836, 27".
of coroners.
E. S. ri>, § 7.
1800, 133, §§ :;, 3.
of constables.
K. S. 122, § 8.
CONSTABLES.
Sect. 7. For serving a venire, twenty-five cents and four cents a
mile for travel to the ]jlace of return; and for summoning jurors upon
a coroner's inquest and attendance thereon, at the rate of ninety cents
a day ; to be paid out of the county treasury.
For attending a court of record by order of the court, and for ser-
vices performed there, the fees allowed to deputy-sherifl's in like cases.
For other services, the same fees as are allowed to sheriffs for like ser-
vices, unless other provision is expressly made.
of jurors, wit-
nesses, apprais-
ers, commis-
Biouers, &c.
R. .S. 122, § 10.
1848, 123, 2n.
1«'J, 208.
1852, 314, § 8.
1834, 32fi.
1855, 120, §§1,2.
1851), 1%.
JURORS, WITNESSES, APPRAISERS, COMMISSIONERS, &C.
Sect. 8. For attending as a grand juror or traverse juror in any
court, except before a justice of the peace, or police court, two dollars
a day for attendance, and eight cents a mile for travel out and home ;
for attending as a juror before a sheriff", one dollar and seventy-five cents
a day, and before a police court, justice of the peace, or coroner, or on
any other occasion prescribed by law, one dollar and twenty-five cents
a day for attendance, and six cents a mile for travel out and home.
For attending as a witness in a civil or criminal cause in the supreme
judicial court, superior court, or before county commissioners, or juries
summoned to assess damages under chapters forty-three, sixty-three, and
one hundred and forty-nine, one dollar and twenty-five cents a day; for
attendance before a justice of the peace, referees, arbitrators, or police
court, or on any other occasion, fifty cents a day, and in all eases, four
cents a mile for travel out and home ; and each witness shall certify in
writing the amount of his travel and attendance :
For attending as a witness in any case pending before the legislature,
one dollar and twenty-five cents a day, and if the witness lives out of
Boston, four cents a mile for travel to and from his place of abode, to
be paid out of the treasury of the commonwealth if lie is summoned
by the legislature or either branch thereof; but in contested elections
I
Chap. 157.] fees op town clerks, registers of deeds, notaries, &c. 787
of members of the house of representatives no party sliall be so paid Foesofwit-
for witnesses, unless the committee by -which the case is heard certifies pJSsl'&c.
that there was reasonable cause for the attendance of such witnesses.
For the services of appraisers of the estate of deceased persons;
appraisers of real estate taken on execution ; persons apjpointed under
legal process for assigning dower or making partition of real estate ;
sherifis' aid in criminal cases ; and of all other jjrivate persons pertbrm-
ing like service required by law, or in the execution of legal process,
when uo express provision is made for the compensation therefor; one
dollar a day each, and four cents a mile for travel out and home.
TOWN CLERKS.
Sect. 9. For entering notice of an intention of maniage and issuing of town
the certificate thereof; and for entering the certificate of maniage filed by j!'^s''Y>> s§ ii
persons married out of the state, fifty cents, to be paid by the parties : i^'
For a certificate of a birth or death, ten cents : iSo;ui,'|4.'
For copies of town records and other documents furnished to any
person at his request, if containing less than one page, ten cents, and if
more, at the rate of twelve cents a page.
MINISTEnS, &C., FOR IIAUKIAGES.
Sect. 10. For lawfully solemnizing and certifying a man-iage by a of ministers,
minister or justice of the peace, one dollar and twenty-five cents. riSp/"/"""
E.S. 122, §11.
SEOEETAKT OF THE COSIMONWEALTH.
Sect. 11. For a copy of any resolve or order of the legislature, or of ofthesocrcta-
the governor and council, of a private or local nature, furnished to any mouw'aith'™
private person, fifty cents : R- s. 122, §'i3.
For copies of all other papers so furnished, at the rate of twelve cents ^''^^^ "'S^-
a page.
REGISTER OF DEEDS.
Sect. 12. For entering and recording a deed or other paper, certi- of registers of
fying the same on the original, and indexing it, and for all other duties ism,*31i, §1.
pertaining thereto, twenty-five cents; and if it contains more than one
page, at the rate of twenty cents for each page after the first; to be paid
when the instrument is left for record :
For all copies, at the rate of twenty cents a page :
For entering in the margin a discharge of a mortgage, twenty-five
cents.
NOT^VEIES PUBLIC.
Sect. 13. For the protest of a bill of exchange, order, draft, or check, of notaries
for non-acceptance or non-payment, or of a promissory note for non- 1 "jy'';i:j, § 1.
payment, if the amount thereof is five hundred dollars or more, one 1 Uray, 175.
dollar ; if it is less than five hundred dollars, fifty cents ; for recording
the same, fifty cents ; for noting the non-acceptance or non-payment of
a bill of exchange, order, draft, or check, or the non-jiayment of a prom-
issory note, seventy-five cents ; for each notice of the non-acceptance
or non-payment of a bill, order, draft, check, or note, given to a party
liable for the payment thereof, twenty-five cents : provided, that the
whole cost of protest, including necess.ary notices and the record, when
the liill, order, draft, check, or note, is of the amount of five hundred
dollars or upwards, shall not exceed two dollars ; and when it is less
than five hundred dollars, shall not exceed one dollar and fifty cents ;
and the whole cost of noting, including recording and notices, shall in
no case exceed one dollar and twenty-five cents.
788
FEES — SPECIAL PROVISIONS.
[Chap. 157.
Fees in cases
not specified.
R. S. 12'A§21.
1855, 311, §§1,3.
r Gray, 132.
13 Gray, 77.
" Page " de-
fined.
K. S. 122, § 22.
List of fees to
be posted up in
public offices.
R. S. 122, § 17.
Officer to give a
bill of fees re-
ceived, if re-
quired.
K. S. 122, § 18.
1S52, 312.
to indorse
fees on writ,
&c.
K. S. 122, § 9.
District^attor-
ney may refuse
to allow fees,
&c., in certain
cases.
1855, 180, § I.
TVitnesses' fees
in certain eases
tu be adjusted
by clerk, &c.
1855, 180, § 2.
to bo refused
in cert-oin cases.
1854, 389.
Officers not to
purciiase or-
ders, &c.
1855, 180, § 3.
Penalty for
making false
certificates of
witnesses, &c.
1854, 380.
SPECIAL PROVISIOSS.
Sect. 14. In cases not expressly provided for by law, the fees for
any official duty or service of recording officers shall be at the same rate
as is jn-escribed in section twelve, and of other public officers at the
same rate as those prescribed in this chapter for like services.
Sect. 15. The word "page," when used as the measure of computa-
tion, shall mean two hundred and twenty-four words.
Sect. 16. Each of the officers before mentioned, who keeps a ]jublic
office, shall always keep posted up in some conspicuous and convenient
place in his office, a printed or written list of the fees prescribed in this
chapter, so far as they relate to him.
Sect. 17. Every officer, uj)on receiving fees for any official duty or
service, shall, if required by the person paying the same, make out in
writing a particular account of such fees, specifying for what they re-
sj)ectively accrued ; and if he refuses or neglects so to do, he shall for-
feit to the party paying the fees thi'ee times the amount so paid, to be
recovered in an action of tort.
Sect. 18. All travelling fees and fees for the seiwice of writs or pre-
cepts of which an officer is required to make a return, shall be indorsed
on the writ or ]irecept, or they shall not be allo-ncd.
Sect. 19. When the administration of justice or the progress of
business in criminal proceedings is delayed, obstructed, or pre^•ented,
by the negligence of a magistrate in certifying and returning recog-
nizances, records, or other official papers, which it is his duty to transmit
to a higher court, or in omitting the formalities required by law, the
district-attorney, with the approbation of the court, may, either in whole
or in part, refuse to allow the fees to which such magistrate would oth-
erwise be entitled.
Sect. 20. When witnesses in criminal trials are in attendance in two
or more cases pending at the same time before the same tribunal, they
shall not be allowed full travel and attendance in each case, but the
clerk of the court, under the direction of the district-attorney, may
reduce and apportion the same as may be just and equitable, allowing
at least one tr.avel and attendance.
Sect. 21. If on the trial of a criminal ease it appears that a witness
has induced tlie defendant to commit the offi?nce with which he is
charged, with the intent to appear as a witness ag.-iinst him, the court or
magistrate may in his discretion refuse to allow him his fees.
Sect. 22. No sheriff, deputy-sheriff, or other officer, taking the cer-
tificates of witnesses in criminal cases, shall purchase or discount, or have
any interest in orders drawn or demands upon the treasury by such
witnesses.
Sect. 23. Whoever, with a design to defraud, signs, or procures to
be signed, a certificate of attendance or travel as a witness before a court,
justice of the peace, or reference founded upon any rule of court, in any
case in which the witness did not so attend, or for a greater number of
days than he actually attended, or for a greater nuinlier of miles than
he actually travelled, upon which certificate the attendance or travel so
claimed is alloweil in the taxation of costs, shall forfeit thirty dollars for
each offence, to be recovered on complaint or indictment to the use of
the commonwealth, or by action of tort to the use of any person against
whom such excessive costs were taxed, together with four times the
whole amount taxed for attendance or travel on such false certificate,
and double costs in the action of tort: providecf, that such complaint,
indictment, or action, is commenced within two years after the commit-
ment of the offence.
PART lY.
OP CRIMES, PUNISHMENTS, PROCEEDINGS IN
CRIMINAL CASES, AND PRISONS.
TITLE I.
OF CRIMES AND PUNISHMENTS.
Chapter 158. — Of the Rights of Persons accused.
Chapter 159. — Of Offences against the Sovereignty of the CommonwealtL
Chapter 160. — Of Offences against the Person.
Chapter 161. — Of Offences against Property.
Chapter 162. — Of Forgery and Offences against the Currency.
Chapter 163. — Of Offences against Public Justice.
Chapter 164. — Of Offences against the Public Peace.
Ch.\pter 165. — Of Offences against Chastity, Morality, and Decency.
Ch.\pter 166. — Of Offences against the Public Health.
Chapter 167. — Of Offences against Public Policy.
CH.APTER 168. — Of Felonies, Accessories, Abettors, and Attempts to commit
Crimes.
CHAPTER 158.
OF THE EIGHTS OF PERSONS ACCUSED.
Sectios
1. Persons arrested to be informed of o^oimd
of arrest, &c. Penalty for false answers,
&c.
2. Officer who arrests, &c., on false pretences,
bow punished.
3. Offences to be prosecuted by indictment,
except, &c.
Section
4. Party accused may have counsel, &c.
5. Persons indicted, how convicted.
6. Former acquittal, when a bar to subsequent
prosecution.
7. when no defence.
8. No person to be punished until legally con-
victed.
Sectiox 1. Every person aiTcsted hy virtue of process, or taken into Persons arrest
custody by an officer in thi,>< state, has a right to know, from the officer pj} J," !lrouSi'of
•who arrests or claims to detain him, the tnie ground on which the aiTest jirrestr&c.
is made ; and an officer who refuses to answer a question relative to the aise answers,
reason for such arrest, or answers such question untruly, or assigns to *<l-^ ^
the jierson arrested an tmtrue reason far the aiTcst, or neglects on request ~' " ' ^
to exhibit to the jjerson an-ested, or any other person acting in his behalf,
the precept by virtue of which such arrest is made, shall be punished
by fine not exceeding one thousand dollars, or by imprisonment in the
house of correction not exceeding one year.
(789)
790
OFFENCES AGAINST SOVEREIGNTY OP STATE. [ChAP. 159.
Officer who ar-
rests, &c., on
false pretences,
how puuislied.
1852, 224, § 2.
Offences to be
prosecuted by
indictmeut, ex-
cept, &c.
E. S. l'J3, § 1.
Party accused
may 'have coun-
sel, &c.
E. S. 123, § 2.
Decl. of rights,
art. 12.
Persons indicts
ed, how con-
victed.
E. S. 123, § 3.
Former acquit-
tal, when bar to
subsequent
prosecution.
K. S. 123, § 4.
when no de-
fence.
E. S. 123, § 5.
12 Pick. 49G.
No person to
be punished
until let,^ally
convicted.
E. S. 123, § 6.
Sect. 2. Every officer wlio arrests, takes into or detains in custody,
a person in this state, pretending to have a process when he has none,
or pretending to have a ditierent process from tliat which he lias, shall
be punished by fine not exceeding one thousand dollars, or by impris-
onment in the house of correction not exceeding one year.
Sect. 3. No person shall be held to answer in any court for an
alleged crime or offence, unless upon indictmeut by a grand jury, except
in the following cases :
First. When a prosecution by information is expressly authorized by
statute ;
Second. In proceedings before a police court or justice of the peace;
and,
Third. In proceedings before courts martial.
Sect. 4. The accused shall at his trial be allowed to be beard by
counsel, may defend himself, and shall have a right to produce witnesses
and proofs in his favor, and to meet the witnesses produced against him.
face to face.
Sect. 5. No person indicted for an offence shall be convicted thereof,
unless by confession of his guilt in open court, or by admitting the truth
of the charge against him by his ])lea or demurrer, or by the verdict of
a juiy accepted and recorded by the court.
Sect. 6. No person shall be held to answer on a second indictment for
an offence of which ho has been acquitted by a jury ujion the facts and
merits; but such acquittal may be pleaded by him in bar of any subse-
quent i)roseciition for the same offence, notwithstanding any defect in
the form or substance of the indictment on which he was acquitted.
Sect. 7. If a person is on his trial acquitted upon the ground of a
variance between the indictment and the proof, or upon an exception to
the form or substance of the indictment, he may be arraigned .again on
a new indictment, and tried and convicted for the same offence, notwith-
standing such former acquittal.
Sect. 8. No person shall be punished for an offence, unless duly and
legally convicted thereof, in a court having competent jurisdiction of the
cause and of the person.
CHAPTEE 159.
OF OFFENCES AGAINST THE SOVEREIGNTY OF THE COMMONAVEALTH.
Section
1. Treason defined.
2. puuishmcnt of.
Section
3. Treason, misprision of.
4. two witnesses required to convict of.
Treason dc- Sectiox 1. Treason against this commonwealth shall consist only in
k"s''i'4, §1 levying war against the same, or in adhering to the enemies thereof,
Dec. of ri-iits, giving them aiil and comfort.
""punishment Sect. 2. Whoever commits treason against this commonwealth shall
of. i862,2.-.ii,§i. be punished by imprisonment in the state prison for life.
SeeCh. iro,§54. g^cT. 3. Whoever, having knowledge of the commission of treason,
S. s??24!'§'3.° ' conceals the same, and does not as soon as may be disclose and make
.859, 198. known such treason to the governor, or one of the justices of the supreme
judicial court, or the superior court, shall be adjudged guilty of the
offence of misprision of treason, and be jtunished by fine not exceeding
one thousand dollars, or by imprisonment in the state prison not exceed-
ing five years, or in the jail not exceeding two years.
Chap. 160.]
OFFENCES AGAINST THE PERSON.
791
Sect. 4. No person shall be convicted of treason but by the testi- Treason, two
mony of two lawful witnesses to the same overt act of treason whereof qirel tcT ^^
he stands indicted, unless he confesses the same in open court.
con-
vict of.
E. S. 124, § 4.
CHAPTER 160.
OF OFFENCES AGAINST THE PERSON.
Section
1. Murder in first degree.
2. second desTc^*
3. Degree to be found by jury.
4. Punishment in first degree.
5. second degree.
6. Forms of indictments not changed.
7. Petit treason abolished, &c.
8. Body of murderer may be dissected.
9. Murder iu a duel out of state, &c., where
prosecuted.
10. Accessory in such duel.
11. Former conviction, &c., out of the state,
may be pleaded in bar.
12. Enga^ug in duel; challenging, &e.
13. Accepting or carrying challenge, and abet-
ting a duel.
14. Posting another, &c.
15. Prize fighting.
IG. Aiding, advising, &c., in such fight,
17. Leaving Bta,te to fight.
IS. ilanslauglitor.
19. Maiming, disfigruring, or aiding therein.
20. Assault with intent to murder, maim, &c.
Sectiox
21. Attempt to murder by poisoning, &c.
22. Robbery, being armed, &c.
23. Assault with intent to rob, or murder,
being armed.
24. Robbery, not being armed.
25. Assault with intent to rob or steal, not
being armed.
2G. Rape.
2". Assault with intent to commit rape.
2S. Attempts to extort money, &c., by threats.
29. False accusation with intent that party
shaU be held as fugitive slave. Wheu
made by a public officer, &c.
30. Kidnapping, &c., or selling for slave, &c.
31. where to be prosecuted.
32. Poisoning food, medicines, springs, &c.
33. Assaults not before mentioned, how pun-
ished.
34. Loss of life by negligence, &c., of carriere.
35. Negligence, &c., of persons having care of
public conveyances.
30. Drivers of stage coaches, &c., leaving
horses without charge, &c.
Sectiox 1. Murder committed with deliberately premeditated malice
aforethought, or in the commission of, or attempt to commit, any crime
punishable with death or imprisonment for life ; or committed with ex-
treme atrocity or cruelty, is murder in the first degree.
Sect. '2. Mi^rder not appearing to be in the first degi-ee is murder in
the second degree.
Sect. 3. The degree of murder shall be found by the jury.
Sect. 4. Whoever is guilty of murder in the first degree shall sufier
the punishment of death. ^'^^i i^^' H-
Sect. 5. Whoever is guilty of murder in the second degree shall be
punished by imprisonment in the state prison for life.
Sect. 6. Nothing herein shall be construed to require any modifica-
tion of the existing forms of indictment. scnsh. 295.
Sect. 7. The distinction between murder and petit treason is abol-
ished, and the last-named oifence shall be prosecuted and punished as
murder.
Sect. 8. On every conviction of the crime of murder, the court may,
in their discretion, order the body of the convict, after his execution, to
be dissected, and the slioriff shall in such case deliver it to a professor
of anatomy and surgery, in some college or public seminary, if requested ;
otherwise it shall, unless his friends desire it lor interment, be delivered
to any surgeon attending to receive it, and who will engage for the dis-
section thereof.
Sect. 9. Whoever, being an inhabitant or resident of this state, by
previous appointment or engagement made within the same, fights a
duel without the jurisdiction of the state, and in so doing infiicts a mor-
tal wound upon any person, whereof he afterwards dies within this state,
Blurder in first
degree.
1858, 154, § 1.
second de-
gree.
1858, 154, § 2.
Degree to be
found by jury.
1858, 154, §3.
Punishment In
first degree.
in second de-
gree.
1858, 154, § 4.
Forms not
changed.
1858, 154, § fi.
Petit treason
abolished, &c.
R. S. 133, § 15.
Body of mur-
derer may be
dissected.
R. S. 125, § 2.
Murder in a
duel out of
state, &c.,where
prosecuted.
R. S. 125, §3.
792
OFFENCES AGAINST THE 'PERSON.
[Chap. 160.
Accessory in
duel fought out
of the state, &c.
K. S. 135, § 1.
Former convic-
tion, &c., out of
state, may be
pleaded iu bar.
K. S. l-a, § 5.
Enn-aging in
duel ; challeng-
ing, &c.
K. S. 126, § 6.
Accepting or
carrying; clial-
lenge ; aud abet-
tiug a duel.
K.S. 125, §7.
Posting anoth-
er, &c.
E. S. 125, 5 8.
rrize fighting.
ISIU, 4'J, § 1.
7 Gray, 321.
Aiding, advis-
ing, &c., in such
flglit.
1S41I, 4», § 2.
7 Gray, 321.
Leaving state
to flght.
1S4U, 4'.», § 3.
Manslaughter.
K. S. 125, §9.
Maiming, dis-
figuring, or aid-
ing therein.
K. S. 125, § 10.
shall be deemerl guilty of murder within this st.ate, and may be indicted,
tried, and convicted, in the county where the death happens.
Sect. 10. Whoever, being an inhabitant or resident of this state, by
previous appointment or engagement made within the same, becomes
the second of either party in such duel, and is present as a second when
such mortal wound is inflicted, whereof de.ath ensues within this state,
shall be deemed to be an accessory before the fact to the crime of mur-
der in this state, and may be indicted, tried, and convicted, in the county
where the death happens.
Sect. 11. Any person indicted under either of the two preceding
sections, may plead a former conviction or acquittal of the same offence
in any other state or country, and such plea, if admitted or established,
shall be a bar to all further or other proceedings against him for the same
offence within this state.
Sect. 12. Whoever engages in a duel with a deadly weapon, al-
though no homicide ensues, or challenges another to fight such duel, or
sends or delivers a written or verbal message purporting or intended to
be such challenge, although no duel ensues, shall be punished by imprison-
ment in the state prison not exceeding twenty years, or by fine not
exceeding one thousand dollars and imprisonment in the jail not exceed-
ing three years ; and shall be incapable of holding, or of being elected
or appointed to, any place of honor, profit, or trust, under the constitution
or laws of this state, for the term of twenty years after such conviction."
Sect. 13. Whoever accepts such challenge, or knowingly carries or
deli\'ers any such challenge or message, whether a duel ensues or not,
and whoever is present at the fighting of a duel with deadly weapons
as an aid, second, or surgeon, or advises, encourages, or promotes, such
duel, shall be punished by imprisonment in the jail not exceeding one
year, or fine not exceeding five hundred dollars ; and shall be incapaci-
tated, as mentioned in the preceding section, for the term of five years
after such conviction.
Sect. 14. Whoever posts another, or in writing or jirint uses any
reproachful or contemptuous language to or concerning another for not
fighting a duel, or for not sending or accepting a challenge, shall be
punished by imprisonment in the jail not exceeding six months, or by
fine not exceeding one hundred dollars.
Sect. 15. Whoever by previous appointment or arrangement meets
another person and engages in a fight, shall be j)unished by imprison-
ment in tlie state prison not exceeding ten years, or by fine not exceed-
ing five thousand dollars.
Sect. 16. Whoever is present at such fight as an aid, second, or
surgeon, or advises, encourages, or i>romotcs, such fight, shall be ]iun-
ished by imprisonment in the state prison not exceeding five j'ears, or
by imprisonment in the jail not exceeding three years and fine not
exceeding one thousand dollars.
Sect. 17. W^hoever, being an inhabitant or resident of this state,
by previous appointment or engagement made therein, leaves the state
and engages in a fight with another ]ierson, without the limits thereof,
shall be punished by imprisonment in the state jirison not exceeding five
yeans, or by fine not exceeding five thousand dollars.
Sect. 18. Whoever commits manslaughter shall be punished by
imprisonment in the state prison not exceeiling twenty years, or by fine
not exceeding one thousand dollars and imprisonment in the jail not
exceeding three years.
Sect. 19. Whoever, with malicious intent to maim or disfigure, cuts
out or maims the tongue, puts out or destroys an eye, cuts or tears off
an ear, cuts, slits, or mutilates, the nose or lip, or cuts off or di.sables a
limb or member, of any other person ; and whoever is privy to such
intent, or present aiding in the commission of such ofl:ence ; shall be
Chap. 160.] offences against the person. 793
punished by imprisonment in the state prison not exceeding twenty-
years, or by fine not exceeding one thousand dollars and imprisonment
in the jail not exceeding three years.
Sect. 20. Whoever ass.iults another with intent to murder, or to Assault with
maim or disfigure his person in any of the ways mentioned in the pre- Iu*r™mai',^&'^
ceding section, shall be punished by imprisonment in the state prison K. s. ns, § ii.
not exceeding ten years, or by fine not exceeding one thousand dollars
and imprisonment in the jail not exceeding three years.
Sect. '21. Wlioever attempts to commit murder by poisoning, Attomptto
drowning, or strangling, anotlicr person, or by any means not consti- ""'"n^^"^ "jfc.^"'
tuting the crime of assault witli intent to murder, shall be punished by i^- s. Im, § 12.
imiirisonment in the state jirison not exceeding twenty years, or by fine
not exceeding one thousand dollars and imprisonment in the jail not
exceeding three years.
Sect. 22. Whoever ass.aults another, and feloniously robs, steals, itnhbory, being
and takes, from his person, money or other ]iro]ierty which may be the J;"s''j'.,'3'^;i3
subject of larceny; such robber being armed with a dangero\is wea]ion, ish'.i.'i-ir.'
with intent if resisted to kill or maim the jierson robbeil; or being so J'^iiJI'sosi'^'
anned wounds or strikes tlie person robbed ; shall be punished by im-
prisonment in the state ])rison for life.
Sect. 23. Whoever, being armed with a dangerous wea]wn, assaults Assault -with
another with intent to rob or murder, shall be punished by imprison- I^.^'heiu™'''
ment in the state prison not exceeding twenty years. k. s. lij, § 11. aimwi.
Sect. 24. Whoever, by force and violence, or assault and putting in Kobbory, not
fear, feloniously robs, steals, and takes, from the person of another, 1 "'i^' ^""s'Jg
money or other property which may be the subject of larceny, (such 7 iinss. ji-z.
robber not being armed with a dangerous weapon,) shall be punished "^ ' ^'*'
by imprisonment in the state prison for life, or for any term of years.
Sect. 25. Whoever, not being armed with a dangerous weapon, Assault with
assaults another with force and violence, and with intent to rob or '"'""* to rob,
1 1 11 1 • 1 1 1 • • '1 • T &c., not bem;^
Steal, shall be punished by imprisonment in the state prison not exceed- armed.
ing ten years. ''• **• ^'*' ^ '"•
Sect. 26. Whoever ravishes and carnally knows a female of the age n.ape.
of ten years or more, by force and against her will, or unlawfully and I'J'pick.'ilg^'
carnally knows and abuses a female child under the age of ten years, 4 Gray, -^
shall be punished by imimsonment in the state ])rison for life. ec 1. . ,5ji.
Sect. 27. Whoever assaults a female, with intent to commit a rape. Assault, with
shall be punished by iin]irisoninent in the st.ate prison for any term of '"?™* *J^ '^°™"
years, or for life, or by fine not exceeding one thousand dollars and u. s. 125, § 19.
imprisonment in the jail not exceeding three years. ■* ^^'''" ^^^' ■
Sect. 28. Whoever, either verbally or by a written or printed com- Attempts to ex-
munication, maliciously threatens to accuse another of any crime or ic"!* by 'threats,
offence, or by such communication maliciously threatens an injury to the }';.^- '"^' § '''•
person or projserty of another, with intent thereby to extort money or '
any pecuniary advantage whatever, or with intent to compel the person
so threatened to do .any act ag.ainst his will, shall be punislied by impris-
onment in the state prison not exceeding fifteen years, or in the house of
correction not exceeding ten years, or by fine not exceeding five thou-
sand dollars, or by such im))risonment and tine.
Sect. 29. Wlioever wilfully or falsely accuses another person of a False acousa-
crime or offence, with intent tliat the jiarty so accused shall be held to {]™ party "I,™*
answer any process, or be arrested on any jirocess under the act of be held as fu^n-
congress passed September eighteenth, A. D. eighteen hundred and fifty, Vvheu^made by
entitled, "An Act to amend the act respecting fugitives from justice, and public officer,
persons escaping from the service of their masters," shall be punished by iss's, no.
fine of not less than one thousand, nor exceeding three thousand, dol-
lars, and by imiirisonment in the jail or house of correction not less than
one year nor exceeding five years. A sheriff, constable, or other public
officer, who makes such false or wilful accusation, witli such intent, shall,
67 100
794
OFFENCES AGAINST THE PERSON.
[Chap. 160.
Kidnftppinp,
&c., or Bclliug
for slave, &c.
E. S. IM, §20.
12 Met. 50, 78.
where to be
prosecuted.
K. S. 125, §21.
Poisoniug food,
mcdifines,
sprinj^a, tte.
K. S. 120, § 22.
Assaults not be-
fore meutiniied,
Iiow puuislied.
K. S. 125, §23.
Loss of life by
nej^lif^rcnoe, &c.,
of carriers,
isio, so.
11 Cash. 512.
5 Gray, iTJ.
Negligence,
Ac, ot persons
having care of
public convey-
imces.
1853, 118.
Drivers of stagpe
coaches, &e.,
leavinf^ liorses
without charge,
&c.
JR. S. 51,§4.
in addition to the above-named jicnalty, be forever disqualified from
lidding any office under the laws or constitution of this state.
Sect. 30. Whoever, without lawful authority, forcibly or secretly
confines or imprisons another person Avithin this state against his will,
or forcibly carries or sends such person out of this state, or foi-cibly seizes
and confines, or inveigles, or kidnaps, another person, with intent either
to cause him to be secretly confined or imprisoned in this state against
his will, or to cause him to be sent out of this state against his will, or
to be sold as a slave, or in any way held to service against his will ; and
whoever sells, or in any manner transfers, for any term, the service or
labor of a negro, mulatto, or other person of color, who has been unlaw-
fully seized, taken, inveigled, or kidnajijied, from this state, to any other
stiite, place, or country; shall be punished by imprisonment in the state
prison not exceeding ten years, or by fine not exceeding one thousand
dollars and imprisonment in the jail not exceeding two years.
Sect. 31. Every offence mentioned in the preceding section may be
tried either in the county in which it is committed, or in any county in
or to which the person so seized, taken, inveigled, kidnapped, or sold, or
whose services are so sold or transferred, is taken, confined, held, earned,
or brouglit ; and upon the trial of any such ofl'ence, the consent thereto
of the person so taken, inveigled, kidnapped, or confined, shall not be .a
defence, unless it is made satisfactorily to appear to the jury that such
consent was not obtained by fi'aud, nor extorted by duress or threats.
Sect. 32. Whoever mingles any poi.son with food, drink, or medi-
cine, with intent to kill or injure another person, or wilfully ])oisons any
spring, well, or reservoir of water, with such intent, shall be jnmished by
im])risonment in the state prison for life, or any term of years.
Sect. 33. Whoever assaults another with intent to commit liurglary,
robliery, rape, manslaughter, mayhem, or any felony, the punishment of
which assault is not herein before prescribetl, shall be punislieil by im-
prisonment in the state prison not exceeding ten years, or liy fine not
exceeding one thousand dollars and imprisonment in the jail not exceed-
ing three years.
Sect. 34. If the life of any person, being a passenger, is lost by reason
of the negligence or carelessness of the projjrietor or proprietors of any
steamboat, stage coach, or of common carriers of passengers, or by the
unfitness or gross negligence or carelessness of their servants or agents,
such proprietor or proprietors, and common carriers, shall be punished
by fine not exceeding five thousand, nor le.'is than five hundred, dollars,
to be recovered by indictment, and paid to the executor or adminis-
trator, for the use of the widow and children of the deceased in equ.al
moieties; but if there are no children, to the use of the widow, and if
no widow, to the use of the next of kin.
Sect. 35. Whoever, having management or control of or over any
steamboat or other public conveyance used for the common carriage of
jiersons, is guilty of gross carelessness or neglect in, or in relation to,
the conduct, man.agement, or control, of such steamboat or other public
conveyance, while being so used for the common carriage of persons,
shall be punished by fine not exceeding five thousand dollars, or by
imprisonment in the jail not exceeding three years.
Sect. 36. If a driver of a stage coach or other vehicle, for the con-
veyance of passengers for hire, when a passenger is within or upon such
coach or vehicle, leases the horses thereof without some suitable j)erson
to take the charge and guidance of them, or without fiistening them in .a
safe and prudent manner, he may be punished by imprisonment in the
jail not exceeding two months, or by fine not exceeding fifty dollars.
Chap. 161.]
OFFENCES AGAINST PROPERTY.
795
CHAPTER 161.
OF OFFENCES AGAINST PROPERTY.
Section
1. r.urmng- dwelling-house, &c.
'Z. Burning in night meetiug-housc, &c., of
value of SIOOO; barn, &o., within curtilage,
&c.
3. same in daytime.
4. buildings of less value than $1000, &c., or
bridge, ship, &c.
5. wood, fences, corn, grain, trees, soil, &c.
G. Wile liable for buruiug property of hua-
band.
7. Burning property insured to iiyure the
insurers.
8. Cutting, &c., bell rope, engine, &c., within
twenty-four hours of lire.
9. same at time of lire, or preventing alarm
or extinguishing of fire.
10. Burglary, being armed, or making an as-
sault.
11. not being armed, &c.
12. Breaking in night building or ship, 'with
intent, &C.
13. Entering in night without breaking, or
breaking and entering in daytime, &c.
14. Entering dwelling-houee in night, or break-
ing, &c., without putting in fear.
15. Stealing in a building, ship, &c.
If), in a building on fire, or at a fire.
17. Larceny from the person.
IS. Larceny of property exceeding in value
SKK). Not exceeding SIOO.
19. Larceny, or destruction, &c., of will, &c.
20. Allegation of value, &e., not required.
21. Stealing property of value of $5.
22. Second conviction, or conviction at same
term of three larcenies.
23. Larceny of paper designed for bank bills,
&c., with intent to pass, &c.
24. Priutors, &c., retaining such paper, &c.,
with intent to pass, &c.
25. I^arceny of things annexed to the realty.
2G. Accessory to such larceny.
27. Jurisdiction in cases of such larceny.
2S. Such larceny may be from one or more
tenants. Of property of person deceased.
From person unknoim.
29. by whom it cannot be committed.
30. Larceny of beasts and birds.
31. ( >fficer making arrest for robbery or lar-
ceny to secure, &c., goods stolen.
32. Allowance to prosecutor and officer, on con-
viction.
33. when prisoners forfeit recognizances, or
escape.
34. JIaking, holding, using, &c., burglarious
instruments.
35. Embezzlement of property the subject of
larceny.
.30. by persons in state treasury.
37. by town, city, or county officers.
38. by agents, clerks, &c.
39. by officers, &c., of banks.
40. Taking by accomplice deemed taking by
officers, &c.
41. Embezzlement, &c., by carriers and others.
42. Indictment and evidence. What will not
be a variance.
43. Buying, receiving, &c., stolen goods.
44. Effect of restitution of stolen property
bought, &c.
45. Receiver of stolen goods tried before thief
is convicted.
Sectiox
4G. Buying, &c., of embezzled goods, Ac.
47. Second conviction and several offences.
Common receiver.
48. Unlawful taking of animals, &c., but not
with intent to steal, &c.
49. Issuing, &c., certificates of stock, bonds,
&c., beyond amount authorized.
50. Fraudulently issuing or transferring cer-
tificates of stock, &:c.
51. Making false entries, &c., in books of a cor-
poration.
52. Books of corporation evidence.
53. Falsely personating auother, &c.
54. Obtaining property by false pretences or
tokens.
55. Forging, &c., private labels, trade marks,
&c.
56. Selling wares having forged stamps, &c.
57. Obtaining property by tricks at cards, &c.
5S. Gross frauds, Ac, at common law.
59. Conveying land encumbered, ■without no-
tice of the encumbrance.
CO. Selling land attached, without notice.
61. Concealing mortgaged personal property,
&c.
C2. Mortgagor selling without consent of mort-
gagee.
63. Hirer, &c., of personal property, selling
without consent.
64. Sale, &c., of collateral security before debt
due, &c.
65. Consignee, &c., fraudulently depositing or
pledging property, &c.
66. Maliciously destroying, &c., monuments,
milestones, guideboards ; extinguishing
lamps, &.C.
67. Wilful injury,&c., to school-house, church,
&c., or the furniture, &c., and appurte-
nances thereof.
G8. to house, Ac, by exploding gunpowder,
Ac.
69. Throwing explosive substances into dwell-
ings, &c.
70. oil of vitriol, coal tar, &c.
71. Raising water so as to injure mill. Proviso.
72. Malicious injury to dams, reservoirs, ca-
nals, Ac.
73. Wilful injury, Ac., to ice where taken as
merchandise.
74. to bridges, turnpike gates, Ac.
75. Passing, Ac, toll-bridges, without paying.
76. Wilfully destroying vessels to defraud the
owner or insurer.
77. Fitting out vessels with intent to destroy
them, Ac.
78. Making false invoices, Ac, of cargo, to de-
fraud insurer.
79. Making or procuring false protest, Ac.
80. Malicious killing, maiming, or poisoning,
CJittle.
81. Wilful trespasses by cutting timber, wood,
grain, Ac.
82. Destroying fruit and ornamental trees, Ac,
injuring houses, fences, Ac.
83. Destroying trees, Ac, or stealing, Ac, in
gardens, Ac.
84. Svilful trespasses by entering gardens, or-
chards, Ac, with intent, Ac. How, when
done on the Lord's day, or secretly.
85. Other malicious injuries to personal prop-
perty.
796
OFFENCES AGAINST PROPERTY.
[Chap. 161.
Section
86. Persons wilfully injuring trees or commit-
tingf raiscliief on Lord's day may be arrest-
ed, &c., and detained without warrant, not
over twenty -four hours.
8/. lulling pigeons on, or frightening from,
beds.
88. Injury, or removal, &e., of property of Hu-
mane Society.
Section
89. Setting Are to coal-pits, on woodlimd in
New Bedford, &c., between March and
October.
W. Burning brushwood, &c., on such wood-
land.
91. Penalties for such burning, how recovered,
and to whose use.
Burning dwell-
ini,^ house, &e.
R.^S. 1J(),§§1,2.
ISJi, 259, I 3.
.3 Cush. 52.5.
10 Cush. 478.
See Ch. 170, § 54.
Burning in
liiulit, nu'eting-
h.iiis.., &,-., of
vahu' of SKiDil;
b.arn, &c., with-
in curtilage, Arc.
E. S. 120, § 3.
10 Cush. 480.
p.amo in day-
time.
E. S. 126, §4.
buildings of
less value tliau
SIOOO, &c., or
bridge, ship,
&c.
E. S. 126, § 5.
1 Met. 25S.
1 Gray, 495.
wood, fences,
corn, grain,
trees, soil, &c.
E. S. 126, § 0.
Wife liable for
burning proper-
ty uf husband.
E. S. 126, § 7.
Burning prop-
erty insured, to
iiyure the insur-
ers.
E. S. 128, § 8.
Cutting, &c.,
bell rope, en-
gine, &c., with-
in twenty-four
hours offire.
1855, 446, § 1.
same, at time
of til-.', or pre-
ve itiug alarm
or e.Ytmguish-
iug fire.
1855, 440, § 2.
Sectiox 1. Whoever wilfully and maliciously bums the dwelling-
house of another, or any building adjoining such dwelling-house, or
wilfully and maliciously sets lire to any building by the burning whereof
such dwelling-house is burnt, shall be punished by imprisonment in the
state prison tor life.
Sect. 2. Whoever wilfully and maliciously burns in the night time
a meeting-house, church, court liouse, town house, college, academy,
jail, or other building erected for public use, or a banking-house, ware-
house, store, manufactory, or mill, of another, (being, with the projjerty
therein contained, of the value of one thousand dollars,) or a barn,
stable, shop, or office, of another, within the curtilage of a dwelling-
house, or any other building, by the burning whereof any building men-
tioned in tliis section is burnt in the night time, shall be punished by
imprisonment in the state prison for life.
Sect. 3. Whoever wilfully and maliciously burns in the daytime
any building mentioned in the preceding section, the jiunishinent for
which if burnt in the night time would be imprisonment in the state
prison for life, shall be punished by imprisonment in the state prison not
exceeding ten years.
Sect. 4. Whoever wilfully and maliciously burns a banking-house,
warehouse, store, nianufiictoiy, mill, liarn, stable, shop, office, outhouse,
or otlier building wliatsoever, of another, other than is menti(5ned in
section two, or a bridge, lock, dam, or flume, or a shiji or vessel, of an-
othei', shall be punished by imprisonment in the st.ate prison not exceed-
ing ten ycai's.
Sect. 5. Whoever wilfully and maliciously burns or otherwise de-
stroys, or injnres, a ]jile or parcel of wood, boards, timber, or other lum-
ber, or any fence, bars, or gate, or a stack of grain, hay, or other vege-
table product, or any vegetable product severed from the soil and not
stacked, or any standing trees, grain, grass, or other standing product of
the soil, or the soil itselij of another, shall be punished by imprisonment
in the state prison not exceeding five years, or by fine not exceeding five
hundred dollars and iinjirisonment in the jail not exceeding one year.
Sect. 6. The preceding sections severally extend to a married
woman who commits either of the oftences therein described, though the
pro})erty burnt or set fire to belongs partly or wholly to her husband.
Sect. 7. Whoever wilfully burns a building or any goods, wares,
merchandise, or other chattels, which are at the time insured against
loss or damage by fire, with intent to injure the insurer, whether such
person is the owner of the property burnt or not, shall be punished by
imjirisonment in the state prison not exceeding twenty years.
Sect. 8. Whoever, within t\^'enty-four hours prior to the burning
of a building or other projierty, wilfully and maliciously cuts or removes
any bell rope in the vicinity of such building or property, or cuts, in-
jures, or destroys, any engine, or Jiose, or other apjiaratus belonging to
an engine, in said vicinity, shall be deemed guilty of the burning as
accessory before the fact, and be punished accordingly.
Sect. 9. Whoever, during the burning of a building or other prop-
erty, wilfully and maliciously cuts or removes any bell rope in the
vicinity of such building or property, or otherwise prevents an alarm'
being given; or cuts, injures, or destroys, an engine, or hose, or other
Chap. IGl.] offences against property. 797
appar.atus belonging to any engine, in sriicl vicinity, or otherwise wilfully
and maliciously prevents or obstructs the extinguishing of any fire;
shall be ileemed guilty of the burning as accessory after the fact, and
be punished by imprisonment in the state prison not exceeding seven
years, or in the jail not exceeding three years, or bj' fine not exceeding
one thousand dollars.
Sect. 10. Whoever breaks and enters a dwelling-honse in the night Burginry, being
time, with intent to commit the crime of murder, rape, robliery, larceny, """lu'aTsauit!
or otlicr felonv, or after havinsr entered with such intent, breaks such k. 8.120, §9.
*'. ." • . 1830 I'*?
dwelling-house in the night time, any person being then lawfully there- 4 jict.'sss.
in, an<l the oftender being armed with a dangerous weapon at the time cMet. 508.
of such breaking or entry, or so arming himself in such house, or mak-
ing an actual assault on any person being lawfully therein, shall lie pun-
ished by imprisonment in the state prison tor life.
Sect. 11. Whoever breaks and enters a dwelling-house in the night not being
time with such intent; or having entered with such intent, breaks such «"§ '']2?''§ 10.
dwelling-house in the night time, (the offender not being armed, nor ■{ Met. 357.
arming himself in such house with a dangei'ous wea])on, nor making an
assault upon any person then being lawfull}' therein,) shall be punished
by im]irisonment in the state jirison not exceeding twenty years.
Sect. 12. Whoever breaks and enters in the night time, a building. Breaking in
ship, or vessel, witli intent to commit the crime of murder, ra])e, rob- ov°e'i'iii'™vitii°^'
bery, larceny, or any other felony, shall be punished by imprisonment intent, &c.
in the state prison not exceeding twenty years. is3i,'ioG','§ 1. '
.1 Met"310. C. Jlet. MS. 13 Jtct. 2i0. fi Cush. 181. 20 Pick. 303.
Sect. 1.3. Whoever enters in the night time without breaking, or Entering in
breaks and enters in the day time, a building, ship, or vessel, with intent bn'akiiJg'ur"'
to commit the crime of murder, rape, robbery, larceny, or any other !>i™k;»!?'' *<'_^'
felon}-, the owner or any other person lawfully therein being put in k. ,s?iao™§i2.
fear, shall be punished by imprisonment in the state prison not exceed- iwi, loo, §2.
ing ten years.
Sect. 14. Whoever enters a dwelling-house in the night time, with- Entering dwcU-
out breaking, or breaks and enters in the day time any building, ship, ni?'ili°or'"break-
or vessel, with intent to commit the crime of murder, rape, robbery, ing, &e., witli
larceny, or any other felony, (no person lawfully therein being put in fca'r.'"' '°^''°
fear,) shall be punished by imprisonment in the state prison not exceed- fvf'j,?,-''!^'
ing five years, or by fine not exceeding five hundred dollars, and impris-
onment in the jail not exceeding two years.
Sect. 1.5. Whoever steals in a building, ship, or vessel, shall be pun- steaiingin
ished by imprisonment in the state jirison not exceeding five years, or 4"''''"'°' *'"P'
by fine not exceeding five hundred dollars, or by imprisonment in the u. s. 12c, §h.
jail not exceeding two years. i^sil lai;, §4.
o"cusli. 1S3. 3 Gray, 450. See Cll. 110,§ 14. Cll. 120, §44. 2 Cusll. 683.
Sect. 16. Whoever steals in a Imilding that is on fire, or steals any at a fire,
property removed in consequence of an alarm caused by fire, shall be fee^(;-/,''i'ifi,'|i4.
punished by imprisonment in the state prison not exceeding five years, cu. 120, § 41.
or by fine not exceeding five hundred dollars and imprisonment in the
jail not exceeding two years.
Sect. 17. Whoever commits larcenv by stealing from the iierson of Lnrceny from
. . .' ^ . ~ . ^ the person.
another shall be punished by imprisonment in the state prison not e.x- h. s. 12c., §10.
ceeding five years, or in the jail not exceeding two years. Ch^.S/s'-iif ^*'
Sect. 18. Whoever commits larceny, by stealing, of the prpperty of of property
another, any money, goods, or chattels, or any bank note, bond, promis- |'^".'[',„jl'° ®"*
sory note, bill of exchange, or other bill, order, or certificate, or any k. .s. 120, § ir.
book of accounts for- or concerning money or goods due, or to become -J^jirt^w^^^'^'
due, or to be delivered, or any deed or writing containing a conveyance '■> Met. 273.
of land or any other valuable contract in force, or any receipt, release, li^ ch! uo!'§ 14.
or defeasance, or any ^viit, process, or public record, if the property ch. 120, §41.
stolen exceeds the value of one hundred dollars, shall be punished by
67*
798
OFFENCES AGAINST PROPERTY.
[Chap. 161.
Larceny of
property not
exceeding $100
in value.
Larceny, do-
strui'tion, Scc,^
of wills, &c.
Alleviation of
value not re-
quired.
See Ch. 92, § 17
Larceny of
property of
value of S5.
E. S. 143, §§5,6.
1837, 217.
1851, .341).
Second convic-
tion, or convic-
tion at same
term of three
larcenies.
K. S 12fi, § 19.
22 I'ick. 1.
3 Met. 45S.
4 Mot. .361, 3M.
11 Met. 575, 581.
12 Met. 24G.
Larceny of pa-
per (lesii^^ued for
bank bills, Arc,
with intent to
pass, ttc.
1858, or, § 1.
Printers, &c.,
retaining sucli
paper, &c., with
intent to pass,
&c.
iai-i, 67, § 2.
Larceny of
thinj^s annexed
to the realty.
iS51, 151, §1.
Accessory to
sucli larceny.
1851, 151, §2.
imprisonment in tlie state prison not exceeding five year.s, or by fine
not exceeding six hundred dollars and imprisonment in the jail not
exceeding two years ; or if the property stolen does not exceed the
value of one hundred dollars, shall be punished by imprisonment in
the state prison or jail not exceeding one year, or by fine not exceeding
three hundred dollai-s.
Sect. 19. Whoever steals, or for any fraudulent purjiose, destroys or
conceals any will, codicil, or other testamentary instrument, shall, upon
conviction thereof^ be punished by imprisonment in the house of coiTec-
tion not exceeding two years, or in the state prison not exceeding five
year.s.
Sect. 20. In an indictment for an offence under the preceding sec-
tion, no allegation of value or ownersbi]5 need be made ; and in the
trial of such an indictment, no disclosure made by any person under
section seventeen of chapter ninety-two shall be used in evidence
against him.
Sect. 21. Whoever, upon a complaint before a justice of the peace
or police court, is convicted of stealing money or goods, not exceeding
the value of five dollars, may be committed to the house of correction
or to the house of industry or workhouse within the city or town where
the ottence was committed, for a term not exceeding six months ; or he
may instead thereof be sentenced to ]iay a fine not exceeding twenty
dollar.s, either with or without a condition, that if the same with the
costs of prosecution is not paid within a time specified, he shall be so
committed for a term designated in the sentence.
Sect. 22. Whoever, having been convicted, upon indictment, cither
of the crime of larceny or of being accessory to the crime of larceny
before the fact, afterwards commits the crime of larceny, or is acces-
sory thereto before the foot, and is convicted thereof upon indictment ;
and whoever is convicted at the same terra of the court, either as ]irin-
cipal or accessory beibre the fact, of three distinct larcenies ; shall be
deemed a common and notorious thief, and be punished by im]irison-
ment in the state prison not exceeding twenty years, or in the jail not
exceeding three years.
Sect. 23. Whoever commits the crime of larceny by stealing any
jirinted jjiece of paper or blank designed for issue by any incorporated
bank or banking company in the United States, as a bank bill, certifi-
cate, or promissory note, or printed by means of anj' engraved plate
designed tor printing such pieces of pajier or blanks, with intent either
to utter or pass the same, or to cause or allow the same to be uttered or
passed as true, either with or without alteration or addition, and thereby
to injui-e or defraud any jierson, shall be punished by imprisonment ia
the state prison for life, or any tenii of years.
Sect. 24. Whoever, having been employed to print, or having
assisted in printing, any such printed piece of paper or blank, or having
been intru.sted with the care or custody thereotj retains the same in his
possession without the knowledge and consent of the corporation for
which the same was printed, with the intent either to utter or pass it,
or to cause or allow it to be uttered or passed, as true, cither with or
without alteration or addition, and thereby to injure or defraud any
)K'rson, shall be punished by imprisonment in the state prison for life, or
any term, of years.
Sect. 2.5. Whoever by a trespass, with intent to steal, takes and
carries away any tiling which is parcel of the realty or annexed thereto,
the property of another of some value, against his will, shall be guilty
of such simjile or .aggravated larceny as he would be guilty of if such
property were personal projjerty.
Sect. 26. Any person may become an accessory to such larceny
before or after the fact, or a receiver of the property stolen, in like man-
Chap. 161.] offences against property. 799
ner .is if the property stolen were personal, and shall be punished
accordingly.
Sect. 27. The same courts and justices shall have jurisdiction of Jurisdiction,
offences under the preceding section, as would have jurisdiction if the .sre'cii* hm m.
property stolen were personal property. Ch. 126, §4i.
Sect. 28. The stealing of such real property may be a larceny from Sucii larceny
one or more tenants, sole, joint, or in common, in fee, for life, or years, "fi'or't^or"
at will or sufferance, mortgagors or mortg.igees, in possession of the tenants.
same, or who may have an action of tort against the offender for trespass issaj 312!
upon the jjroperty, but not from one having only the use or custody
thereof The larceny may be from a wife in possession, where she is
authorized by law to hold such jiroperty as if sole, otherwise her occu-
pation may be the possession of the husband. Where such property of property of
which was of a person deceased is stolen, it may be a larceny froni any P|''*™ deceas-
one or more heirs, devisees, reversioners, remainder-men, or others,
having a right upon such decease to take possession but not having
entered as it would be after entry. The larceny may be from a person from person,
unknown, when it would be such if the property stolen were personal, "lokn""'"-
Sect. 29. Such larceny cannot be committed by one against whom by whom it
no action of tort could be maintained for acts like those constituting ^"J{^°J ^ '""^'
the larceny, but maybe committed by those having only the use or is5i,i,ii, §5.
custody. ''^''^*--
Sect. 30. Whoever, without the consent of the owner and with a Larceny of
felonious intent, takes any beast or bird ordinarily kept in a st.ate of con- jj^^jg' ™''
finetnent and not the subject of larceny at common law, shall be deemed isso, '303.
guilty of Larceny.
Sect. 31. The officer who arrests a person charged as principal or officer making
accessory in any robbery or larceny, shall secure the jjropeity alleged to ic"; "oods"""^"'
be stolen, aunex a schedule thereof to his return, and be answerable for J'"';"-.^
the same; and upon conviction of the offender, the stolen property shall 21' rick. 150.*"
be restored to the owner.
Sect. 32. Upon a conviction of burglary, robbery, or larceny, the Allowance to
court may order a meet recompense to the jirosecutor, and also to the officer on°con-
officer who has secured and kept the stolen nropertv, not exceeding their victiou.
.. liS l'*G S '*6
actual expenses with a reasonable allowance for their time and trouble; ' ' ■""•
which shall be paid by the county treasurer, and charged by him to the
commonwealth.
Sect. 33. When a person arrested upon a charge of burglarj^, rob- when prison,
bery, or larceny, forfeits his recognizance, or escapes from the custody of oogntzance8%r
the law after being committed to jail for trial, the court before whom the ^^?p,'"-
case would have been tried shall have the same authority to order a
recompense and allowance to the prosecutor, and to the officer who has
secured and kept the property, as provided in the preceding section.
Sect. 34. Whoever makes or mends, or begins to make or mend, or Making, hold-
knowingly has in his possession, any engine, machine, tool, or implement, hjfr'giarimis "''
adapted and designed for cutting througli, ibrcing, or breaking open, any instruments,
building, room, vault, safe, or other depository, in order to steal there- '
from money or other property, or to commit any other crime, knowing
the same to be adapted and designed for the purpose aforesaid, with in-
tent to use or employ or allow the same to be used or employed for such
purjiose, shall be punished by imprisonment in the state prison not
exceeding ten years, or by fine not exceeding one thousand dollars and
imprisonment in the jail not exceeding three years.
Sect. 35. Whoever embezzles, or fraudulently converts to his own Embezzlement
use, or secretes with intent to embezzle or fraudulently convert to his subject oflar^^
own use, monej^, goods, or property, delivered to him, which may be the ceny.
subject of larceny, or any part thereof, shall be deemed guilty of simple ''^^""^•'•
larceny. . ,
Sect. 36. If a clerk, or other person employed in the treasury of this state treasury.
800
OFFENCES AGAINST PROPEKTY.
[Chap. 161.
R. S. 13, § 23.
K. S. 126, § 28.
Embezzlemeut
by town, city,
or county offi-
cers.
1853, 487.
by agents,
clerks, &c.
R. S. 120, § 29.
2 Met. 343.
11 Met. M.
1 Gray, 401.
by officers,
&c., of banks.
184«, in, § 1.
8 Mot. 247.
Takinn^ by ac-
complice deem-
ed taking by of
ficer, &c.
1846, 171, §3.
Embezzlement,
&c., by carriers
and otliers.
R. S. 12r,, § .30.
9 Jlet. 141, 142.
3 Gray, 4(il.
6 Gray, 15.
Indictment and
evidence.
What will not
be a variance.
R. S. 133, § 10.
1815, 215.
I84fi, 171, § 2.
8 Met. 247.
commonwealth, commits any fraud or embezzlement therein, he shall be
punished by fine not exceeding two thousand dollars, or by imprisonment
in the state prison for life, or such term of jears as the court shall order.
Sect. 37. If a town, city, or county officer, embezzles or fraudulently
converts to his own use, or fraudulently takes or secretes with intent so
to do, any effects or property belonging to or in possession of said town,
city, or county, he shall be deemed guilty of larceny, and be punished
by imjM'isonment in the state prison not exceeding ten years, or by fine
not exceeding one thousand dollars and imprisonment in the jail not ex-
ceeding two years.
Sect. 38. If an oflieer, agent, clerk, or servant, of any incorporated
company, or if a clerk, agent, or servant, of any private person, or co-
partnership, except apprentices and other persons under the age of six-
teen years, embezzles, or fraudulently converts to his own use, or takes,
or secretes, with intent so to do, without consent of his employer or
master, any property of another, which has come to his possession or is
undei'his care by virtue of such employment, he shall be deemed guilty
of sim]ile larceny.
Sect. 39. If an officer of an incorporated Ijank, or any person in the
employment of such bank, fraudulently con\erts to his own use, or
framlulently takes and secretes with intent so to do, any bullion, money,
note, bill, or other security for money, belonging to and in possession of
such bank, or belonging to any ]3erson and dejjosited therein, he shall,
whether intrusted with the custody thereof or not, be deemed guilty of
larceny in said bank, and be punLshed by imprisonment in the state
prison not exceeding ten j-ears, or by fine not exceeding one thousand
dollars and iin]jrisonment in the jail not exceeding two years.
Sect. 40. In prosecutions for such ofl:ences, the fraudulent t.aking or
receiving by any person or persons of any bullion, money, note, bill, or
other security for money, belonging to such bank, by reason of an unlaw-
ful confederacy or agreement of him or them with an officer of said
bank, or any person in the em])loyment thereof, with intent to defraud
the same, shall be deemed to be a fraudulent taking by such officer or
person in the employment of the bank, to his own use, within the mean-
ing of the preceding section ; and it shall not be necessary on the trial
to identify the jtarticular bullion, money, note, bill, or security for money,
so taken or received.
Sect. 41. If a carrier or other person to whom any property which
may be the subject of larceny has been delivered to be carried for hire,
or if any other person intrusted with such property, embezzles, or fraud-
ulently converts to his own use, or secretes with intent so to do, any such
property, either in the mass as the same was delivered, or otlierwise, and
before delivery thereof at the jilace at which, or to the person to whom,
it was to be delivered, he shall be deemed to be guilty of simple larceny.
Sect. 42. In prosecutions for the offi'uee of embezzling, fraudulently
converting to one's own use, or fraudulently taking and secreting with
intent so to embezzle or convert, the bullion, money, notes, bank notes,
checks, drafts, bills of exchange, obligations, or other securities for money,
of any person, bank, incor])orated company, or copartnership, by a
cashier, or other officer, clerk, agent, or servant, of such person, bank,
incorporated comjiany, or copartnership, it sliall be sufficient to allege
generally in the indictment an embezzlement, fraudulent conversion,
or taking with such intent, of money to a certain amount, without
specifying any particulars of such embezzlement; and on the trial
evidence may be given of any such embezzlement, fraudulent con-
version, or taking with such intent, committed within six months next
after the time stated in the indictment; and it shall be sufficient to
maintain the charge in the indictment, and shall not be deemed a vari-
ance, if it is jjroved, that any bullion, money, notes, bank note, check,
Chap. IijI.] offences against property. 801
dnift, bill of exchange, or other security for money, of such person,
bank, incoqjorated company, or copartnership, of whatever amount, was
fiau.lulently embezzled, converted, or taken with such intent, by such
cashier, or other officer, clerk, agent, or servant, within said period of six
months.
Sect. 4.3. Whoever buys, receives, or aids in the concealment of. Buying, recoiv-
stolen money, goods, or property, knowing the same to have been stolen, IIJfoiitT'' '*'"''^"
shall be punished by imprisonment in the state prison not exceeding five «. s. i2fi,§20.
years, or by fine not exceeding five hundred dollars and imprisonment 5 cusii. l'sV.
iu the iail not exeeedinsj two years. ^?'' 9l!,' y.",' ^ '*•
Sect. 44. Upon a first conviction under the preceding section, and Effect of rcsti-
when the act of stealing the property was a simple larceni,-, if the party tution of stolen
convicted of buying, receiving, or aiding in the concealing ot; such stolen boupit^&c.
property, makes satisfaction to tlie party injured, to the full value of the if- ''•i-'i'. §3i-
pro]ierty stolen and not restored, he shall not be imprisoned iu the state
prison.
Sect. 45. In prosecutions for the offence of buying, receiving, or Recdvcr of
aiding in the concealment ofj stolen property known to have been stolen, tried°bfibr/
it shall not be necessary to iiver, nor on the trial thereof to prove, that tWef is convict-
the person who stole the property has been convicted. E.'s. 126,§24.
Sect. 46. Whoever buys, receiA-es, or aids in the concealment of, any Buying, &c., of
embezzled property, knowinsj the same to have been embezzled, shall be <?™be2zied
. , T 1 -^ ■' -^ , . T /. goods, &c.
punished by imprisonment in the state prison not exceeding nve years, isas, isi, §1.
or by fine not exceeding five hundred dollare, or by imprisonment in
the jail not exceeding two ye.ars.
Sect. 47. Whoever is convicted of buying, receiving, or aiding in the Seeoad convic-
concealment of, stolen or embezzled property, knowing the same to have offinces.'"^^"'''
been stolen or embezzled, havinar been before convicted of the like oftence. Common re-
coivor
and whocvgr is convicted at the same term of the court of three or more isss, 184, § 2.
distinct acts of buying, receiving, or aiding in the concealment of, money,
goods, <h' property stolen or embezzled as aforesaid, shall be deeine<l and
adjudged to be a common receiver of stolen or embezzled goods, and
shall be punished by imprisonment in the state prison not exceeding ten
years.
Sect. 48. Whoever wilfully, mischievously, and without right, takes Unlawful tak-
er uses any boat or vehicle, or takes, diives, rides, or uses, any horse, ass, ™'^ "bvtmA^"'
mule, ox, or any draught animal, the property of another, without the withmtoutto
consent of the owner or other person having the legal custody, care, or issr,,^^ 1.
control, of the same, shall be punished by fine not exceeding three bun- See ch. 120, §43.
drod dollars, or by imprisonment in the house of correction for a term
not exceeding six months : jyrovidecl, that nothing in this section shall
be so construed as to apply to any case where the taking of the jjioperty
of another is with the intent to steal the same, or, when it is taken under
a claim of right, or with the presumed consent of the owner or other
person lia\dng the legal control, care, or custody, of the same.
Sect. 49. An officer, agent, clerk, or servant, of a corporation, or any lesumg, &c.,
other ])erson, who issues, or signs with intent to issue, any certificate of 6toc'k,*'boud8^
stock in a corporation, or who issues, signs, or indorses, with intent to ic, beyond
issue, any bond, note, bill, or other obligation or security, in the name tiiorized.
of such corporation, bevond the amount authorized by law, or limited lf?I;'J?^5i-
Till I. * I . • /,> 1^^> 11^*
by the legal votes ot such corporation or its ]u-o)ier oincers, or nego-
tiates, transfers, or disposes of, such certificate, with intent to defraud,
shall be ]>unished by imjuisonment in the state prison not exceeding ten
years, or in the house of correction not exceeding one year.
Se(3t. 50. An otficer, agent, clerk, or servant, of a corporation, or any Fraudulently
other person, who fraudulently issues or transfers a certificate of the Jrlii^s'ffrring
stock of a corporation, to any person not entitled thereto, or fraudii- certificates of
lently signs such certificate, iu blank or otherwise, with the int'^ ut that isso, 103^'^ 2.
it shall be so issued or transferred, by himself or any other person, shall
101
802
OFFENCES AGAINST PROPERTY.
[Chap. 161.
Making false
entries, &c., in
books of corpo-
ration.
Books of corpo-
ration evidence.
1S5», ia3, § 4.
Falsely person-
atin<r anotlier,
lie.
K. S. I2i;, § 31.
Obtaining prop-
erty by false
pretences or
tokens.
R. S. 12(i, § 33.
18d4, 12, § 1.
1 Jlass. 137.
0 3Iass. 72.
4 Pick. 177.
21 Pick. 515.
10 Met. 321.
12 Met. -HCi.
SeeCh.llC, §H.
Ch. laO.Hl-
ForpinLT, &e.,
private labels,
trade marks,
&c.
1850, 90, § 1.
Sellings wares
haviu;,' forged
stamps, &c.
1850, 90, § 2.
OMaininrr prop-
ertv liv tricks
at cunls, &c.
1M.J, l:U, § 1.
SeeCh. nc.,§H.
Ch. 120, § 41.
Gross frauds,
&c., at common
law.
E. S. 120, §33.
Conveying land
encumbered
without notice,
1855, 177, §2.
Selling land at-
be punished by imjuisonment in the state prison not exceeding ten
years, or in the lioiisc of correction not exceeding one year.
Sect. 51. An officer, agent, clerk, or servant, of a coi-jioration, who
makes a false entry in the books thereof^ with intent to defraud, and
any person wliose duty it is to make in such books a record or entry of
the transfer of stock, or of the issuing or cancelling of certificates there-
of; or of the amount of stock issued by such corporation, who omits to
make a true record or entry thereof, witli intent to defraud, shall be
punished by imprisonment in the state prison not exceedmg ten years,
or in the house of coiTOction not exceeding one year.
Sect. 52. On the trial of any person for an offence under the three
preceding sections, the books of any corporation to which such person
had access or the right of access, shall be admissible in evidence.
Sect. 53. Whoever falsely personates or represents another, and in
such assumed character receives any proijerty intended to be delivered
to the party so personated, with intent to convert the same to his own
use, shall be deemed to have committed simple larceny.
Sect. 54. Whoever designedly, by a false pretence, or by a privy or
false token, and with intent to defraud, obtains from another person
any property, or obtains, with such intent, the signature of any person
to a written instrument, the false making whereof would be punishable
as forgery, shall be punished by imprisonment in the state prison not
exceeding ten years, or by fine not exceeding five hundred dollars and
imprisonment in the jail not more than two years; but the pro\'isions
of this section shall not ajiply to any purchase of property by means of
a false pretence relating to the purchaser's means or .ability to pay, when
by the terms of tlie purchase, payment for the same is not to be made
upon or before the deli\'ery of tlie ])roperty purchased, unless such pre-
tence is made in writing, and signeil by the party to be charged.
Sect. 55. Whoever knowingly and wilfully forges or counterfeits,
or causes or procures to be foi-ged or counterfeited, upon an^ goods,
wares, or merchandise, the pri\ate labels, stamps, or trade marks, of any
mechanic or manufacturer, with intent to defraud the purchasers or
manuficturers of any goods, wares, or merchandise, whatever, shall be
punished by imprisonment not exceeding six months, or by fine not
exceeding five hundred dollars.
Sect. 56. W^hoever vends any goods, wares, or merchandise, h.aving
thereon a forged or counterfeited staraji, label, or trade mark, of any
mechanic or manufacturer, knowing the same to be forged or counter-
feited, without disclosing the fiict to the purchaser, shall be punished
by im]irisonment not exceeding six months, or by fine not exceeding
fifty <lollars.
Sect. 57. Whoever by the game of three-card monte, so called, or
any other game, device, sleight of hand, pretensions to fortune telling,
trick, or other means whatever, by the use of cards, or other inii)lemeiits
or instruments, fi-audulently obtains from another person pro])erty of any
description, shall be punished as in case of larceny of property of like
value.
Sect. 58. Whoever is convicted of any gross fraud or cheat at com-
mon law shall be punished by imprisonment in the state prison not
exceeding ten years, or in the jail not exceeding two years, or by fine
not exceeding four hundred dollars.
Sect. 59. Whoever conveys any real estate, knowing that any encum-
brance exists thereon, without, before the consideration is jiaid, informing
the grantee or gi'antees of the existence and nature of such an encum-
brance, so fixr as he has knowledge thereof, shall be punished by iin]iris-
onment in the jail not exceeding one year, or by fine not exceeding one
thousand dollars.
Sect. 60. Whoever, knowing that his land is attached on mesne
Chap. 1<31.] offences against property. 803
process, with intent to defraud sells and conveys it without giving notice tachcd without
of the attachment to the person to whom he sells and conveys it, shall R°'s.'^i2G, § 34
be punished by imprisonment in the state prison not exceeding three
years, or in the jail not exceeding one year.
Sect. 61. Whoever, with a fraudulent intent to place mortgaged per- concealing
sonal property beyond the control of the mortsraaee, removes or conceals, ™orts^K™
.-li.'..^ . ,. 11 ^ personal prop-
er aiils or abets m reniovmg or conceahng, the same, and any mortgagor 01 erty, Ac.
such projierty who assents to such removal or concealment, shall be pun- i^*'-*'-
ished by fine not exceeding one thousand dollars or by imprisonment in
the jail not exceeding one year.
Sect. G2. If a mortgagor of personal property sells or conveys the Mortfrag-or sell-
same or any part thereof, without tlie written consent of the mortgagee, eonseu'tof '
and without informing the person to whom lie sells or conveys, that the mortgagee,
same is mortgaged, he shall be punished byline not exceeding one liun- '
di'ed dollars, or by ini|)risonment in the jail not exceeding one year.
Sect. 63. If a hirer or lessee of personal property sells or conveys Hirer, &c., of
the same, or any part thereof, without tlie written consent of the owner [!r7v°''uiu''°'^
or lessor, and without informing the ])crson to whom tlie same is sold or without cou-
convej'ed, that it is so hired or leased, he shall be jiunished by fine not is5?,'i56.
exceeding one hundred dollars, or by imj^risonuient in the jail not
exceeding one year.
Sect. 64. Whoever, holding any collateral security deposited with Saic, &o.,ofcoi-
hiin for the payment of a debt which may be due him, sells, jiledges, b^ore' debt due
loans, or in any way disposes of, the same, before such debt becomes due &c.
and payable, and without the authoritj' of the party depositing the '*^*'^''-
same, shall be punished by fine not exceeding five hundred dollars, or
imprisonment in the state prison or jail not exceeding two years.
Sect. 65. If a consignee or factor deposits or pledges any merchan- Consignees,
disc, bill of lading, certificate, or order for the delivery of merehandise, t/'d/posMu^^oT
consigned or intrusted to him as security for money borrowed, or ii'iedginjj prop-
negotiable instrument received by him, and disjioses of or a])])lies the i&ia,' 216, § 0.
same to his own use in violation of good laith aiicl with intent to defraud
tlie owner thereof; or with the like fraudulent intent, a]:)plics or disposes
of any money or negotiable instrument raised or acquired by the sale or
other disposition of such merchandise, bill of lading, certificate, or order,
to his own use ; he shall be punished by fine not exceeding five thousand
dollars and im])risonnient not exceeding five years.
Sect. 66. Whoever wilfully and maliciously breaks down, injures, Maliciously de-
removes, or destroys, any monument erected for the purjiose of ilesig- ,nJ^numen*°''
nating the boundaries of a city or town, or of a tract or lot of land, or mile-stones,'
any tree marked for that purpose, or so breaks down, injures, removes, cxtfngui'shhfg
or destroys, any mile stone, mile bo.ird, or guide board, erected upon a ',f"J'^.',,*s'
highway or other jiublic way, turnpike, or railroad, or wilfully or mali- it! s! 120, §43.
ciously defaces or alters the inscription on any such stone or board, or
wilfully or maliciously mars or defaces any building, or sign board, or
extinguishes any lamp, or breaks, destroys, or removes, any lamp, or lamp
post, or railing, or posts, erected on any bridge, sidewalk, street, high-
way, court, or passage, shall be punished by imprisonment in the jail
not exceeding six months, or by fine not exceeding fifty dollars.
Sect. 67. Whoever wilfully and maliciously, or w.antonly and with- wiimi injury,
out cause, destroys, defaces, mars, or injures, any school-house, church, bouse' church
or other building erected or used for the purjioses of education or &c., oi- furni- '
religious instruction, or for the general diffusion of knowledge ; or any appurtenances
of the out-buildings, fences, wells, or appurtenances, of such school-house, t'ifT™':
church, or other building; or any furniture, apparatus, or other property, ''"' '
belonging to, or connected with, such school-house, church, or other
building ; shall be jiunished by fine not exceeding five hundred dollars,
or by imprisonment in the jail not exceeding one year.
Sect. 68. Whoever wilfully and maliciously, by the exjjlosion of to house, &c.,
804
OFFENCES AGAINST PROPERTY.
[Chap. IGl.
by exploding
gunpowder, &c.
1S51, lUU, § 1.
Throwing ex-
plosive sub-
stances into
dwellings, &e.
IS51, 13'J, §;;.
oil of vitriol,
coal tar, &c.
1851, 12U, §3.
Raising water
80 as to Injure
mill. Proviso.
ISiU, US.
Malicious inju-
ry to dams,
reservoirs, ca-
nals, &c.
R. S. VX, § 40.
1857, 100.
Wilful injury,
&c.,to ioc taken
as merchandise.
1850, Hi.
to bridges,
turnpilce gates,
&c.
U.S. 120, §«.
Passing, &c.,
toll-bridges,
without paying.
ISW, 00.
Wilfully de-
gunpowder or any other explosive substance, unlawfully destroys or
injures any dwelling-house, office, shop, or other building, or any shiji or
vessel, shall be punished by ini]:irisoninent in the state prison not exceed-
ing twenty years, or in the jail not exceeding five years, or by fine not
exceeding one thousand dollars.
Sect. 69. Whoever wilfully and maliciously throws into, against, or
upon, or puts, places, or explodes, or causes to be exploded, in, upon, or
near, any dwelling-house, office, shop, building, or vessel, any gunpc)wder
or other explosive substance, or any bomb-shell, torpedo, or other instru-
ment, filled, or loaded with any explosive substance, with intent unlaw-
fully to destroy or injure such dwelling-house, office, shoj), building, or
vessel, or any person or property therein, shall be jninished bj- imju'isoii-
ment in the state prison not exceeding ten years, or in the jail not
exceeding five years, or by fine not exceeding five hundred dollars.
Sect. 70. Whoever wilfully and maliciously throws into, against, or
upon, any dwelling-house, office, shop, or other building, or vessel, or
puts or jilaces therein or thereon any oil of vitriol, coal-tar, or other
noxious or filthy substance, with intent unlawfully to injure, deface, or
defile, such dwelling-house, office, shop, building, or vessel, or anj' prop-
erty therein, shall be punished by imprisonment in the state prison not
exceeding five years, or in the jail not exceeding three years, or by fine
not exceeding three hundred dollars.
Sect. 71. Whoever by erecting or maintaining a dam, cither within
or without the limits of this state, knowingly causes the water of a
river or stream to be raised so as to flow ujion or injure a mill lawfully
existing in this state, and belonging to any citizen or citizens thereof,
without right as against the owner or owners of such mill, shall lie jnin-
ished by fine not exceeding one thousand dollars, or bj' im])risoninent
not exceeding six months; but this section shall not apjily to cases
where the courts of this state have jurisdiction to abate a dam so raised
or maintained.
Sect. 72. Whoever wilfully and maliciously breaks down, injures,
removes, or destroys, any dam, reservoir, canal, or trench, or any gate,
flume, flash boards, or other appurtenances thereof, or any of the wheels,
mill gear, or machinery, of a water-mill, or wilfully or wantonly, with-
out color of right, draws oflT the water contained in a mill ]iond, reser-
voir, canal, or trench, or wilfully and maliciouslj-, without color of right,
obstructs the water of a mill ]iond, reservoir, canal, or trench, from flow-
ing out of the same, shall be punished by imjirisonment in the state
prison not exceeding five years, or by fine not exceeding five hundred
dollars, and imprisonment in the jail not exceeding two years.
Sect. 73. Whoever wilfully, maliciously, and without right or li-
cense, cuts, injures, mar.s, or otherwise damages or destroys, any ice,
upon any waters within this state, from which ice is or may be taken as
an article of merchandise, whereby the taking thereof is hincleieil, or
the value thereof diminished for that purpose, shall be punished by fine
not exceeding one hundred dollars.
Sect. 74. Whoever wilfully and maliciously breaks down, injures,
removes, or destroys, any public or toll bridge, or turnpike gate, or any
lock, culvert, or embankment, of a canal, or wilfully and maliciously
makes any aperture or breach in such embankment, with intent to
destroy or injure the same, shall be punished by imjirisonment in the
state prison not exceeding five years, or by fine not exceeding five hun-
dred dollars and imjirisonment in the jail not exceeding two years.
Sect. 75. Whoever, not exemjit from jiayiiig toll, jiasses, or attemjrts
to pass, any toll-bridge lawfully established, without first jiaying the
leg:d toll, and with intent to avoid paying the same, shall be liable to a
fine not exceeding fifty dollars.
Sect. 76. Whoever wilfully casts away, burns, sinks, or otherwise
Chap. 161.] offences against propertt. 805
destroys, a ship or vessel, with intent to injure or defraud any owner of stroyin? vos-
such ship or vessel, or the owner of any property laden on board the owu'r or in™''
same, or an insurer of such shi]), vessel, or ])ro)jerty, or of any part siirer.
tlieroof, shall be jnmished by imprisonment in the state prison for life or " • ' ■ ' •
any term of years.
Sect. 77. Whoever lades, equips, or tits out, or assists in lading, rittino; out ves-
equipping, or fitting out, a shiji or vessel, with intent that the same to'dustroy'"'"""'
shall be wilfully cast away, burnt, sunk, or otherwise destroyed, to in- tiiem, &c.
jure or defraud an owner or insurer of such ship or vessel, or of any prop- ' ' ~ ' ^ •
erty laden on board the same, shall be punished by imprisonment in
the state prison not exceeding twenty years, or tine not exceeding
five thousand dollars and imprisonment in the jail not exceeding three
years.
Sect. 78. If the owner of a sliip or vessel, or of ]iroperty laden or Making false in-
pretended to be laden on board the same, or if anj' other person con- e°rf°i't*d<;-"'^
cerned in the lading or fitting out of a ship or vessel, makes out or fraud iusurer,
exhibits, or causes to be made out or exhibited, a false or fraudulent r?'s. 12C, §37.
invoice, bill of lading, bill of parcels, or other false estimates, of any
goods or property laden, or pretended to be laden, on V)oard such ship
or vessel, with intent to injure or defraud an insurer of such ship, ves-
sel, or property, or of any part thereof, he shall be punished by imprison-
ment in the state prison not exceeding ten years, or by fine not exceed-
ing five thousand dollars and imprisonment in the jail not exceeding
two years/
Sect. 79. If a master, other officer, or mariner, of a ship or vessel. Making or pro-
makes, or causes to be made, or swears to, any false affiilavit or protest, prouft' a".}'
or if an owner or other person concerned in such ship or vessel, or in K. S. 12c, §38.
the goods or property laden on board the same, procures any such false
affidavit or protest to be made, or exhibits the same, with intent to
injure, deceive, or defraud an insurer of such ship or vessel, or of any
goods or property laden on board the same, he shall be punished by
imprisonment in the state prison not exceeding ten years, or by fine not
exceeding five thousand dollars and imprisonment in the jail not exceed-
ing two years.
Sect. 80. Whoever wilfully and maliciously kills, maims, or dis- Malicious km-
figures, any horses, cattle, or other beasts, of another person, or wilfully OT°J,Slliu°^'
and maliciously administers poison to any such beasts, or cxj^oses any '^J''*!'?-^
poisonous substance, with intent that the same shall be taken or swal- I'Ma'sslsa.
lowed by them, shall be ininislied by imiirisonment in the state prison ~?,'''*,-l-
T .. 1 /. T 1 1 1 11 3 Cusii. 559.
not exceoflmg five j'ears, or by fine not exceeding one thousand dollars
and imprisonment in the jail not exceeding one year.
Sei:t. 81. Whoever wilfully commits a trespass, by cutting down or wiifui trespass-
destroying any timber or wood, standing or growing on the land of an- timifor'wS
other, or by carrying away any kind of timber or wood, cut down or gram,&c.
lying on such land, or by digging up or carrying away any stone, ore, a^c^ 4'^' ^ "
gra\'el, clay, sand, turf, or mould, from such land, or any roots, fruit, or
plant, there being, or by cutting dow'n or carrying away any sedge,
grass, hay, or any kind of corn, standing, growing, or licing, on such
land, or by carrying a^yay from any wharf or landing place any goods
whatever in which he has no interest or property, Avithout the license of
the owner thereof, shall be punished l)y imprisonment in the jail not
exceeding sixty days, or by fine not exceeding fifty dollars.
Sect. 82. Whoever wilfully and maliciously, or wantonly and with- Destroying
out cause, cuts down or destroys, or by girdling, lo])ping, or otherwise, m"ut™fre™*
injures any fruit or other tree, not his own, standing or gi'owing for &c., injuring
shade, ornament, or other useful jjurjiose, or maliciously or wantonly f^"^"^' ™'^''''
breaks any glass, in a building not his own, or maliciously breaks down, ?'• S- i2f>,§«.
injures, mars, or defiices, any fence belonging to or enclosing lands not scccii. i'2oi§'-i2.
his own, or maliciously throws down or opens any gate, bars, or fence,
6S
806 OFFENCES AGAINST PROPERTY. [ChAP. 161.
and leaves the same clown or open, or maliciously and Injuriously severs
from the freeliold of another any produce thereof, or anything attached
thereto, shall be punished l)y impi-isoniueut in the jail not exceeding one
year, or by tine not exceeding one hundred dollars.
Destroying Sect. 83. Whoever TvilfnOy and maliciously enters any orchard,
stealing! &c!! in nursery, garden, or cranberry meadow, and takes away, mutilates, or
gardens, &c. destroys, any tree, shrub, or vine, or steals, takes, and carries away, any
e'^ray,' :m9.' fmit or flower, without the consent of the owner thereof, shall be pun-
Seecu.i20,5«. isJied by tine not exceeding one hundred dollars, or by imprisonment in
the house of correction not exceeding three months.
Wilful trespass- Sect. 84. Whoever wilfully commits a trespass, by entering upon the
gar<feas,'or-"° garden, orchard, or other imijroved land, of another, without permission
chards, &c., of the owuer, and with intent to cut, take, carry away, destroy, or
with intcut. . . ii » • 1 J? -i ^11,,"^ . ."
Uow, whoa mjure, the trees, gram, grass, hay, truit, or vegetables, there grownig or
L'ord'8'day''or '^•^''"oi shall be punished by inij)risonment in the jail not exceeding thirty
secretly. days, or by tine not exceeding twenty dollars ; and if any of the otfences
R. S. 128, §45. jiientioned in this or section eighty-one are committed on the Lord's
day, or in disguise, or secretly in the night time, the imprisonment shall
not be less than five days, nor the fine, less than five dollars.
Other malicious Sect. 85. Whoever wilfully and maliciously destroys or injures the
B^narpropcrty. pei'sonal property of another in an)' manner or by any means not jiartic-
R. s. lao, §39. ularly described or mentioned in this chapter, shall be punished by im-
c*Gray','l«. jirisonment in the state prison not exceeding five years, or by fine not
See ch. 12U, § -42. exceeding one thousand dollars and imprisonment in the jail not ex-
ceeding one year: ^vovided, that when the value of the property so
destroyed or injured is not alleged to exceed the sum of fifteen dollars,
the punishment shall be by fine not exceeding fifteen dollars, or imprison-
ment in the jail not exceeding thirty days.
Persons wilful- Sect. 86. Whoever is discovered in the act of wilfully injuring any
or'commiftin''" f'"'"*' o'' foi'cst trccs, or Committing any kind of malicious mischief on
mischief oil ° the Lord's day, may be arrested by any sheriff, dc]nity-sheriff, con-
may be arrest- stable, watchman, police officer, or other person, and lawfully detained
is5i*oin '^y imprisonment in the jail or otherwise, until a complaint can be
i852j24o! made against him for the ofience for which he was arrested, and he be
taken upon a warrant issued upon such complaint ; but such detention
without warrant shall not continue more than twenty-four hours,
lulling pitreons Sect. 87. Whoever wilfully commits any trespass bj' killing pigeons
iii'<^ from beds '^"' °^" friglitciiing them from, beds maile tor the jiurpose of taking them
1S49, 29, §1. in nets, by firing guns, or in any other manner, within one himdred
rods of the same, except on lands lawfully occupied by himself, shall be
punished by imprisonment in the jail not exceeding thirty days, or by
fine not exceeding twenty dollars; and shall also be liable for the actual
damages to the owner or occujiant of such beds.
Injury or re- Sect. 88. Whoever unlawfully enters any houss or hut, the proper-
Mopert'y of Hu- ^Y "^ ^^^'^ Humane Society, and wilfully injures, destroys, removes, or
m.ane Society, carries away any food, fuel, oil, candles, furniture, utensils, or other prop-
''^?' erty, belonging to said society, or unlawfully or wilfully enters any boat-
house of said society, and carries away, removes, or injures, any life-
boat, car, or any of the ropes, tackle, oars, or any appurtenance thereof,
or wilfully injures or destroys, or unlawfully uses or commits any tres-
pass upon the property of said society, intended or kept for the ]iur-
pose of saving or preserving human life, or commits any trespass ujion
such hut or boat-house, shall be punished by fine not exceeding one
hundred dollars, or by ini])risonmcnt in the jail not exceeding ninety
days ; but the penalties of this section shall not apply to persons for
whose use said boats, houses, and other property, are intended and kept.
Pilots, commissioners of wrecks, sheriffs, and their deputies, and consta-
bles, shall make complaint against all persons guUty of any offence
under this section.
Chap. 162.]
807
Sect. 89. "Whoever sets fire to any coal-pit or pile of Avood for the
purpose of charring the same, on any woodland in either of the towns
of New Bedford, Dartmouth, Fall River, Freetown, and Fairhaven,
in the county of Bristol, and 3Iiddleborough and Rochester in the
county of Plymouth, between the first day of April and the first day
of October annually, shall forteit one hundred dollars for each oftence.
Sect. 90. Wlioever between the times aforesaid sets fire to any
brushwood or bushes on any part of such woodland, or any land adjoin-
ing thereto, so as to cause the burning thereof, shall forfeit fifty dollars
for each ofifenee.
Sect. 91. All forfeitures under the two preceding sections may be
recovered, one half to the use of the town in which the offence is com-
mitted, and the other half to the use of whoever sues therefor.
Setting firo to
coal-pits, on
woodland, in
Xew Bedford,
A-c, between
3Iarch and Oc-
tober.
1839, H8, § 1.
Burning brueh
wood, &c.
1830, 148, § 2.
How penalties
recovered, and
to whose use.
1839, 118, §3.
CHAPTER 162.
OF FORGERY A^iT) OFFENCES AGAIXST THE CURRENCY.
SErTION
1. Forgery of records, contracts, &c.
2. Utterin;^ forijod records or eoutrjicts.
3. Forginjj notes of state treasurer, &c.
4. banlv bills or notes.
5. Haviu": in possession ton or more counter-
feit bills, with intent, &c.
6. Fassinf^ counterfeit bills or forj^ed notes.
7. Second conviction, and three convictions at
same term.
8. Having counterfeit bills with intent, &c.
9. JIakiug or having tools, »S:c., for counter-
feiting, with intent, &c.
10. Testimony of pre.^ident, A-c., of banks, dis-
peused witli in certain eases.
11. Sworn certificates of certaiu officers made
evidence.
12. Affixing fictitious signatures.
13. Intent to defraud ; statement and proof.
14. Couuterfeitiug coin, or having ten counter-
feit pieces, &c.
15. Haviu'g less than ten pieces, with intent,
&c. Uttering counterfeit coin.
Section
10. Second conviction, and three conTictions at
same term.
17. Slaking, mending, or having, tools for coin-
ing with intent, Ac.
18. Issuing or passing notes as currency, &c.,
except, &c.
19. small notes, &c., as currency.
20. Circulation of fractional bills.
21. Fraudulently connecting parts of several
bank notes, &c.
22. Wilful and malicious injury to bank bills.
23. gathering up, &c., bills of b.ank for pur-
poses of injuring business, A'C. Penalty.
Having iu possession xmcurrent and worth-
less bills, &c.
Uttering or passing such bills, Ac.
26. Engraving, Ac, shop bills resembling bank
bills.
27. Sheriif, A'c, to seize counterfeit bills, Ac.
28. Kemuneration to prosecutors, Ac, of for-
gers, &c.
24.
25.
Sectiox 1. Whoever falsely makes, alters, forges, or counterfeits, a
public record, or a certificate, return, or attestation, of any clerk or
register of a court, ])ublic register, notary public, justice of the peace,
town clerk, or any other public officer, in relation to a matter wherein
such certificate, return, or attestation, may be received as legal proof;
or a charter, deed, will, testament, boml, or writing obligatory, letter of
attorney, policy of insurance, bill of lading, bill of exchange, or promis-
sory note ; or an order, acquittance, or discharge, for money or other
property; or an acee)jtanee of a bill of exchange, or indorsement or
assignment of a bill of exchange or promissory note for the pajTiient of
money; or an accountable receipt, for money, goods, or other property;
witli intent to injure or defraud any person, shall be punished by im-
prisonment in the state prison not exceeding ten years, or in the jail not
exceeding two years.
Sect. 2. Whoever utters and jsublishes as true a false, forged, or
altered record, deed, instrument, or other writing, mentioned in the pre-
ceding section, knowing the same to be false, altered, forged, or coun-
terfeit, with intent to injure or defraud any person, shall be punished by
imprisonment in the state prison not exceeding ten years, or in the jail
not exceeding two years.
Forgery of rec-
ords, contracts,
Ac.
R. S. 127, §1.
IMS, 93.
2 Mass. 397.
10 Mass. 181.
15 Mass. 526.
17 Mass. 46.
3 Cush. 150.
3 Gray, 441, 448.
Uttering forged
records or con-
tracts.
E. S. 127, §2.
808
FORGERY, AND OFFENCES AGAINST THE CURRENCY. [CHAP. 162.
VoT^ng notes
of state treasu-
rer, &c.
II. S. 127, §3.
tiee § 28.
bank bills or
notes.
R. S. 127, §4.
See § 23.
ITaving in pos-
session ten or
more counter-
feit bills, with
intent, &c.
E. S. 127, §5.
2 Mass. 138.
8 Mass. 59.
4 Pick. 233.
Passiuff coun-
terfeit Bills or
forged notes.
K. S. 127, § (i.
11 Mass. 130.
Second con\nc-
tiou, and three
convictions at
same term.
K. S. 127, § 7.
Havinq; coun-
terleit Dills,
with intent, &c.
K. S. 127, § S.
Act of amend.
§13.
Making or hav-
inf^ tools, &c.,
for counterfeit-
ing, with intent,
&c.
E. S. 127, § 0.
Act of amend.
§10.
Sect. 3. Wlioever f;ilsely makes, alters, forge.s, or counterfeits, a
note, certificate, or other bill of credit, issued by the treasurer of this
commonwealth, or Viy any commissioner or other officer authorized to
issue the same for a debt of this commonwealth, with intent to injure
or defr.aud any person, shall be punished by imprisonment in the state
prison for life, or for any term of years.
Sect. 4. Whoever falsely makes, alters, forges, or counterfeits, a
Ijaiik bill or promissory note, ]:)ayable to the bearer thereof or to the
order of any person, issued by an incorporated bauking company estab-
lished in this state, or within the United States, or any foreign jirovince,
state, or government, witli intent to injure or defraud any jierson, shall
be punished by imprisonment in the state jn-ison for life, or lor any term
of years.
Sect. 5. Wlioever has in his possession at the same time ten or
more similar, false, altered, forged, or counterfeit notes, bills of credit,
bank bills or notes, sucli as are mentioned in any of the preceding sec-
tions, payable to the bearer thereof, or to the order of any ]ierson, know-
ing the s.ame to be false, altered, forged, or counterfeit, with intent to
utter or pass the same as true, and tliereby to injure or deframl any
person, shall be jiunished by imprisonment in the state piison for life, or
for any term of years.
Sect. 6. Whoever utters or passes, or tenders in payment as true,
any such false, altered, forged, or counterfeit note, certificate, or bill of
credit for any debt of this commonwealth, or any bank bill, or jiromis-
sory note, payable to the bearer thereof or to the order of any person,
issued as aforesaid, knowing the same to be flilse, altered, forged, or
counterfeit, witli intent to injure or defraud any jjcrson, shall be jniii-
ished by im]u-isonment in the state prison not exceeding five years, or
by fine not exceeding one thousand dollars and imprisonment in the jail
not exceeding one year.
Sect. 7. Whoever, having been convicted of the offence mentioned
in the preceding section, is again convicted of the like of5?nce com-
mitted after the former conviction, and whoever is, at the same term
of the court, convicted upon three distinct charges of sucli offence, shall
be deemed a common uttercr of counterfeit bills, and be punished by
im))risonment in the state prison not exceeding ten years.
Sect. 8. Whoever brings into this state, or has in his possession, a
false, forged, or counterfeit bill or note, in the similitude of the bills or
notes, payable to the bearer thereof or to the or.lcr of any j)crson, issued
by or for any bank or banking com])any, establislied in this state, or
within the United States, or in any foreign province, state, or govern-
ment, with intent to utter or pass the same, or to render the same cur-
rent as true, knowing the same to be false, forged, or counterfeit, shall
be punished by imprisonment in the state prison not exceeding five
years, or by fine not exceeding one thousand dollars and imprisonment
in the jail not exceeding one year.
Sect. 9. Whoever engraves, makes, or mends, or begins to engrave,
make, or mend, any plate, block, press, or other tool, instrument, or im-
plement, or makes or provides any paper or other material, adapted and
designed for the forging or making a false and counterfeit note, certifi-
cate, or other bill of credit, ]iurporting to be issued by lawful authority
for a debt of this commonwealth, or a false and counterfeit note or bill in
the similitude of the notes or bills issued by any bank or banking com-
pany established in this state, or within the United States, or in any
foreign province, state, or government, and whoever has in his posses-
sion any such plate or block engraved in any part, or any press, or other
tool, instrument, or im|)lement, or any pa])er or other material, ada]itcd
.and designed as aforesaid, witli intent to use the same, or to cause or per-
mit the same to be used, in forging or making any such false and coun-
canes.
10.
Chap. 162.] forgery, and offences against the currency. 809
terfeit certificates, bills, or notes, shall be puni.shed by imprisoninent in
the state prison not exceeding ten years, or by fine not exceeding one
thousand dollars and imprisonment in the jail not exceeding two years.
Sect. 10. In prosecutions for forging or counterfeiting notes or bills Testimony of
of the banks before mentioned, or for uttering, publishing, or tender- {Jf banks' dts'^"'
ing in payment, as true, any forged or counterfeit bank bills or notes, pensed with, m
or for being jiossessed thereof with intent to utter and pass the same as u.''s.'r/r?T]'
true, the testimony of the president and cashieV of such banks may be " ^'"^- H-
dispensed with, if their place of residence is out of this .state, or more * *^"''''' '^'
than forty miles from tiie place of trial ; and the testimony of any per-
son acquainted with the signature of such president or cashier, or who
has knowledge of the difference in the ajipearance of the true and the
counterfeit bills or notes of such banks, may be admitted to prove that
such bills or notes are counterfeit.
Sect. 11. In prosecutions for forging or counterfeiting any note, cor- swom cortifl-
tificate, bill of credit, or other securih',"issued on behalf of the United "■•■i'''sof<-i;rtain
c- .. 1 1 li' V . . * - .. . ..... oincors made
M.ates, or on behalt oi any state or territory, or tor uttering, jMibhsliing, evidence.
or tendering in jiajnnent, as true, any such forged or counterfeit note, ,'«!; 'i?'^ "°'^*^'
certificate, bill of credit, or security, or for being possessed thereof with ii.'s.Y-T, §ii.
intent to utter and pass the same as true, the Certificate under oath of
the secretary of the treasury, or of the treasurer of the United States,
or of the secretary or treasurer of any state or territory, on whose behalf
.such note, certificate, bill of credit, or security, ])urports to have been
issued, shall be admitted as evidence, for the purpose of proving the
same to be forged or counterfeit.
Sect. 12. If a fictitious or pretended signature, purporting to be the Atiixin<j ncti-
signature of an oflicer or agent of a corporation, is frauduleiitly affixed Ji,™3 *'='"'"
to any instrument or w-riting, purporting to be a note, draft, "or other R- s.'i2r, § is.
evidence of debt issued by such corporation, with intent to pass the ^^'»*^-'"-
same as true, it shall be deemed a forgery, though no such person may
ever have been an officer or agent oi" such corporation, or ever have
existed.
Sect. 13. Where an intent to defraud is required to constitute the intent to do-
offl-nce of forgery, or any other offence, it shall be sufficient to allege in men? and proof
t!ie indictment an intent to defraud, without naniing'therein the ]iartie- R. s. i2r,§H.
iilar person or body corporate intended to be defrau<ied ; and on the trial " ^'^'•■"^•
it shall be sufficient, and shall not be deemed a variance, if there appears
to be an intent to defniud the United States, or any state, county, city,
town, or parish, or any body corporate, or any public officer in his
official capacity, or any copartnership or members thereof; or any par-
ticular person.
Sect. 14. Whoever counterfeits any gold or silver coin cuiTent by Counterfeiting
law or usage ^yithin this state, or has in his possession at the same time teuiountcl&i
ten or more pieces of false money, or coin counterfeited in the simili- pieces, &c.
tude of any gold or silver coin current as aforesaid, knowing the same s' jia'ssfsi)? '°'
to be false and counterfeit, and with intent to utter or j)ass the same ^jf^t'^j?!'-
as true, shall be punished by imjirisonnient in the state jirison for life, lo jiet. 250.
or for any term of years. 1 Gray, sac. See §28. is Met. 515.
Sect. 15. Whoever has in his possession any number of pieces, less Having- less
than ten, of the counterfeit coin mentioned in" the pi-eceding section, "'/;|; 1;;",,','^™!'.'
knowing the same to be counterfeit, with intent to utter or pass the uttering- coim- "
same as true, or utters, passes, or tenders in jjayment, as true, any such irs."i3r,'§'i(i.
counterfeit coin, knowing the same to be false "and counterfeit, shall be -^ j/p}'-.;^;?-
punished by imprisonment in the state jirison not exceeding tea years, 13 Met! sis!
or by fine not exceeding one thousand dollars and imprisonment in th« sc*^'?a; '^'''
jail not exceeding two years.
Sect. 16. Whoever, having been convicted of either of the offences Second conHe-
mentioned in the preceding section, is again convicted of either of the c'om-irtions at"
same offences, committed .after the fonner conviction, and whoever is at B'uncterm.
68* 102
810 FORGERY, AND OFFENCES AGAINST THE CURRENCY. [ChAP. 162.
R. s. 127, § 1?. the same term of the court convicted upon three distinct charges of
13 Met. 514. gjjjj offences, shall be deemed a common utterer of counterfeit coin, and
punished by imprisonment in the state prison not exceeding twenty
years.
Making, mend- Sect. 17. Whocver casts. Stamps, engraves, makes, or mends, or
tooi8"for coin? knowingly has in his possession, any mould, pattern, die, puncheon, en-
ing.with intent, gine, press, or other tool or instrument, adapted and designed for coining,
n.'s. 127, § 18. or making counterfeit coin, in the similitude of any gold or silver coin
s*^«*28^^' current by law or usage in this state, with intent to use or employ the
same, or to cause or permit the same to be used or emj)loyed in coining
or making any such false and counterfeit coin as aforesaid, sliall be pun-
ished by imprisonment in the state prison not exceeding ten years, or by
fine not exceeding one thousand dollars and imprisonment in the jail
not exceeding two years.
Issuing or pass- Sect. 18. Whoever issues or passes any note, bill, order, or check,
cufrencv &c Other than foreign bills of exchange, the notes or bills of some bank
except, Ac. incorporated by the laws of this state, or by the laws of the United States,
■ ■ ' ' ' ' or of some one of the United States, or by the laws of either of the
British Provinces in North America, with the intent that the same shall
be circulated as currency, shall forfeit fifty dolhirs for each offence,
sm.iii notes, Sect. 19. Whoever issues or passes any note, bill, order, or check,
cy 'cxeopt!^&c Other than the notes or bills of a bank incorporated under the authority
K. s. 33, § 7. of this state or some one of the United States, for a sum less than five
dollars, or whereon a less sum than five dollars is due at the time of
such issuing or passing thereof, with intent that the same shall be circu-
lated as currency, shall forfeit fifty dollars for each offence.
Circulation of Sect. 20. Whoever receives or ])uts in circulation as. currency a
1853, 392, §2. ' bank note or bill which is, or a part of whicli is, for any fractional part
of a dollar, shall be punished by fine of twenty-five dollars.
Fraudulently Sect. 21. Whoever fraudulently connects together different parts of
i)art8^of"sfverai ^G'^''"!''^! bank notes, or other genuine instruments, in such a manner as
b.ank notes, &c. to produce One additional note or instrument, with intent to pass all of
io'Ma88'!'34.'~' them as genuine, shall be deemed guilty of forgery in like manner as if
each of them had been falsely made or forged.
Wilful and ma- Sect. 22. Whoever wilfully and maliciously tears, cuts, or in any
licious injury to mmjucr damages and imiiairs the usefulness for circulation of any bank
bank bills. ;t^ i , . ^ , ■ , ,, , • , i , i» i
1852,64. bill or note of a bank in tins state, shall be punished by nne not exceed-
ing ten dollars for each offence ; but the possession or uttering of a bill
so injured shall not be evidence against a party charged, unless con-
nected with other circumstances tending to prove that the bill or note
was injured by him.
gathering up, Sect. 23. Whoever maliciously gathers up or retains, or maliciously
bimk''for^pur- ^^'~^^ "^ gathering up or ret;iining, any bills or notes of any bank or bank-
pose of injuring ing company, current by law or usage in this state, for the purpose of
Penalty!' *"' injuring or im])eding the circulation or business of such bank or banking
isj'j, 116, §§3, 4. company, or of com))elIing it to do any act out of the usual course of its
business, shall be punished by fine not exceeding five hundred dollars,
or by imprisonment in the jail not exceeding two years; and in the
prosecution of any sucli offence it shall not be necessary to set out and
describe each bill, but it shall be sufficient to aver and prove any amount
of the bills of any bank which have been so gathered up or retained.
Having in pos- Sect. 24. Whoever has in his possession at the same time five or
rent'and^wortii- "lore uncurreut bank bills or notes, which are worthless as bank bills or
less bills, &c. notes, knowing the same to be worthless as aforesaid, or has papers not
S?eY^l' ^ '' hank bills or notes, but made in the simihtude of bank bills or notes, or
papers purporting to be the bills or notes of any bank which has never
existed, knowing the character of such pa})crs, with intent to pass,
utter, «r circulate, the same, or to procure any other ])crson so to do, for
the piupo&e of injuring or defrauding, shall be jjunished by imprison-
Chap. 163.] offences against public justice.
811
ment in the state prison not exceeding five years, or by fine not exceed-
ing five hundred dollars and imprisonment in the liouse of correction
not exceeding three years.
Sect. 25. Whoever utters or passes, or tenders in payment as true, uttering or
any such uiicurront and worthless bank bill or note, or any pa]ier not a bing"J&.^"'^'^
bank bill or note, but made in the sinulitude of a bank bill or note, issr, 2:ii_, §2.
or any paper jnirporting to be the bill or note of any bank which has "^^sS-'.^s.
never existed, knowing the same to be worthless and uneurrent, as
aforesaid, with intent to injure and defraud, shall be punished by impris-
onment in the state prison not exceeding five years, or by fine not
exceeding five hundred dollars and imprisonment in the house of cor-
I'ection not exceeding three years.
Sect. 26. Whoever engraves, ])rints, issues, utters, or circulates, a Engraving, &c.,
shop bill or advertisement, in similitude, form, and appearance, like a so'n,bii'n'i''bMik
bank bill, on jiaiier similar to paper used for bank bills, and with vignettes, ''"'^s-
figures, or decorations, used on bank bills, or liaving the general appear- '
ance of a bank bill, shall be punished by fine not exceeding fifty dollars,
or by imprisonment in the jail not exceeding ninety days.
Sect. 27. When false, forged, or counterfeit bank bills, or notes, or Sheriff, &c., to
pl.ates, dies, or other tools, instruments, or im])lcmcnts, used by counter- fen bi'iis"&"
feiters, or designed for the forging or making of false or counterfeit isss, uis,' § 1.'
notes, coin, or bills, or wortldess and uneurrent bank bills or notes de- '^'■^*>§3-
scribed in sections twenty-four and twenty-five, come to the knowledge
of any sheriff, constable, police officer, or other officer of justice, in this
state, such officer shall immediately seize and take possession of and
deliver the same into the custody of the court of record having juris-
diction of the oftence of counterfeiting in the county, and the court
sh.all, as soon as the ends of justice will permit, cause the same to be
destroyed by an officer of the court, who shall make return to the court
of his doings in the premises.
Sect. 28. Upon a conviction of any offence mentioned in sections Eemuneration
three, four, fourteen, fifteen, seventeen, or twenty-five, and also upon &c!!'of for*?"'
forfeiture by persons ])rosecuted for any such offence of .any recognizance *<^-.
for their appearance to answer to the same, the court before which the "^ ''' *~! '"
conviction is had, or where the record of the recognizance may be, may
order a meet recompense to the prosecutor and to the officer who has
secured and kept the evidence of the offence, not exceeding their actual
expenses with a reasonable allowance for their time and trouble, to be
p.aid by the county treasurer, and ch.arged by him to the commonwealth;
but where recognizances are so forfeited, the amount paid in any case
shall not exceed the amount received by the commmonwealth thereon.
CHAPTEK 163.
OF OFFENCES AGAINST PUBLIC JUSTICE.
Section
1. Perjury.
2. what 8hall be deemed.
3. Bubornation of.
4. inciting to commit.
5. on presumptiou of, by witness, court may
commit, »S:c.
6. Papers, »tc., mny be secnred.
7. Givinf^ or offerinii- brilies to officers.
8. Acceptance of bribes by officers.
Sectiox
9. Corrupting jurors, arbitrators, &c.
10. Acceptimcc of bribes by jurors, arbitra-
tors, &c.
11. Attempts to aid escapes from prison, and
rescuing- prisoners.
12. Aiding in an escape from an officer.
13. Voluntary escape from prison.
14. Negligent escape ; refusing to receive pris-
oner.
812
OFFENCES AGAINST PUBLIC JUSTICE. [ChAP. 163.
Section
15. Refusing to arrest, and suffering escape.
16. to aid officers.
17. upon order of a justice of the peace.
18. Falsely assuming to be a justice of the
peace or officer.
Section
19. Disguising, to resist execution of the law.
;iO. Concealing and compounding otlVnces.
21. Officers taking rewards for omitting their
duty.
22. Extortion, by taking unlawful foes.
Perjury.
K. S. 128, § 1.
1:; 5Iass. 2H.
what shall be
deemed.
K. S. W, § 12.
K. S. las, §3.
subornation
of.
K. S. 128, § 3.
inciting to
commit.
R. .S. 128, §4.
on presump-
tion of, by wit-
ness, court may
commit, &c.
K. S. 128, § (i.
Tapers, &c.,
mav be secured.
R. S. 128, § 7.
Giving or offer-
ing bribes to of-
ficers.
R. S. 128, §8.
Acceptance of
bribes by offi-
cers.
R. S. 128, § 9.
Section 1. Whoever, being lawfully required to depose the truth in
any proceeding in a course of justice, commits perjury, shall be punished,
if the perjury is committed on the trial of an indictment for a ca])ital
crime, by imprisonment in the state prison for life, or any term of years,
and if committed in any other case, by imprisonmeiit in the state prison
not exceeding twenty years.
Sect. 2. Whoever, being recpiired by law to take an oath or affirma-
tion, wilfully swears or affirms tiilsely, in regard to any matter or thing
respecting which such oath or affirmation is required, shall be deemed
guilty of perjury.
Sect. 3. Whoever is guilty of subornation of peijury, by procuring
another person to commit perjury, shall be punished in the same man-
ner as for perjury.
Sect. 4. Whoever endeavors to incite or jirocure any other person
to commit perjury, though no perjury is committed, shall be punished
by imprisonment in the state prison not e.xceeding five years, or in the
jail not exceeding one year.
Sect. 5. When it a]3pears to a court of record, that a witness or
party who has been legally sworn and examined, or has made an affid.i-
vit, in any proceeding in a course of justice, has so testified as to induce
a reasonable presumption that he is guilty of perjury therein, the court
may immediately commit such witness or party by an order or process
for that purpose, or mav take a recognizance with sureties for his appear-
ing to answer to an indictment for peijury; and thereupon the witnesses
to establish such peijury may if present be bound over to the proper
court, and notice of the proceedings shall forthwith be given to the dis-
trict-attorney.
Sect. 6. If in any proceeding in a court of justice, in which peijury
is reasonably presumed as aforesaid, pa]iers, books, or documents, have
been produced, which are deemed necessary to be used on a prosecution
for such peijury, the court may by order detain the same from the per-
son producing them, so long as may be necessary for their use in such
prosecution.
Sect. 7. Whoever corruptly gives, offers, or promises, to any execu-
tive, legislative, or judicial officer, af^er his election or ap]3ointmcnt, either
before or .atler he is qualified, or has taken his seat, any gift or gratuity
whatever, with intent to influence his act, vote, opinion, decision, or
judgment, on any matter, question, cause, or proceeding, which may be
then pemling, or may by law come or be brought before him in his offi-
cial cajiacity, shall be jmnished by imprisonment in the state prison not
exceeding five years, or by fine not exceeding three thousand dollars
and imprisonment in the jail not exceeding one year.
Sect. 8. Every executive, legislative, or judicial officer who corruptly
acce]>ts a gift or gratuity, or a promise to make a gift, or to do an act
beneficial, to such officer, under an agreement, or with an understand-
ing, that his vote, opinion, or judgment, shall be given in any p.articular
manner, or upon a particular side of any question, cause, or proceeding,
which is or may be by law brought before him in his official capacity, or
that, in such capacity, he shall make any particular nomination or a])j)oint-
ment, shall forfeit his office, be forever disqualified to hold any public
office, trust, or appointment, under the constitution or laws of this state,
and be ])unished by imprisonment in the state prison not exceeding ten
years, or by fine not exceeding five thousand dollars and hnprisonment
in the jail not exceeding two years.
I
Chap. 163.J offences against public justice. 813
Sect. 9. Whoever comipts, or .attempts to corrupt, .any master in Corrupting ju-
clianeery, auditor, juror, arbitrator, \im|iire, or referee, by griving, ottering, [ors,' Ac.""^"
or promising, any gift or gratuity whatever, with intent to bias the k. s. i3b,§io.
opinion or influence the decision of such master in ch.incery, auditor,
juror, arbitrator, umpire, or referee, in relation to any cause or matter
pending in the court, or before an inquest, or for the decision of wliieli,
such arbitr.itor, um|)ire, or referee, has been chosen or appointed, shall be
punished by imprisonment in the state ]irison not exceeding five yeare,
or by tine not exceeding one thousand dollars and imprisonment in the
jail not exceeding one ye.ar.
Sect. 10. If any person summoned as a juror, or chosen or appointed Acceptance of
as an arbitrator, umpire, or referee, or if any master in chancery, or rors'^arS^ra-
auditor, corruptly takes any thing to give his verdict, award, or rejiort, tors, &c.
or corruptly receives any gift or gratuity whatever, from a party to a ' ■'^•' •
suit, cause, or proceeding, for the trial or decision of which such juror
has been summoned, or for the hearing or determination of wliich such
master in chancery, auditor, arbitrator, umpire, or referee, has been chosen
or appointed, he shall be punished l)y imprisonment in the state prison
not exceeding five years, or by fine not exceeding one thousand dollara
and imprisonment in the jail not exceeding one year.
Sect. 11. Whoever conveys into a jail, house of correction, house Attempts to aid
of reformation, or other like j^lace of confinement, any disguise, instru- prison* Md"re8-
ment, tool, weapon, or other thing, adapted or useful to aitl a prisoner i-uingprisoners.
in making his escape, with intent to f icilitate the escape of any prisoner ' ' '^•s'--
there lawfully committed or detained ; or by any means whatever aids
or assists such prisoner in his endeavor to escape therefrom, whether
such escape is effected or attempted or not ; and whoever forcibly res-
cues any prisoner held in custody upon any conviction or charge of an
otfL-nce ; shall be punished by imprisonment in the state prison not exceed-
ing seven years ; or if the person whose escape or rescue was effected or
intended was charged with an offence not capital nor punishable by
imjirisonment in the st.ate prison, then by imprisonment in the jail not
exceeding two years, or by fine not exceeding five liuudred dollars.
Sect. 12. Whoever aids or assists a prisoner in escajiing, or attempt- Aidin» in an es-
ing to escape, from an ofKcer or person who has the lawful custody of eape "<"»> a° »<"-
such prisoner, shall be punished bj' imprisonment in the jail not exceed- e. s. 12s, § w.
ing two years, or by fine not exceeding five hundred dollars.
Sect. 1.3. If a jailer or other officer voluntarily suffers a prisoner in voluntary es-
his custodj' upon conviction or any criminal charge, to escape, he shall "fgon™™
sutterthe like punishment and penalties as the prisoner suttcred to escape r. s. ia8,§i4.
■w.as sentenced to, or would be liable to suffer upon conviction of the
crime or offence wherewith he stood charged.
Sect. 14. If a jailer or other officer tlirough negligence suffers a Negligent es-
prisoner in his custody upon conviction or any criminal charge, to escape, fu^^', "Jo rcT
or wilfully refuses to receive into his custodv a iirisoner lawfullv directed ccive a prisoner,
i i_ -^ -^^ 1 ^1- ^ ••It'' • X- " 1 l{. S. las, § 15.
to be committed thereto on a criminal charge or conviction, or any law-
ful ]irocess whatever, he shall be punished by imiiris<jnment in the jail
not exceeding two years, or by fine not exceeding five hundred dollars.
Sect. 15. If an officer authorized to serve process, wilfully and Eefusinn- to .ir-
corruptly refuses to execute any lawful process to him directed, and [ngcscapJ" "
requiring him to a]i]irehend or confine any person convicted or charged K. s. las, § ir>.
with an oftVnee, or wilfully and corruptly omits or delays to execute such
process, whereby such person escapes and goes at large, he shall be ]Hm-
ished by imiirisonment in the jail not exceeding one year, or by fine not
exeee ling five hundred dollars.
Se''t. If). Whoever being required in the name of the common- toaidomccrs.
wealth, by a sheriff; deputy-sheriff, coroner, constal)le, police officer or l^^^^i^'''
w.atchman, neglects or refuses to assist him in the execution of his office
in a criminal case, or in the preservation of the peace, or the appre-
814
OFFENCES AGAINST PUBLIC JUSTICE. [ChAP. 163.
Itf'fusing; to ar-
r.'st upon order
ofii jnf^tiee of
the peace.
U. S. 128, § 18.
Falsely assura-
in;^ to be a JU8-
tieeof the peace
or officer.
I!..S. 12.S,§19.
II) CusU. 01.
Dis!^iuslng to
resist execution
of the law.
K. S. 12S, § 30.
Concealinf^ and
conipouuuiu^
otfeaces.
K. S. 1-iS, § 21.
10 Mass. til.
Officers, taking
rewards for
omittinjj their
duty.
K. S. 1'28, § 22.
Extortion by
taking illej^al
fees.
R. S. 12S, § 2.3.
1S52, 312.
18M,311, §2.
1 .Mass. 227.
1., Mass. 525.
\7 Mass. 410.
7 I'ieli. 171.
1 I'ick. 279.
bending or securing of any person for a breach of the jieacc, or in a
case of escape or rescue of jiersons arrested upon civil process, shall be
punished by imprisonment in the jail not exceeding one month, or by
line not exceeding fifty dollars.
Sect. 17. Whoever being required by a justice of the peace, upon
view of a breach of the peace or any other oflence jirojier for liis cog-
nizance, to apprehend and bring before him the oifender, refuses or neg-
lects to obey such justice, shall be punished in the manner provided in
the preceding section for refusing assistance to a sheriff; and no person,
to whom such justice is known or decl.ares himself to be a justice of the
peace, shall plead any excuse on pretence of ignorance of his office.
Sect. 18. Whoever falsely assumes or ]iretends to be a justice of the
peace, sherilf, deputy-sherifl", coroner, constable, police officer, or watch-
man, and takes upon himself to act as such, or to require any person to
aid or assist him in a matter pertaining to the duty of any such officer,
shall be punished by imprisonment in the jail not exceeding one year,
or by fine not exceeding four hundred dollars.
Sect. 19. Whoever in any manner disguises himself, with intent to
obstruct the due execution of the law, or with intent to intimidate, hin-
der, or interrupt, any officer or other person in the legal performance of
his duty, or the exercise of his rights under the constitution or laws of
this state, whether such intent is effi>cted or not, shall be punished by
imprisonment in the jail not exceeding one year, or by fine not exceed-
ing five hundred dollars, and may also be bound to good behavior for
the term of one year after the expinxtion of such imprisonment.
Sect. ^0. Whoever, having knowledge of the commission of an
offi.'nce punishable witli death or by imprisonment in the state prison,
takes money, or a gratuity or reward, or an engagement therefor, upon
an afTreement or understanding express or implied to compound or con-
ceal such offence, or not to jirosecute therefor, or not to give e\'i-
dence thereof, shall, where such offi'iice of which he has knowledge is
punishable with death or imprisonment in the state prison for life, be
punished by im])risonment in the state prison not exceeding five years,
or in the jail not exceeding one year ; and where the oflence of which
he so had knowledge was ])unishable in any other manner, he shall be
punished by imprisonment in the jail not exceeding two years, or by fine
not exceeding five hundred dollars.
Sect. 21. If a sherift", constable, or other officer authorized to serve
legal process, receives from a defendant, or any other person, any money
oi'other valuable thing, as a consideration, reward, or inducement, for
omitting or delaying to arrest a defendant, or to carry him before a
magistrate, or for delaying to take a person to prison, or for postponing
thesale of property under an execution, or for omitting or delaying to
perform any duty pertaining to his office, he shall be punished by fine
not exceeding three hundred dollars, or by imprisonment in the jail not
exceeding three months.
Sect. 'li. A recording officer who wilfully and corrujitly demands
and receives any greater fee for an official duty or service than is allowed
by law, shall forfeit fifty dollars for each oflence ; and any other person
who wilfully and corruptly demands and receives for the performance
of any official duty or service for which a fee or compensation is allowed
and provided by law, a greater fee or compensation than is so allowed
and provided, shall forfeit thirty dollars for each oflence; which pen-
alties may be recovered by complaint or indictment to the use of the
commonwealth, or by action of tort to the use of any pei-son who sues
therefor: 2»-ovide(7, that the prosecution or action is commenced within
one year after the oflence is committed.
Chap. 164.J offences against the pdbuc peace.
815
CHAPTER 164.
OF OFFENCES AGAINST THE PUBLIC PEACE.
Section
1. Unlawful assembliOB, liow suppressed.
2. Refusinj^ assistance, when required ; or to
disperse, when commanded.
3. Neglect of mayor or other officer to sup-
press, &c.
4. Officers may quell unlawful assemblies, by
force, &c.
5. Armed force, if called out, to obey orders
of governor, judge, &c.
C. Officers, &c., to b^ held guiltless, though
death is caused. Kiotcrs, &e., responsible.
Section
7. Riotously destroying dwelling-house, &c.
8. Towns, &c., to pay three fourths of value
of property destroyed or injured.
9. may recover from offenders.
10. Carrying slung shot.
11. Manufacturing, &c., slung shot.
12. JIaking bonfire within ten rods of a build-
ing.
13. False alarm of flre.
lien
rto
Section 1. If any pcrson.s, to the number of twelve or more, being unlawful as-
.armed with ohib.s or other tlangerou.<i weapons, or if any ]wrsons, to the ^""^rJ,'gselJ°'''
number of thirty or more, wliether armed or not, are unlawfully, riot- u. s. lai), §i.
ously, or tumultuously assembled in any city or town, it shall be the '"^"^s. 5i8.
duty of the mayor and of each of the aldennen of such city, and of each
of the selectmen of such town, and of every justice of the peace living
in any such city or town, and also of the sheriff of the county and his
deputies, to go among the persons so assembled, or as near to them as
ma}' be with safety, and in the name of the commonwealth to command
all the persons so assembled, immediately and peaceably to disperse ;
and if such persons do not thereupon immediately and peaceably dis-
perse, it shall be the duty of each of said magistrates and officers to
command the assistance of all persons there present, in seizing, aiTcst-
ing, and securing, such persons in custody, so that they may be pro-
ceeded with for their offence, according to law.
Skct. 2. If any person present, beincr commanded by any of the Refusing as
... ill i- 1 • ii 1* i- i* • 1 sistance win
magistrates or otncers mentioned m the prccctung section to aid or required ; or
assist in seizino; and securinrj such rioters, or iier.sons so unlawfully as- disperse wheu
, , , . ^ . ^ , . 1 .. , 11 £. commanded.
.semoled, or in suppressing such not or unlawful assembly, refuses or k. s. i^u, §2.
neglects to obey such command, or, when required by such magistrate
or officer to depart from the ])lace, refuses or neglects so to do, he shall
be deemed one of the rioters, or persons unlawfully assembled, and may
be prosecuted and punished accordingly.
Sect. 3. If any mayor, alderman, .selectman, justice of the peace. Neglect of
sheriff, or deputy-sheriff, having notice of any such riotous or tumultu- Ser t°o sui>^'
ous and unlawful assembly, in the city or town in which he lives, neg- 'i'j''''l''ioot3
lects or refuses immediately to proceed to the place of such assembly,
or .as near thereto as he can with safety, or omits or neglects to exercise
the authority with which he is invested by this chajiter for suppi'cssing
such assembly, and for arresting and securing tl>e ofienders, he shall be
punished by fine not exceeding three hundred dollars.
Sect. 4. If any persons who are so riotously or unlawfully assem-
bled, and who have been commanded to disperse, as before provided,
refuse or neglect to disperse without unnecessary del.ay, any two of the 'V'';?'*'"
magistrates or officers before mentioned may require the aid of a suffi- '• ' ■ * '
cieut number of persons, in arms or otherwise as may be necessary, and
shall proceed in such manner as in their judgment is exjiedieut, forth-
with to disperse and suppress such assembly, and seize and secure the
jiersons composing the same, so that they may be proceeded with ac-
cording to law.
Sect. 5. When any armed force called out in the manner provided Armed force, if
by chapter thirteen, to suppress a tumult or riot, or to disperse any body obey'orders°of
of men acting together by force and with intent to commit a felony, or r""'"'^'''
Officers may
q\iell unlawful
assemblies by
816
OFFENCES AGAINST THE PUBLIC PEACE. [ChAP. 164.
R. S. 129, § 5.
See Ch. 13, §131.
Ch. 144, §§ 64,
65.
Officers, &c., to
lio h.'iil ^'iiilt-
1,-ss, thoLi-li
dc;ith is caused.
Rioters, &c., re-
sponsible.
R. .S. 12!), § (i.
WTO, 54, § 1.
Riotously de-
stroying tlwell-
ing-house, &c.
R. S. 129, § 7.
1S52, 312.
Towns, &0., to
pay tlireo-
fourtlis of v.ilue
of property de-
stroyed or in-
jured.
l.s-J'.i, 54, § 2.
lSi2, 312.
m.ay recover
from offenders.
1839, 54, §3.
Carrying slung
shot, «fec.
185U, 194, §1.
lSo2, 29C., § 1.
1«59, 199.
Manufacturing,
&c., slung sliot,
&<■.
1S50, 194, § 2.
Making bonfire
witllin ten rods
of a building.
1837, 177, § 1.
False alarm of
fire.
1837, 177, § 2.
to offer violence to persons or pro])erty, or with intent by force or vio-
lence to resist or oppose the execution of the laws of this state, arrives
at the place of such unlawful, riotous, or tumultuous assembly, they
shall obey such orders for suppressing tlio riot or tumult, and lor dis-
persing and arresting all persons who are committing any of said oflences,
as they have received from the governor, or any judge of a court of
record, or the sheriff of the county, and also such orders as tliey there
receive from any two of the magistrates or officers before mentioned.
Sect. 6. If, by reason of the efibrts made by any two or more of said
magistrates or officers, or by their direction, to disperse such assembly,
or to seize and secure the persons comi)osing the same, who have refused
to disperse, though the number remaining may be less than twelve, any
such person, or other person tlien present, is killed or wounded, the
magistrates and officers, and all persons acting by their order, or under
their directions, and .ill persons acting under the two preceding sec-
tions, shall be held guiltless and fully justified in law; and if any of said
magistrates or officers, or any person acting under or by the direction of
any of the officers before mentioned, is killed or wounded, all persons so
assembled, and all other jiersons who, when commanded or required,
refused to aid and assist s.aid magistrates or officers, shall be held answer-
able therefor.
Sect. 7. If any of the persons so unlawfully assembled demolishes,
pulls down, or destroy.s, or begins to demolish, pull down, or destroy,
any dwelling-house, or other building, or ship or vessel, he shall be pun-
ished by imprisonment in the state i>rison not exceeding five years,, or by
fine not exceeding one thousand dollars and imprisonment in the jail
not exceeding two years, and shall also be answerable to any person
injured, to the full amount of the damage, in an action of tort.
Sect. 8. When jjroperty of the value of fifty dollars or more is
destroyed, or property is inj ured to that amount, by any persons to the
number of twelve or more, riotously, routously, or tumultously assem-
bled, the city or town within which the iiroperty was situated shall Le
liable to indemnify the owner thereof, to the amount of three-fourths of
the value of the property destroyed, or of the amount of such injury
thereto, to be recovered in an action of tort : provided, that the owner
of sucli property uses all reasonable diligence to prevent its destruction
or injury, and to procure the conviction of the oflenders.
Sect. 9. A city or town whicli pays any sum under the provisions
of the preceding section may recover the same against any or all of the
persons who destroyed or injured such property.
Sect. 10. Whoever when arrested upon a warrant of a magistrate
issued .against him for an alleged offence against the laws of this state,
and whoever when arrested by a sheriff, dejiuty-sjierifl!, constable, police
officer, or watchman, while committing a criminal offi-nce against the
laws of this state, or a breach or disturbance of the jniblic jicace, is armed
with, or has on his person, slung shot, metallic knuckles, billies, or other
dangerous weapon, shall be punished by tine not exceeding fifty dollars,
or by imprisonment in the jail not exceeding one year.
Sect. 11. Whoever manufactures, or causes to be manufactured, or
sells, or exposes for sale, any instrument or weapon of the kind usually
known as slung shot, or metallic knuckles, shall be punished by fine not
less than fifty dollars, or by imjirisonment in the jail not exceeding six
months.
Sect. 12. Whoever is concerned in causing or making a bonfire
within ten rods of any house or Iniilding shall be punished by fine not
excee<ling twenty dollars, or imprisonment not exceeding one month.
Sect. 13. Whoever without reasonable cause, by outcry, or the ring-
ing of bells, or otherwise, makes or circulates, or causes to be made or
circulated, a false alann of fire, shall be punished by fine not exceeding
fifty dollars.
Chap. 165.] offences against CHASTiTr, morality, and decency.
81^
CHAPTER 165.
OF OFFENCES AGAINST CHASTITY, MORALITY, AND DECENCY.
Section
1. Abduction of an unmarried female under
si.vtceu for the purpose of marriage.
2. of unmarried women, &c., for the purpose
of prostitution. Limitation.
3. Adultery.
4. Polyj,'amy.
5. Excepted eases.
G. Ix'udand lascivious cohabitation, and open
and gross lewdness.
7. Incest.
8. Fornication.
9. Unlawful attempts, &c., to procure mis-
carriage.
10. Advertising, &c., notices, &c., of means to
procure abortion.
11. Concealment by mother of death of bas-
tard cliild.
12. Ofl'unce may be inserted in iudictment for
murder.
13. Keeping house of ill fame.
14. Lease of house so kept, void at option of
lessor.
15. Importing, selling, receiving, &e., obscene
books or prints, &c.
16. Police court, &c., may issue search warrant
for such books, &c., and cause to be de-
stroyed.
17. Half of fine to be paid to prosecutor.
18. Crime against nature.
10. Hlasphemy.
2<J. Profane cursing and swearing.
Sectiox
21. Disturbing religious worship.
22. Gaming, &c., within a mile of place of field
meeting for religious purposes.
23. Disturbance of schools and public meet-
ings.
24. of funerals.
25. Drunkenness.
2G. second conviction.
27. in the city of lloston.
28. Rogues, vagabonds, Are,
29. may be punished by fine, and sentenced
conditionally.
30. Master of house of industry, &c., to re-
ecive persons committed, &c.
31. Party committing offences, under section
twenty-eight, after appeal.
32. Respondent may be discharged on recogni-
zance, paying costs.
33. I)isorderly persons arrested in night time.
34. Conviction of certain offenders after dis-
charge on former conviction.
35. Night-walking, tliird conviction.
36. Sheriff, &c., taking a dead body.
37. Violation of sepulture.
3S. Buying or having dead body for the pur-
pose of sale, &c.
39. Injuring or defacing tombs, memorials of
the dead, &c.
40. Slaking roads, canals, &c., through burial
grounds.
41. Cruelty to animals.
Section 1. Whoever fraudulently find deceitfully entices or takes
away an unmarried female under the age of sixteen years, from her
father's house or wherever else she may be found, without tlie consent
of the ]iarent, guardian, or master, if any, under whose care and custody
she is living, for the purpose of effecting a clandestine marriage of such
female without such consent, shall be punished by imprisonment in the
state prison not exceeding one year, or by fine not exceeding one thou-
sand dollars, or by both tine and imprisonment in the jail.
8ect. "2. Whoever fraudulently and deceitfully entices or takes away
an unmarried woman, of a chaste life and conversation, from her father's
house, or wherever else she may be found, for the ]>ur])ose of prostitution at
a house of ill fame, assignation, or elsewliere, and whoever aids and assists
in such abduction for such purpose, shall be punished by imprisonment
in the state ])rison not exceeding three years, or in the common jail not
exceeding one year, or by fine not exceeding one thousand dollars, or by
both fine and imprisonment in the jail. But no prosecution shall be
commenced after two years from the commission of the ofience.
Sect. 3. Whoever commits adultery shall be punished by imprison-
ment in the state prison not exceeding three years, or in the jail not
exceeding two years ; or by fine not exceeding five hundred dollars ; and
when the crime is committed between a married M'oman and a man who
is unmarried, the man shall be deemed guilty of adulter3\
Sect. 4. Whoever, having a former husband or wife living, marries
auotlier person, or continues to eohal)it Avith such second husband or
wife in this state, shall (exce])t in tlie cases mentioned in the following
section) be deemed guilty of polygamy, and be punished by imprison-
ment in the state prison not exceeding five years, or in the jail not
exceeding three years, or by fine not exceeding ^ve hundred dollars.
69 103
Abduction of
an unmarried
frmale under
sixteen for the
purpose of mar-
rin<:,'e.
I(s5-J, 254.
7 Gray, 484.
of unmarried
women, &c.,for
the purpose of
prostitution.
Limitation.
1845, 216, §§1,2.
12 Met. 94.
Adultery.
K. S. 130, § 1.
21 Pick. 509.
2 Met. 190.
5 Met. 535.
2 Cush. 551.
0 Cush. 78.
Polyg:amy.
K. S. 1.30, § 2.
1 Pick. 136.
.S Pick. 4S3.
7 Met. 472.
2 Cush. 653.
818
OFFENCES AGAINST CHASTITY, MORALITY, AND DECENCY. [ChAP. 165.
Excepted cases.
K. S. 130, § 3.
Lewd and las-
civious cohabi-
tation, aud open
and gross lewd-
ness.
E. S. 130, § 4.
1 Mass. S.
10 Mass. 133.
Incest.
K. S. 130, § 13.
Fornication.
K. S. 130, § .5.
I8ia, 13;;, § 3.
Unlawful at-
tempts, &c., to
procure mis-
carriage.
1845, 27.
Advertising,
Ac, notices,
&c., of means to
procure abor-
tion.
1847, 83.
Concealment by
mother of death
of bastard child.
K. S. 130, § «.
Offence may be
inserted iu in-
dictment for
murder.
K. S. 130, § 7.
Keeping house
of ill fame.
K. S. 130, § 8.
1849, 8t.
2 Gray,.35ri.
Lease of house
80 kept, void at
Sect. .5. The provision of the preceding section shall not extend to
any person whose husbaiul or wife has been continually remaining beyond
sea, or has voluntarily willidrawn from the otlier, and remained absent
for the space of seven years together, tlie party manying again not
knowing the other to be living within tliat time, nor to any person
legally divorced from the bonds of matrimony, aud not the guilty cause
of such divorce.
Sect. G. If any man and woman, not being married to each other,
lewdly and lasciviously associate and coli.ibit together, or if any man or
woman, married or unmarried, is guilty of open and gross lewdness and
lascivious behavior, every sucli person shall be punished by imprisonment
in the state prison not exceeding three years, or in the jail not exceed-
ing two years, or by fine not exceeding three luindred dollars.
Sect. 7. Persons within tlie degrees of consanguinity within which
marriages are prohibited or declared by law to be incestuous and void,
who intermarry, or commit ailultery or fornication with each other, shall
be punished by imprisonment in tlie state prison not exceeding twenty
years, or in the jail not exceeding three years.
Sect. 8. If a man commits fornication with a single woman, each of
them shall be punished by imprisonment in tlie jail not exceeding three
months, or .by line not exceeding thirty dollars.
Sect. 9. Whoever, with intent to ]irocure miscarriage of any woman,
unlawfully administers to her, or advises or prescribes for her, or causes
to be t.iken Ijy her, any poison, drug, meilicine, or other noxious thing,
or unlawfully uses any instrument or other means whatever with the like
intent, or with like intent aids or assists therein, shall, if the woman dies
in consequence thereof, ho imprisoned in the state prison not exceeding
twenty, nor less than five, years, and if tlie woman does not die in con-
sequence thereof, shall be j)unished by imprisonment in the st.ate prison
not exceeding seven years, nor less than one year, and by fine not
exceeding two thousand dollars.
Sect. 10. Whoever knowingly advertises, prints, publishes, distrib-
utes, or circulates, or knowingly causes to be advertised, printed, pub-
lished, distributed, or circulated, any pamphlet, printed pajier, book,
newspa]ier, notice, advertisement, or reference, containing words or lan-
guage giving or conveying any notice, hint, or reference, to any person,
or to the name of any ))erson, real or fictitious, from whom, or to any
place, house, sliop, or office, where, any jioison, drug, mixture, prepara-
tion, medicine, or noxious thing, or any instrument or means whatever,
or any advice, direction, information, or knowledge, may be obtained for
the purpose of causing or procuring the miscarriage of any woman preg-
nant with child, shall be punished by imprisonment in the state ]irison
or jail not exceeding three years, or by tine not exceeding one tliousand
dollars.
Sect. 11. If a woman conceals the death of any issue of her body,
which, if born alive, would be a bastard, so that it may not be known
whether such issue was. born alive or not, or whetlier it was not mur-
dered, she shall be punished by fine not exceeding one hundred dollars,
or by imprisonment in the jail not exceeding one year.
Sect. I'J. Any woman indicted for the murder of her infant bastard
child, may also be charged in the same indictment with the offence
described in the preceding section; and if on the trial the jury acquit
her of the cliarge of murder, they may find her guilty of the conceal-
ment.
Sect. 13. Whoever keeps a house of ill fame, resorted to for the
purpose of prostitution or lewdness, shall be jjunished by imprisonment
in the jail not exceeding two years.
Sect. 14. When the lessee of a dwelliug-house is convicted of the
offence mentioned in the preceding section, the lease or contract for
i
Chap. 165.] offences against chastity, morality, and decency. 819
letting the house shall, .it the option of the lessor, become void ; and option of lessor,
the lessor shall have the like remedy to recover the possession as against fKck-^ao^ *'
a tenant holding over after the expiration of his term.
Sect. 1.5. Whoever imports, jjrints, publishes, sells, or distributes, importing, seii-
any book, pamphlet, ballad, printed paper, or other thing, containing J^^'' ^^'^^^^1^^^='
obscene language, or any obscene prints, pictures, figures, or descrijj- books or prints,
tions, manifestly tending to the corruption of the morals of youth; or i^'s. 130, § lo.
introduces into any family, school, or jilace of education, or buys, pro- i? Mass. .-no.
cures, receives, or has in his possession, any such book, pamphlet, ballad,
printed ])aper, or other thing, either for the purpose of sale, exhibition,
loan, or circulation, or with intent to introduce the same into any fam-
ily, school, or Jilace of education ; shall be punished by imprisonment
in the state prison not exceeding five years, or by imprisonment in
the jail not exceeding two years, and fine not exceeding one thousand
dollai-s.
Sect. 16. Any police court or justice of the peace may issue a war- Police court,
rant for the purpose of searching for any oVjscene books, pamphlets, bal- scare^'w.-irrimt
lads, printed pa]iers, or other things, mentioned in the preceding sec- J"" '""^'j ''°°'"'
tion, in the manner provided in chapter one hundred and seventy; and to be destroyed.
all such things found by an officer in executing a search warrant, or K-S. 130, §11.
produced or brought into court, shall be safely kept so long as is neces-
sary for the puqiose of being used as evidence in any case, and as soon
as may be afterwards shall be destroyed by order of the court before
whom the same is brought.
Sect. 17. When a ])erson is convicted under either of the two pre- naif of fine to
ceding sections, and sentenced to pay a fine, there shall be paid to the pcutor* *° ""^"^
person who informed and prosecuted such offender to conviction, one- R- s. 130, § 12.
half of the amount of the fine actually paid by such convict. -> -^ s •
Sect. 18. Whoever commits the abominable .Mnd detestable crime crime against
against nature, either with mankind, or with any beast, shall be pun- y"'s"i3(, 514
ished by imprisonment in the state prison not exceeding twenty years.
Sect. 19. Whoever wilfully blasphemes the holy name of God, by Blasphemy,
denying, cm-sing, or contumeliously rejiroaching God, his creation, gov- 2o'|i(£*u^*''
eminent, or final judging of the world, or by cursing or contumeliously
reproaching Jesus Christ, or the Holy Ghost, or by cursing or contume-
liously reproaching the holy word of God, contained in the holy scrip-
tui-es, or exposing them to contempt and ridicule, shall be punished by
imprisonment in the state prison not exceeding two years, or in the jail
not exceeding one year, or by fine not exceeding three hundred dollars,
and may also be bound to good behavior.
Sect. 20. Whoever, having arrived at the age of discretion, pro- Profane cursing
fanely curses or swears, shall, on conviction before any justice of the 5{"g^Y3o,'§w'.
]ieace or jiolice court, be punished by fine not exceeding five dollars nor
less than one dollar ; but no prosecution shall be commenced after
twenty days from the conimissi(3n of the offence.
Sect. 21. W^hoever wilfully inteiTupts or disturbs any assembly Disturbing reii-
of people met for the worship of God shall be punished by impris- I{°sfi^Jo,7i7^'
onmcnt in the jail not exceeding thirty days, or by fine not exceeding 2 Mass. 103.
fifty dollars.
Sect. 22. Whoever, during the time of holding any camp or field Gaming, &c.,
meeting for religious pui-jioses, and within one mile of the place of hold- piace"if a^id °*^
ing such meeting, hawks or peddles goods, wares, merchandise, or, with- meeting for
out permission from the authorities having charge of such meeting, poses?"^ ^"''
estalilishes any tent or booth, for vending provisions or refreshments, or 183*> i*'.
practises or engages in gaming or horse-racing, or exhibits or offers to
exhibit, shows or plays, shall forfeit for each offence a sum not exceed-
ing twenty dollars : jyrovided, that a person having his regular and usual
place of business within such limits, is not hereby requii-ed to suspend
his business.
820
OFFENCES AGAINST CHASTITY, MORALITY, AND DECENCY. [ChAP. 165.
Disturbance of
schools and
public meet-
ings.
1849, 59.
1 Gray, 476.
of funerals.
1851, 193.
1 Gray, 4S0.
Drunkenness.
K. S. 130, § 18.
second con-
viction.
1850, 2G3
in the city of
Boston.
1855, 53.
Eog;ue8, vaga-
bonds, &c.
K. S. 143, § 5.
1837, 217.
1856, 186.
8 Met. 613.
5 Gmy, 85.
See §§31, .34.
Ch. 178, §§ 17,
58.
may bo pun-
ished by fine,
and sentenced
conditionally.
K. S. 143, § (i
1837, 157.
1851, 340.
8 Met. 513.
Master of
house of indus-
try, &c., to re-
ceive persons
committed, &c.
R. S. 87, § 41.
R. S. 143, § 6.
1851, 346.
Sect. 23. Whoever wilfully interrupts or disturbs any school or
other as.<einbly of peojile met for a lawful purpose, shall be iiunished by
imprisonment in the jail not exceeding thirty days, or by line not exceed-
ing fifty dollars.
Sect. 24. Whoever wilfully interrupts, or by fast driving or other-
wise in any way disturbs, a funeral assembly or procession, sliall be pun-
islied by imprisonment in the jail not exceeding thirty days, or by line
not exceeding fifty dollars.
Sect. 25. Whoever is guilty of drunkenness by the voluntary use
of intoxicating liquor shall for the first offence be punished by fine
not exceeding five dollars, and for any lilie offence committed after the
first conviction, by fine not exceeding ten dollars, or by imprisonment
in the house of correction not exceeding three months ; but no prose-
cution shall be commenced after si.x months from the commission of the
offence.
Sect. 26. Whoever has become liable to imprisonment in the liouse
of correction upon a second conviction for the crime of drunkenness,
may be committed to the workhouse, if any, in the town or city where
the offence was committed, instead of the house of correction.
Sect. 27. A person convicted of the crime of drunkenness in the
city of Boston, may be committed, in case of non-payment of the fine,
to the house of industry instead of the jail or house of correction.
The term of imprisonment and the manner of pardon and discharge
sliall in all respects be the same as are provided in cases where such
persons are held in prison in the county of Suffolk for non-payment of
fine and costs.
Sect. 28. Rogues and vagabonds, idle and dissolute persons who go
about begging, persons who use any juggling or unlawful games or
plays, common pipers and fiddlers, stubborn children, runaways, com-
mon drunkards, common night walkers, pilferers, lewd, wanton, and
lascivious persons in speech or behavior, common railers and br.awlcrs,
persons who neglect tlieir calling or employment, misspend what they
earn and do not provide for tliemselves or for tlie suji]iort of their fam-
ilies, and .all other idle and disorderly persons, including therein those
persons who neglect all lawful business and habitually misspend tlieir
time by frequenting houses of ill fame, gaming houses, or ti])jiling shops,
may, upon conviction, be committed, for a term not exceeding six inontlis,
to tlie house of correction, or to the house of industry or workhouse
within the city or town where the conviction is had, or to the work-
house, if any there is, in the city or town in wliich the offender has a
legal settlement, if such town is within the county.
Sect. 29. When a person is convicted, by a justice of the peace or
police court, of any offence mentioned in the preceding section, he may,
instead of the puni.shment therein mentioned, be punished by fine not
exceeding twenty dollars, either with or without a condition that if the
same with the costs of prosecution is not paid within a time specified,
he shall be committed to the house of correction, house of industry, or
workhouse, as is provided in the preceding section ; wliicli conditional
sentence shall be carried into execution according to tlie provisions of
section seven of chapter one hundred and seventy-four.
Sect. 30. The master, keeper, director, or overseer, of a house of in-
dustry or workhouse to which any person is committed under the two
preceding section.s, sliall receive all persons so committed, set them to
work if they are able, and employ and govern them in the manner re-
quired by law and ]irescribed by the rules and orders establisiied for
that purjiose; and the city or town in which such house is situated may
recover tlie balance of the expense of the su]iport of any such person
over and above the amount of his labor, from the party thus sentenced,
or from any kindred, town, or city, liable by law for his sujijiort, if he is
I
Chap. 165.] offences against chastity, moralitt, and decency. 821
a paupor, in like mnnner as if he had been committed to the house of
correction for the same oftence.
Sect. 31. If any ])erson convicted under the provisions of section Party commit-
twenty-eig-ht appeals from the sentence, the commission of any like oftence unfor^cctfon
by him before judgment on tlie appeal, shall be deemed a breach of the twenty citjht
condition of the recognizance, if any was taken upon allowing the appeal, r/s. H3f§s.
Sect. 32. When a person is brought before a magistrate upon a Respondent
charge of any oftence mentioned in section twenty-eight, such magis- "larfrcd on
trate, or the court before which the cause mav be carried bv aiuieal, reeogTiizanee,
" ..1 T T , .1 * 1 , * 11 ; paying costs.
may in any stage oi the proceedings dn-ect the respondent or a])])ellaut b.s. h3, §9.
to be discharged, upon his entering into a recognizance with sntficient
sureties, in such sum as the magistrate or court directs, for his good be-
havior for a term not less than six months nor exceeding two years,
and j)aying the costs of prosecution or such jsart thereof .as the magis-
trate or court shall direct.
Sect. 33. A jierson found in a street, highway, or other public place. Disorderly pcr-
in the night time, committing any of the'oftences or disorders before n^^hutae!*^ '"
mentioned, may be apjirehonded by any sherift^ de]>uty-sherift", const.ablo, K. s. h3, §7.
or watchman, or by any other person by the order of auy magistrate or
either of said ofticcrs, without a written warrant, and kept in custody in
a convenient place, not more than twenty-four hours, Sundays excepted;
at or before the expiration of which time, he shall be brought before a
justice of the peace or police court, and proceeded against in the man-
ner directeil in the preceding section, or discharged, as such magistrate
shall determine.
Sect. 34. If a person discharged under the provisions of section Conviction of
seventeen of chapter one hundred and seventy-eight, is after\\-ards con- er^JJfter dis-'^"
victed of any oftence mentioned in section twentv-eiuht, committed charge on for-
iv ii /■ • ^- •.! • .1 'tji'" i ^ 1 nicr conviction.
alter tne lormcr convu^tion, either in the same or a ditterent county, he k. s. hs, § 13.
may be sentenced by the magistrate or court before whom the second
conviction is had, to hard labor in the house of correction, house of in-
dustry, or workhouse, for a term not exceeding one year.
Sect. 35. When a person is convicted as a common night walker, Ni?iit walking,
and it is alleged in the complaint, and proved at the trial, that the de- ,i|,n'. ™'"'"'"
feiidant has been previously twice convicted of the same oftence, such lf^f>f''',t,''sja
jiersoii may be sentenced to the house of correction, house of industry,
or workhouse, if any such is established in the town or city, for a term
not exceeding five years.
Sect. 36. If a sherift" depiity-sherifl^, coroner, or constable, takes the sherifr, &c.,
body of any deceased jierson, on mesne process or execution, he shall {jg^y™ " *^'^'"'
be punished by fine not exceeding five hundred dollai-s, or imprisonment K- s. h, § si.
in the jail not exceeding six months.
Sect. 37. Whoever not being authorized by the board of health, violation of
overseers of the poor, directors of a workhouse, selectmen, or mayor and r.'s'. «o;'§ 19.
aldermen, of any city or town, by the board of directors for public insti- j?^!;-'?- „.
tutions, or overseers of the poor of the city of Boston, wilfully digs up, ig pick! soi.
disinters, removes, or comeys away, any human liody, or the remains
thereof^ or knowingly aids in such disinterment, removal, or conveying
away, and wlioever is accessory thereto, either before or after the fact,
shall be punished by imprisonment in the state prison not exceeding
one year, or in the jail not exceeding two years, or by fine not exceeding
two thousand dollars.
Sect. 38. Whoever buys, sells, or has in his possession for the pur- Buying- or hav- ^
pose of buying or selling, or trafticking in, the dcail body of any human fortl™ purpose
being, shall be punished by fine of not less than fifty nor exceeding five of ^"le, Ac.
hundred dollars, or by imprisonment in the jail not less than three " • -"'Ss > •
months, nor exceeding three years.
Sect. 39. Whoever wilfully destroys, mutilates, defaces, injures, or injuring or dc-
removes, any tomb, monument, gravestone, or other structure, or thing, '^'""= ""^bs,
69*
822
OFFENCES AGAINST THE PUBLIC HEALTH. [ChAP. 166.
memorials of
the dead, &c.
B. S. 130, § ^0.
Making roads,
canais, &c.,
througll burial
grounds.
R. S. 24, §§ 59,
00.
E. S. 130, § 21.
Cruelty to ani-
mals.
B. S. 1-30, § 22.
placed or designed for a memorial of the dead, or any fence, railing,
curb, or otlier thing, intended for the jirotectiou or ornament of any
tomb, monument, gravestone, or other structure, before mentioned, or
of any enclosure for the burial of the dead, or wilfully destroys, muti-
lates, removes, cuts, breaks, or injures, any tree, shrub, or plant, ]ilaced
or being within any such enclosure, or wantonly or maliciously disturbs
the contents of a tomb or grave, shall be punished by fine not exceed-
ing five hundred dollars nor less than ten dollars, or by imprisonment
in the jail not exceeding one year.
Sect. 40. Whoever laj's out, opens, or makes, a highway or town
way, or constructs a railroad, turni)ike, or canal, or any other thing in
the nature of a public casement, over, through, in, or upon, any part
of such enclosure, being the property of a city, town, parish, religious
society, or of private proprietors, used or appropriated for the burial of
the dead, unless an authority for that purpose is specially granted by
law, or unless the consent of such city, town, parish, religious society,
or proprietors, respectively, is first obtained, shall be punished by fine
not exceeding two thousand dollars, or by imprisonment in the jail not
exceeding one year.
Sect. 41. Whoever cruelly beats or tortures any horse, ox, or other
animal, whether belonging to himself or another, shall be punished by
imprisonment in the jail not exceeding one year, or by fine not exceed-
ing one hundred dollars.
CHAPTEK 166.
OF OFFENCES AGAINST THE PUBLIC HEALTH.
Section
1. Selling corrupter unwholesome provisions
without notice.
2. Killing for sale or selling calves less than
four weeks old.
3. Adulterating food.
4. liquor, &c., with cocculus indiais, &c.
Section
5. Adulteration of drugs and medicines.
0. Wilfully corrupting springs, &c., or in-
juring aqueduct.
7. Persons selling arsenic, &c., to keep record,
&c. Purchasers who give false name, &c.
Selling corrupt
or unwhole-
some provisions
without notice.
R. S. 131, § 1.
Killing for s.Tle
or selling
calves less than
four weeks old.
1855, 239.
Adulterating
food.
E. S. 131, § 2.
liquor used
for drink, with
cocculus indi'
CliSy &c.
1855,356.
Sectiox 1. Whoever knowingly sells any kind of diseased, corrupted,
or unwholesome provisions, whether for meat or drink, without making
the same fully known to the buyer, shall be punished by imprisonment
in the jail not exceeding six months, or by tine not exceeding two hun-
dred dollars.
Sect. 2. Whoever kills or causes to be killed, for the puii"iose of sale,
any calf less than four weeks old, or knowingly sells, or has in his pos-
session with intent to sell, the meat of any calf killed when less than
four weeks old, shall be punished by fine not exceeding two hundred
dollars.
Sect. 3. Whoever fraudulently adulterates, for the purpose of sale,
bread or any other substance intended for food, with any suljstance in-
jurious to health, shall be punished by imprisonment in the jail not
exceeding one year, or by fine not exceeding three hundred dollars;
and the articles so adulterated shall be forfeited, and destroyed under
the direction of the court.
Sect. 4. Whoever adulterates, for the purpose of sale, any liquor
used or intended for drink, with cocculus indiciis, vitriol, grains of para-
dise, opium, alum, caj)sicum, copperas, laurel water, logwood, Brazil
wood, cochineal, sugar of lead, or any other substance which is poisonous
i
Chap. 167.] offences against public policy.
823
or injurious to he.alth ; and whoever knowingly sells any such liquor so
adulterated, shall be punished by imprisonment in the state prison not
exceeding three years ; and the articles so adulterated shall be forfeited.
Sect. 5. Whoever fraudulently adulterates, for the pui-pose of sale, Adulteration
any drug or medicine, or sells any fraudulently adulterated drug or ^"ic^es!"'
medicine, knowing the same to be adulterated, sliall be punished by issa, 3W, §i.
imprisonment in the jail not exceeding one year, or by fine not exceed-
ing four hundred dollars ; and such adulterated dnigs and medicines
shall be forfeited, and destroyed under the direction of the court.
Sect. 6. Whoever wilfully or maliciously defiles, corrupts, or makes wilfully cor-
impure, any spring or other source of water or reservoir, or destroys or ^r*„"8_ .tc.
injures any pipe, conductor of water, or other property, pertaining to orinjSriug
an aqueduct, or aids or abets in any such trespass, shall be punished by iS,(5i!§'2.
fine not exceeding one thousand dollars, or by imprisonment in the jail
not exceeding one year.
Sect. 7. If an apothecary or other person sells any arsenic, strych- Persons selling
nine, corrosive sublimate, or ])russic acid, without the written prescrip- keep"r'e'cord,' '"
tion of a physician, he shall keep a record of the date of such sale, the *'^-
article, the amount thereof sold, and the person or persons to whom who give false
delivered ; and for each neglect he shall forfeit a sum not exceeding fifty 5sSr''i^%« j j
dollars. Whoever purchases deadly poisons, as aforesaid, and gives a
fiilse or fictitious name to the apothecary or other person, shall be pun-
ished by fine not exceeding fifty dollars.
CHAPTER 167
OF OFFENCES AGAINST PUBLIC POLICY.
Section
1. Setting up or promoting illegal lotteries,
gifts, Ac.
2. Permitting lotteries, &c,, to be set up, &c.,
iu a house, &c.
3. Selling lottery tickets, shares, &c., or aid-
ing therein.
4. Seeond conviction.
5. vVdvertisiug lottery tickets for sale. Ex-
hibiting representation of lottery, &c.
6. Making or selling tickets iu a fictitious lot-
tery.
Section
7. Defendant to prove genuineness, &c., of
tickets sold by him.
8. Prizes, .tc, forfeited to the state.
9. Racing, &c., declared unlawful. Penalty.
10. Location and regulation of race grounds
and trotting parks. Selectmen, &c., may
alter terms.
t'nlawful race grounds deemed nuisances.
Penalty.
11.
Section 1. Whoever sets up or promotes any lottery for money; or Setting up or
by way of lottery disjioses of any ])ro])erty of value, real or personal ; or |.™iitteriesf*^'
under the pretext of a sale, gitl, or delivery, of any other property, or gifts. &f^-
any right, privilege, or thing, whatever, disposes of, or offers or attempts i85t>,'i2i7§ i.'
to dispose of, any real or person.al property, with an intent to make the | j/jj^j^ig 330
disposal of such real or personal property dependent upon or connected a Gray, 09.
with any chance by lot, dice, numbers, game, hazard, or other gambling
device, whereby such chance or device is m.ade an additional inducement
to the disposal or sale of said property ; and whoever ai<ls either by print-
ing or writing, or is in any way concerned, in the setting up, managing,
or drawing, of any such lottery, or in such disposal, or oflier, or attempt,
to disjiose of projjcrty by any such chance or device ; shall for each
offence be punished by fine not exceeding two thousand dollars.
Sect. 2. Whoever in a house, shop, or building, owned or occupied permitting lot-
by him or under his control, knowingly permits the setting up, managing, t^™V *"■' *°
or drawing, of such lottery, or such disposal or attempt to dispose of in a honse, &i.
824
OFFENCES AGAINST PUBLIC POLICY. [ChAP. 167.
K. S. 132, § 1.
1858, 121, § 1.
2 Gray, 09.
Selling lottery
tickets, shares,
&c., or aiding
therein.
R. S. 132, § 2.
1856, 121, § 1.
2 Met. 329, 3.38.
Second convic-
tion.
R. S. 1.32, § 3.
1856, 121, § 1.
Advertising lot-
tery ticltets for
sale.
Exhibiting rep-
resentation of
lottery, &c.
E. S. 1.33, § 4.
S rick. 41, 42.
Making or sell-
ing tickets in a
fictitious lot-
tery.
IS. S. 132, § 5.
Defendant to
prove genuine-
ness, &c., of
tickets sold by
him.
K. S. 132, § C.
Prizes, iSic, for-
feited to the
state.
R. S. 132, § 8.
1856, 121, §§1,2.
property, or the sale of .i lottery ticket, or slinre of a ticket, or any other
■writing, certificate, bill, token, or other ilevice, purporting or intended
to entitle the holder, bearer, or any other person, to a prize, or to a share
of or interest in a prize, to be draAvn in a lottery, or in snch disposal of
property ; and whoever knowingly siitFers money or other property to
be raffled for in such house, shop, or building, or to be won there by
throwing or using dice, or by any other game of chance; shall for each
ofl'ence be punished by fine not exceeding two thousand dollars.
Sect. 3. Whoever sells, either for himself or another person, or
offers for sale, or has in his possession with intent to sell or otfer for sale,
or to exchange or negotiate, or in any wise aids or assists in the selling,
negotiating, or disjjosing of, a ticket in any such lottery, or a share of a
ticket, or any such writing, certificate, bill, token, or other device, or any
share or right in such disposal or offer, as is mentioned in section one,
shall for each offence be punished by fine not exceeding two thousand
dollars.
Sect. 4. Whoever, after being convicted of any offence mentioned in
either of the preceding sections, commits the like offence, or any other
of the offences therein mentioned, shall, in addition to the fine before
provided therefor, be punished by imprisonment in the house of correc-
tion not exceeding one year.
Sect. 5. Whoever advertises any lottery ticket, or any share in such
ticket, for sale, either himself or by another person, or sets up or exhibits,
or devises or makes tor the purpose of being set up or exhiliited, any
sign, symbol, or emblematic or other representation, of a lottery or the
drawing thereof, in any way indicating where a lottery ticket or a share
thereof! or any such writing, certificate, bill, token, or other device, be-
fore mentioned, may be purchased or obtained, or in any way invites or
entices, or attempts to invite or entice, any other pereon to purchase or
receive the same, .shall for each offence be punished by fine not exceed-
ing one hundred dollars.
Se(::t. 6. Whoever makes or sells, or has in his possession with intent
to sell, exchange, or negotiate ; or by iirinting, writing, or otherwise,
assists in making or selling, or in attempting to sell, exchange, or nego-
tiate a false or fictitious lottery ticket, or any share thereof, or any
writing, certificate, bill, token, or other device, before mentioned, or any
ticket, or share thereof, in a fictitious or pretended lottery, knowing the
same to be false or fictitious ; or receives any money or other thing of
value for any such ticket or share of a ticket, writing, certificate, bill,
token, or other device, puqiorting that the owner, bearer, or holder,
thereof, shall be entitled to receive any prize, or share of a ])rize, or any
other thing of value, that may be drawn in a lottery, knowing the same
to be false or fictitious ; .shall for each offence be punished by imprison-
ment in the state jirison not exceeding three years.
Sect. 7. Upon the trial of an indictment for either of the offences
mentioned in the preceding section, any ticket or share of a ticket, or
any other writing or thing Ijefore mentioned, which the defendant has
sold or offered for sale, or tor wliich he has received a valuable consider-
ation, shall be deemed to be false, spurious, or fictitious, unless snch
defendant ]jroves that the s.aine was true and genuine, duly issued by
the authority of some legislature within the United States, that such
lottery was existing and undrawn, and that such ticket or share thereof,
or other writing or thing before mentioned, was issued by lawful author-
ity, and binding upon the persons who issued the same.
Sect. 8. All sums of money and every other valuable thing drawn
as a prize or as a share of a ])rize in any lottery, and all jirojierty dis-
posed of or offered to be dis])osed of by any chance or device under
the pretext mentioned in section one, by any jierson being an inhabitant
or resident within tliis state, and all sums of money or other things of
Chap. 1G8.] felonies, accessories, abettors, &c.
825
value received by any such person, by reason of his beinc; the owner or
holder of any ticket or share of a ticket in a lottery or iiretencled lot-
tery, or of a share or right in any such scheme of chance or such device,
contrary to the provisions of this chapter, shall be forfeited, and may
be recovered by an information filed, or by an action for money had
and received brought by the attorney-general or any district-attor- ♦
ney or other prosecuting officer in the name and on behalf of the com-
monwealth.
Sect. 9. All racing, running, trotting, or pacing, of any horse or Racing, &c., de-
other aiiiinal of the horse kind, for a bet or wager of money or other fi^'^'pemat^'.
valuable tiling, or for a purse or stake, made within this state, is declared isie, 2oo,§§ 1,2.
to be unlawful ; and all persons engaged in such racing, running, trot-
ting, or jiacing, for any such bet or wager, purse or stake, and all per-
sons aiding or abetting the same, shall be punished by fine not exceed-
ing one thousand dollars, or by imprisonment in the jail not exceeding
one year, or bj' both such fine and imprisonment.
Sect. 10. No land within any town or city shall be laid out or used Locution and
as a race ground or trotting jiai'k, for the admission to which of persons JafJ.i'rmmds
or pro])erty, any money or other valuable consideration shall be directly and trottiu"
or indirectly taken or required, withoiit the previous consent of and nicn, itc!', may
location by the selectmen or mayor and aldennen ; who may regulate J^" Jq™/'!
and alter the terms and conditions under which the same shall be laid
out, used, or continued in use ; and discontinue the same when in their
judgment the public good so requires; and no land shall be used for
any of the purposes mentioned in the preceding section.
Sect. 11. Every i-ace gro\ind or trotting park established, laid out, Unia^vfui race
used, or continued in use, contrary to the provisions of this chajiter, is fecmed^nui-
declared a common nuisance, anil shall be abated as such ; and all per- "nnces. Pen-
sons owning, keeping, using, or permitting to be used, such race ground isse, 102, §§ 2, 3.
or trotting j)ark, or aiding or abetting therein, shall be punished in the
manner provided in section nine.
CHAPTER 168.
OF FELONIES, ACCESSORIES, ABETTORS, AND ATTEMPTS TO COMMIT
CRIMES.
Section
1. I'Viony.
2. Indictments, &c., for, not to be quashed,
Ac.
3. Persons accessory before fact, punished as
principals.
Sectios
4. Accessories before fact, when and how
tried.
5. where to be tried.
6. Accessories after fact, who shall be deemed.
7. how, wlien, and where, tried.
8. Attempts to commit otfeuces.
Section 1. Any crime punishable by death or imprisonment in the f'''.'pny-
state prison is a felony ; and no other crime shall be so considered. .ujr'ayVws.'
Sect. 2. It shall not be necessary to allege in any indictment or indictments,
complaint th.at the offence charged is a felonv, or felonious, or done *^''' '°'',' ""V"
/v , ' . , 1 ,, . T ^ 1 . 1 IT bequa8ned,&c.
leloniously ; nor shall any indictment or comjilaint be quasnea or 1862, 37, § 3.
deemed invalid hj reason of the omission of the words "felony," ^^*'^'
" felonious," or " feloniously."
Sect. 3. Whoever aids in the commission of a felony, or is acces- Persons acces-
sory thereto before the fact, by counselling, hiring, or otherwise procur- puSsSas*^*"*
ing, such felony to be committed, shall be punished in the manner p'''o'^'p/''''5
prescribed for the punishment of the principal felon. 3 Gray, «i, 448.
104
826
ACCESSORIES, &c., AND ATTEMPTS TO COMMIT OFFENCES. [CuAP. 168.
Accessories be
fore fact, wheu
and how tried.
E. S. i:B, § -'.
10 Mass. 423.
3 Gray, 448.
where to be
tried.
K. S. 133, § 3.
Accessories
after fact who
shall be
deemed.
K. S. 133, § 4.
how, when,
and where,
tried.
K. S. 133, § 5.
Attempts to
commit of-
fences.
R. S. 133, § 12
10 Met. i-ii.
3 Cush. 529.
5 Cush. 363.
Sect. 4. Whoever counsels, hires, or otherwise procures, a felony to
be committed, m;iy be indicted and convicted as an accessory before the
flict, either with the principal felon, or after his conviction ; or may be
indicted and convicted of a substantive felony, whether the jirincipal
felon has or has not been convicted, or is or is not amenable to justice ;
and in the last-mentioned case may be j)unished in the same manner as
if convicted of being an accessory before the fact.
Sect. 5. A person charged with the oftence mentioned in the pre-
ceding section may be indicted, tried, and punished, in the same court
and county where the principal felon might be indicted and tried,
although the oftence of counselling, hiring, or procuring, the commis-
sion of such felony is committed on the high seas, or on land either
within or without the limits of this state.
Sect. 6. Whoever, not standing in the relation of husband or wife,
parent or grandparent, child or grandchild, brotlier or sister, by con-
sanguinity or aftinit)', to the oflender, after the commis.sion of a felony,
harbors, conceals, maintain.s, or assists, the principal felon or accessory
before the fact, or gives such oftender any other aid, knowing that he
has committed a felony, or been accessory thereto belbre the fact, with
intent that he shall avoid or escape detection, arrest, trial, or punish-
ment, shall be deemed an accessory after the fact, and be punished by
imprisonment in the state prison not exceeding seven years, or in the
jail not exceeding three years, or by fine not exceeding one thousand
dollars.
Sect. 7. Whoever becomes an accessory to a felony after the fact
may be indicted, convicted, and punished, (whether the princijn.al felon
has or has not been previously convicted, or is or is not amen.able to
justice,) by any court having jurisdiction to try the principal felon, and
either in the county where such person became an accessory, or in the
county where the jirincipal felony was committed.
Sect. 8. Whoever attempts to commit an oftence prohibited b}' law,
and in such attemjit does any act towards the commission of such oftence,
but foils in the peqietration, or is intercepted or prevented in the exe-
cution, of the same, where no express provision is made by law for the
punishment of such attempt, shall be punished as follows: —
First. If the otfcnce attempted to be committed is punishable with
death, the person convicted of such attempt shall be punished by
imprisonment in the state prison not exceeding ten years :
Second. If the oftence so attempted to be committed is punishable
by imprisonment in the state prison for life, or for five years or more,
the person convicted of such attempt shall be punished by imprisonment
in the state prison not exceeding five years, or in the jail not exceeding
one year:
Third. If the oftence attempted to be committed is punishable by
imprisonment in the state prison for a term less than five years, or by
imprisonment in the jail, or by fine, the oftender convicted of such
attempt shall be punisheil by imprisonment in the jail not exceeding
one year, or by fine not exceeding three hundred dollars ; but in no case
shall the punishment by imprisonment exceed one-half of the greatest
punishment which might have been inflicted if the oftence attempted
had been committed.
Chap. 169.] proceedings to prevent commission op crimes.
827
TITLE II
OF PROCEEDmOS IN CRIMIN.VL CASES.
Chapter 169. — Of Proceedings to prevent the Commission of Crimes.
Chapter 170. — Of Search Warrants, Rewards, Arrest, Examination, Commitment»
and Bail.
Chapteu 171. — Of Indictments, Prosecutions, and Proceedings before Trieils.
CiLiPTER 172. — Of Trials.
Chapter 173. — Of Appeals, New Trials, and Reports.
Chapter 174. — Of Judgment and Execution.
Chapter 175. — Of Inquests on Dead Bodies.
CttiPTER 176. — Of Fines, Forfeitures, and Costs.
Chapter 177. — Of Fugitives from Justice and Pardons.
CHAPTER 169,
OF PROCEEDINGS TO PREVENT THE COMMISSION OF CRIMES.
Skctios
1. GfficcrB authorized to keep the peace.
2. CompLiiut, how made.
3. Arrest.
4. Trial. Recof;:i)izancc to keep the pojvo.
5. Proceediuge upon an order to recognize, &c.
6. Complainant, when to pay costs.
7. Payment of costs in other cases.
8. Ai)peal.
9. Witnesses to recognize.
10. Proceedings on appeal.
11. Recognizance, when to remain In force.
Section
12. Person committed for not recognizing, how
discharged.
13. Recognizances to be transmitted to court.
Suit thereon.
14. when to be required on view of court or
magistrate.
15. Persons who go armed may be required to
find sureties for the peace, &e,
16. Court may remit part of penalty.
17. Surety may surrender his principal, who
may recognize anew.
Section 1. The justices of the supreme judicial court, superior court, officers author-
and police courts, in vacation or in open court, and justices of the peace, jf^^j.*" '"^'^p *''®
may cause to be kept all laws made for the jircservation of the public k. s.'i.'!4, § i.
peace; and in the execution of tliat power may require persons to give sec'§i4!'
security to keep the peace, or for their good behavior, or both, as pro-
vided in this chapter.
Sect. 2. Wlien complaint is made to any such magistrate, that a complaint, how
person has threatened to commit an offence against the person or prop- ^''"s'^'igj 52
erty of another, the magistrate .shall examine on oath the complainant
and any witnesses who may be produced, reduce the complaint to writ-
ing, and cause it to be sub.scribed by the comjilainant.
Sect. 3. If upon examination it apjiears that there is just cause to Arrest.
fear that such offence may be committed, the magistrate shall issue a ^'' ®' '''*' ^ ^'
warrant under his hand, reciting the substance of the com])laint, and
requiring the officer to whom it is directed forthwith to apjirehend the
person comjilained of, and bring him before such magistrate or some
other magistrate or court having jurisdiction of the cause.
Sect. 4. When the party complained of is brought before the court T.riai. Recog-
or magistrate, he shall be heard in his defence, and may be required to the"pme? '^'''^
828
PROCEEDINGS TO PREVENT COMMISSION OP CRIMES. [ChAP. 169.
E. S. 134, § 4.
2 B. & A. 278.
4 Mass. 49?.
8 ila.aa. rs.
Proceedings
upon Jill order
to recoguizo,
Ac.
K. S. 134,§§5,6.
Complaiuant,
wlieii to p.iy
costs.
E. S. 134, § 7.
Payment of
costs iu other
cases.
E. S. 134, § 8.
Appeal.
E. S. 134, § 9.
1832, 14.
1859, 190.
Witnesses to
recoijuize.
E. S. 194, § 10.
Proceedings
on appeal.
E. S. 134, § 11.
Eecogtiizance,
when to remain
in force.
E. S. 134, § 12.
Person commit-
ted for not rec-
ognizing, Iiow
dlsdiarged.
E. S. 134, § 13.
Eecognizances
to be transmit-
ted to court.
Suit tiiereon.
E. .S. 134, § 14.
1832, 14.
1859, 190.
when to be re-
quired on view
of eourt or
magistrate.
);. S. 134, § 15.
enter into a recognizance with sufficient sureties in sucli sum as the
court or magistrate directs, to keep the peace towards all the people
of this commonwealth, and especially towards the person requiring
such security, for such term, not exceeding six months, as the court or
magistrate may order ; but he shall not be bound over to the next court,
unless he is also charged with some other ofleuce for which he ought to
be held to answer at such court.
Sect. 5. If the person so ordered to recognize com])lies with the
order, he shall be discharged ; but if he refuses or neglects, the court or
magistrate shall commit him to the jail, house of correction, or house of
industry, during the period for which he was required to give security,
or until he so recognizes, stating in the warrant the cause of commit-
ment, with the sum and time for which security was required.
Sect. 6. If upon examination it does not appear that there is just
cause to fear that such offence will be committed by the party com-
plained of, he shall be forthwith discharged; and if the magistrate deems
the complaint unfounded, frivolous, or malicious, he may order the com-
plainant to pay the costs of prosecution, who shall thereupon be answer-
able to the magistrate and the officer for their fees, as for his own debt.
Sect. 7. When no order respecting the costs is made by the court
or magistrate, they shall be allowed and jiald in the same manner as
costs before justices in criminal prosecutions; but in all cases wliere a
person is required to give security to keep the peace, or for his good
behavior, the court or magistrate may further order, that the costs of
prosecution, or any part thereof, shall be paid by such person, who
shall stand committed until the costs are paid or he is othervdse legally
discharged.
Sect. 8. Whoever is aggrieved by the order of a justice of the peace
or poUce court, requiring hiin to recognize as aforesaid, may on giving
the security required appeal to the superior court next to be held in the
same county.
Sect. 9. The court or magistrate shall require such witnesses as may
be necessary to support the complaint, to recognize for then- appearance
at the court appealed to.
Sect. 10. The court before which the appeal is prosecuted may
affirm the order or discharge the a]ipellant, or may require him to enter
into a new recognizance with sufficient sureties in such sum and for
such time as the court deems proper, and may make such order in re-
lation to the costs of prosecution as m.ay be deemed just and reasonable.
Sect. 11. If the appellant fails to prosecute his appeal, his recog-
nizance shall remain in full force and effect as to any breach of the con-
dition, without an affirmation of the judgment or order of the court or
magistrate, and shall also stand as a security for any costs which the
court apjiealed to orders to be paid by the appellant.
Sect. 1^. A person committed for not finding sureties or refusing
to recognize as required by the court or magistrate, may be discharged
by any judge or justice of the peace, on giving such security as ^as
required.
Sect. 13. Every recognizance taken pursuant to the foregoing jiro-
visions shall be transmitted by the magistrate to the su])eii(u- court for
the county on or before the tirst day of the next term, and shall be
there filed of record by the clerk; and upon a breach of the condition a
suit shall be commenced thereon by the district-attorney.
Sect. 14. Whoever in the presence of any magistrate mentioned in
section one, or before any court of record, makes an affi-.ay, or threatens
to kill or beat another, or to commit any Adolence or outrage against his
person or proiserty, and whoever in the presence of such court or magis-
trate contends with hot and angry words, to the disturbance of the
peace, may be ordered, without process or any other proof, to recognize
Ci/aP. 170.] SEARCH WARRANTS, REWARDS, ARREST, EXAMINATION, &c.
829
for keeping the peace or being of good behavior for a terra not ex-
ceeding three months, and in case of refusal may be committed as before
directed.
Sect. 15. Whoever goes armed with a dirk, dngger, sword, pistol,
or other oftensive and dangerous weapon, without reasonable cause to
fear an assault or other injury, or violence to his person, or to his family
or property, may on complaint of any person having reasonable cause
to fear an injury, or breach of the peace, be required to find sureties for
keeping the peace for a term not exceeding six months, with the right
of appeal as before ])rovided.
Sect. 16. When, upon a suit brought on such u (.ognizance, the pen-
alty thereof is adjudgc'd forfeited, the court may, on the petition of any
defendant, remit such portion of it as the circumstances of the case
render just and reasonable.
Sect. 17. A surety in a recognizance to keep the peace, or for good
behavior, or both, shall have the same authority and right to take and
surrender his principal, as if he had been bail for him in a civil cause;
and upon such surrender shall be discharged and exempt from all lia-
bility for any act of the principal subsequent to such suiTcnder, which
would be a breach of the condition of the recognizance. The person so
surrendered may recognize anew with sufficient sureties before any jus-
tice of the peace for the residue of the term, and shall thereupon be
discharcred.
Persons who <j;o
armed may be
required to tiiid
suretiep for the
peace, &c.
K. S. 143, § 1(5.
Court may re-
mit part of pen-
alty.
It. S. 134, § 17.
7 Mass. 397.
Surety may
surrender his
principal, who
may recognize
anew.
R. S. 134, § 18,
CHAPTER 170.
OF SEAKCH "WARRANTS, REWARDS, ARREST, EXAMINATION,
COMMITMENT, AND BAIL.
search warraxts.
Section
1. Search warrants for property stolen, &c.
2. Search warrants in otlier cases.
3. to whom directed; when and how exe-
cuted,
4. Search in the night time, when allowed.
6. Property seized may be kept as evidence,
and then restored to owner or destroyed.
REWARDS FOR APPREHENDING OFFENDERS.
6. Governor may offer rewards, &c.
7. Mayor and aldermen, iSsc, may offer re-
wards, &c.
8. Payment of reward.
ARREST, EXA5IINATION, COM:\nTMENT, AND
BAIL.
9. Warrants to arrest, by whom issued.
10. how to issue.
11. in what cases executed out of county, &c.
12. Prisoners, when to be brought before ma-
gistrate on arrest, &c.
13. Magistrate takin*^ bail, to return recog-
nizance to court, A:c.
14. Officer, how to proceed, if prisoner is not
bailed.
15. to take prisoner to county where war-
rant issued.
16. to be taken before magistrate, A-c.
17. Magistrate may adjourn examination, &c.
18. In case of default, magistrate to certify
recognizance to court.
19. Proceedings when party fails to recognize.
70
Section
20. Manner of conducting examination.
21. on part of prisoner.
22. Wituesses may be kept separate, '&c.
23. Testimony reduced to writing, &c.
24. Prisoner, when to be discharged.
25. when to be bailed or committed.
2G. "Witnesses to recognize.
27. may be required to give sureties.
28. Recognizances by married women and mi-
nors.
29. Witnesses refusing, shall be committed.
30. Depositions of witnesses may be taken in
certain cases. Proceedings.
31. to bo returned to court, &c.
32. Magistrate may have associates. Fees in
sueli cases.
33. Commitments, when to bo superseded, and
recognizances discharged.
34. Orders therefor, how to be filed, and effect
thereof.
35. Prisoners, how bailed if arrested after
court adjourns.
36. how bailed when committed.
37. not to be bailed without notice, &c.
.38. wlien bailed on Lord's day.
39. Condition of recognizances.
40. Kecognizances and examinations to be re-
turned to court.
41. 42, 43. Kail may exonerate themselves, &c.
44. may surrender principal, &c.
45. New bail not to have benefit, &c.
46. Defaults on forfeited recognizances.
47. Surety may pay amount of recognizanceB,
&c.
830
SEARCH WAEBANTS.
[Chap. 170.
Section
48. Action and judjjmcnt on recoj^iizances.
49. not to be defeated, &c., for certain irregu-
larities.
50. Review of judgments on forfeited recogni-
zances.
Section
51. Review, petition for.
52. Proceedings when former judgment is di-
minished.
5.3. when not diminished.
54. Offences not bailable.
Search war-
rants for prop-
erty stolen, &c.
Becl. of riylits,
art. 14.
R. S. 142, § 1
6 Cush. 309.
1 Gray, 1.
Search war-
rants in other
crises.
E. S. 142, § 2.
for counter-
feit coin, notes.
for obscene
books and
prints.
for lottery
tickets, itc.
5 Cush. 309.
for gaming
apparatus, &c.
U Met. -'J.
to whom di-
rected ; wlien
and liow exe-
cuted.
R. S. 142, § 3.
5 Met. 98.
2 Met. 329.
Search in the
ni^'-ht time,
wlieii allowed.
K. S. 142, § 4.
Property seized
ffiay be kept as
ridencc, and
tiien restored to
owner or de-
stroyed.
R. S. 142, § 5.
SEARCH WARRANTS. '
Section 1. Wlicn com]ilaint is made on oath to any magistrate
anthorized to issue warrants in criminal cases, that personal property
has been stolen, embezzled, or obtained by false tokens or pretences,
and th.at the complainant believes that it is concealed in any particular
house or place, the magistrate, if he is satisfied that there is reasonable
cause for such belief, shall issue a warrant to search for such property.
Sect. '2. Any such magistrate may also, upon like complaint made on
oath, issue search warrants when satisfied that there is reasonable cause,
in the following cases, to wit : —
First. To search for and seize counterfeit or spurious coin, forged
bank notes, and othei- forged instruments, or tools, machines, or materi-
als, prepared or provided for making either of them :
Second. To search for and seize books, pamphlets, ballads, printed
papers, or other things, containing obscene language, or obscene ])rints,
pictures, figures, or descriptions, manifestly tending to corrupt the
morals of youth, and intended to be sold, loaned, circulated, or distrib-
uted, or to be introduced into any familj'', school, or place of education :
Third. To search for and seize lottery tickets or materials for a lot-
tery, unlawfully made, provided, or procured, for the purpose of draw-
ing a lottery :
Fourth. To search for and seize gaming appar.atus or implements
used, or kept and provided to be used, in unlawful gaming, in any
gaming house, or in any building, apartment, or place resorted to for
the purpose of unlawful gaming.
Sect. 3. All search warrants shall be directed to the sheriff of the
county or his deputj', or to any of the constables of a city or town,
commanding such officer to search, in the day time, the house or place
where the stolen property or other tilings for which he is required to
search are believed to be concealed, (which place and property, or
things to be searched for, sliall be designated and described in the war-
rant,) and to bring such stolen jiroperty, or other things, when found,
and the persons in whose possession tliey are found, before the magis-
trate who issued the warrant, or some other magistrate or court having
cognizance of the case.
Sect. 4. If there is satisf ictory evidence that any jiroperty stolen,
embezzled, or obtained by false tokens or pretences, or that any of the
other things for which a search warrant maybe issued by the provisions
of this chapter, are concealed, kept, juvpared, or used, in a particular
house or place, a warrant may be issued by two magistrates, or by a
])olice court, to authorize the searching of such house or place by a pub-
lic officer, in the night time, and to bring the property or things de-
scribed in the warrant, if found, and the persons in whose jiossession
they are found, before either of tlie magistrates who issued the warrant,
or some other magistrate or court having cognizance of the case.
Sect. 5. When an officer in the execution of a search warrant finds
stolen or embezzled property, or seizes any of the otlier things for
which a search is allowed by the provisions of this chapter, all the jirop-
erty and things so seized shall be safely kept by the direction of the
court or magistrate, so long as necessary for the purpose of being pro-
duced or used as evidence on any trial. As soon as may be afterwards,
all such stolen and embezzled property shall be restored to the owner
Chap. 170.] rewards, arrest, examination, commitment, and bail. 831
thereof, and all the other things seized by virtue of such warrants shall
be burnt or otherwise destroyed under the direction of the court or
magistrate.
REWARDS FOR APPREHENDING OFFENDERS.
Sect. G. The governor, when in his o|iinion the public good requires Governor may
it, may offer and pay a suitable reward, not exceeding one thousand offer «ward8,
dollars in one case, to any person who in consequence of such offer ap- R- S. U2, § h.
prehends, brings back, and secures, any person convicted of or charged amenM il.
with a capital crime, or other high crime or misdemeanor, who has
escaped from prison in this state, or to any person who in consequence
of such offer apprehends and secures a pei-son charged with such offence,
when the person cannot be arrested and secured in the common course
of proceeding. The governor with the advice of the council may draw
his warrant on the treasury for the pajTiicnt of every such reward.
Sect. 7. The mayor and aldermen or selectmen of any city or town, Mayor tind al-
when in their opinion the public good requires it, may offer a suitable may'offcr^re^
reward, to be paid by such city or town, not exceeding five hundred wards, &c.
dollars in one case, to any person who in consequence of such offer 5 Met'.^so! '
secures any person charfjed with a capital crime or other hiffh crime or I '''''• ^"?-
■ 1 • ? • 11 1 1 -11111 • 1 5 Cush. 219.
misclemeanor committed m such place; and such reward shall be paid 7 Gray, an, 374.
by the treasurer upon the warrant of the mayor and aldermen or se-
lectmen.
Sect. 8. When more than one claimant appears and applies for the Pajincnt of
payment of such reward, the mayor and aldeiTnen or selectmen shall 5^q"-5" 5 2.
determine to whom the same shall be paid, and if to more than one jjer-
son, in what jiroportion to eachj and their determination shall be final
and conclusive.
arrest, EXAltlNATION, COinnTMENT, AND BAIL.
Sect. 9. For the a]i])rehension of persons charged with offences, the Warrants to
justices of the supreme judicial court, the superior court, or of any police whom issued.
court, in vacation as well as in term time, and all justices of the peace, ^,f-,S''*'"
are authorizeil to issue process, to carry into efiect the following pro-
visions of this chapter.
Sect. 10. Upon complaint made to anv such magistrate, that a crini- iiow to issue,
inal offence has been committed, he shall examine on oath the com- RisiHsile.'
plainant and any witnesses produced by him, shall reduce the comjilaint J f',"^''- -^''S.
to writing, and cause the same to be subscribed by the complainant,
and if it appears that such offence has been committed, the court or
justice shall issue a warrant, reciting the substance of the accusation,
and requring the officer to whom it is directed, forthwith to take the
person accused and bring him before said court or justice or some other
court or magistrate of the county, to be dealt with according to law,
and in the same warrant may require the ofticer to summon such wit-
nesses as shall be therein named, to appear and give evidence on the
examination.
Sect. 11. If a person against whom a warr.ant is issued under the in what cases
jjrovisions of chapter seventy-two, or for any alleged offence, before or county"&c"' °^
after the issuing of such warrant escapes from or is out of the county, J'^l' g^|' 5 3-
the officer to whom such warrant is directed may pursue and apprehend '
the party charged, in any county of this state, and for that purpose may
command aid and exercise the same authority as in his own county.
Sect. 12. In all cases where the offence charged in a warrant is not Prisoners,
punishable by death or imprisonment in the state prison, if the person bi-ought before
arrested requests that he may be taken before a magistrate of the magistrate on
county in which the airest was made, for the purpose of entering into 'r"s. 135,54.
a recognizance without a trial or examination, the officer who made the
832
ARREST, EXAMINATION, COMMITMENT, AND BAIL. [ChaP. 170.
Mag-istrate tak-
iu^'buil, to re-
turn rocofj^niz-
auce to court,
&o.
K. S. 135,§5
Officer, how to
proceed if pris-
oner is not
bailed.
K. S. 135, § 0.
to take pris-
oner to county
where warrant
issued.
K. S. 1-io, § 7.
Person arrested
to be taken be-
fore magistrate,
&c.
K. S. W.5, § 8.
1 Cush. 50:j.
Magistrate may
adjourn exami-
nation, &c.
K. S. 135, § 9.
1852, 259.
In case of dc-
ftiult, maofis-
trate to certify
rcco^iizance to
court.
K. S. 135, § 10.
Proceedin}^,
when party
fails to recog-
nize.
K. S. 1.35, § 11.
Manner of con-
ducting^ exami-
nation.
R. S. 135, § 12.
arrest shall caiTy bira before a magistrate of tbat county, who may take
fl'om the person aiTested a recognizance with sufficient sureties for his
appearance at the court having cognizance of the oft'ence, and next to
be held in the county where it is alleged to have been committed, and
the jiarty arrested shall thereujion be liberated.
Sect. 13. The magistrate who so lets the person arrested to bail,
shall certify that fact niton the warrant, and deliver the same ^^■ith the
recognizance to the oilicer, who shall cause the same to be (k'li\-cred
without unnecessary delay to the clerk of the court before which the
accused was recognized to ap])ear; and on application of the complain-
ant, the magistrate who issued the warrant, or the district-attorney, shall
cause such witnesses as he thinks necessary to be summoned to the same
court.
Sect. 14. When a person is aiTested in a county other than that in
which the offence was committed, if the magistrate before whom he is
brought refuses to admit him to bail, or if no sufficient bail is offered,
the officer shall take him before the magistrate who issued the warrant,
or in his absence before some other magistrate of, or police court in, the
county in which the warrant was issued.
Sect. 15. When the offence charged in a warrant is punishable with
death, or by imprisonment in the state prison, if the officer makes the
arrest in another county, he shall convey the prisoner to the county
where the warrant was issued.
Sect. 16. Every person arrested by warrant for any offence, where
no other provision is made for his examination thereon, shall be brought
before the magistrate who issued the warrant, or if he is absent or una-
ble to attend, before some other magistrate of the same county; and the
warrant, with a projier return thereon signed by the person who made
the arrest, shall be delivered to the magistrate.
Sect. 17. A magistrate may adjourn an examination or trial pending
before himself, from time to time as occasion requires, not exceeding ten
days at one time, without the consent of the defendant or person
charged, and to the same or a different place in the county, as he deems
necessary. In the mean time, if the ]3arty is charged with an offence
not bailable, he shall be committed ; otherwise he may be recognized in
a sum and with sureties to the satisfaction of the magistrate, for his
appearance for such further examination, and for want of such recogni-
zance he shall be committed to prison.
Sect. 18. If the person so recognized does not appear before the
magistrate or court according to the condition of such recognizance, the
magistrate or court shall record the default ; but such deiault may be
taken off by the magistrate or court for good cause shown at any time
to which the matter may be continued by said magistrate or court.
And in case such defoult shall not be taken off as aforesaid, the magis-
trate shall certify the recognizance with a record of such default to the
superior court, and like proceedings shall be had thereon as upon a
breach of the condition of a recognizance for appearance before said
sujierior court.
Sect. 19. When such person fails to recognize, he maybe committed
to prison by an order under the hand of the magistrate stating concisely
that he is committed for further examination on a future day to be
named in the order, and on the day apjiointed he may be brought before
the magistrate by his verbal order to the officer who made the commit-
ment, or by an order in writing to a different person.
Sect. 20. The magistrate before whom a person is brought u])on a
charge of having committed an offence, shall as soon as may be examine
the complaint and the witnesses to sujiport the prosecution on oath in
presence of the party charged, in relation to any matters connected with
such charge which may be deemed pertinent.
Chap. 170.] arrest, examination, coMmTMENT, and bail. 833
Sect. 21. After the testimony to sujiport the prosecution, the wit- Examination
nesses for the prisoner, if lie has any, shall be sworn and examined, priS?irer°*^
and he may be assisted by counsel in such examination, and in the cross- K- s. i35, § 13.
ex.amination of the witnesses in support of the prosecution.
Sect. 2'2. The magistrate may at his discretion, while examining a witnesses may
witness, exclude fi'om the place of examination all the other witnesses, ratc'^ic'! ''"
and may if requested, or if he see cause, direct the witnesses, for or K- S. 135, § 14.
against the prisoner, to be kept se])arate so that they cannot converse
with each other until they have been examined.
Sect. 23. The testimony of the witnesses examined shall be reduced Testimony rc-
to writing by the magistrate, or un<ler his dii-ection, when he deems it fniriJ" ^"'*"
necessary, and shall if required by the magistrate be signed by the wit- u°s. iM, § 15.
nesses.
Sect. 24. If it appears to the magistrate, upon the whole examina- Prisoner when
tion, that no oflence has been committed, or that there is not probable charged!
cause for charging the prisoner with the oflence, he shall be dis- i'- S- iss, § ic.
charged.
Sect. 25. If it appears that an offence has been committed and that when to be
there is probable cause to believe the prisoner guilty, and if the oflence nimcii!"^ '^°"
is bailable by the magistrate and the prisoner ofters sufticient bail, it K- S- i35, § 17.
shall be taken and the prisoner discharged; but if no suflicient bail is
oflered, or the oflence is not bailable by the magistrate, the prisoner shall
be committed to prison for trial.
Sect. 26. When the prisoner is admitted to bail or committed, the witnesses to
magistrate shall bind by recognizance such witnesses against the pris- lif s?^55J§ ig.
oner as he deems material, to a])pear and testify at the next court having
cognizance of the oflence, and in which the prisoner shall be held to
answer.
Sect. 27. If the magistrate is satisfied that there is good cause to may be requir-
believe that any such witness will not perform the condition of his {"[J.g*"""" ""'^
recognizance unless other security is given, he may order the witness to K- s. i3o, §19.
enter into a recognizance with such sureties as may be deemed neces-
sary for his appearance at court.
Sect. 28. When a married woman or minor is a material witness, Kecognizances
any other person may be allowed to recognize for the a]]pearance of nKM^andmi^"
such witness ; or the magistrate may in his discretion take the recogni- "ors.
zance of such married woman or minor in a sum not exceeding iifty '' "■ ' ' '
dollars, which shall be valid and binding in law notwithstanding the
coverture or minority.
Sect. 29. Witnesses required to recognize cither with or without witnesses re-
sureties, shall, if they refuse, be committed to prison by the magistrate, [""om'm'itted.
there to remain until they comply with such order or are otherwise dis- i'- s. i3j, § 21.
charged according to law.
Sect. 30. If it appears to the magistrate that a witness is unalile to Depositions of
procure sureties when so ordered, he may with the consePit of the },"St"un"ce^
defendant take, or cause to be taken by any magistrate authorized to *;''". '■■^""■^
take dejiositions in civil cases, the deposition of such witness in manner isji.Vi, §fi,'2.
and form as is provided in civil cases, and the witness shall thereupon be
disch.arged. The attorney for the commonwealth who will have charge
of the case at the trial shall bo notified of tlie time and place of taking
the same, as parties are required to be notified ; and the assent of the
defendant shall be indorsed on the deposition. The fees shall be the
same as in civil cases, and shall be taxed in the bill of costs. The pro-
visions of this section shall not apply to the prosecutor in the case, or
to any accomplice in the commission of the oflence charged in the
complaint.
Sect. 31. The deposition shall be seasonably transmitted to the court to be rc-
at which the witness was ordered to a]ipear; and if he is unable to ^y™'='"o """rt,
attend at the time of the trial, by reason of his death, insanity, sickness, '"^i. "■> 5 '-'•
70* 105
834
AEREST, EXAMIKATION, COMMITMENT, AND BAIL. [ChAP. 170.
Ma^strate may
haveassoeiiites.
Fees in sucll
cisee.
K. S. 135, § 23.
Commitments,
■\vlien to be su-
perseded, and
recognizances
discliarged.
K. S. i:«, § 35.
ISM, 198.
Orders there-
for, how to bo
filed and otfoct
tliereof.
K. S. 135, § 20.
Prisoners, how
bailed if arrest-
ed after court
adjourus.
IMS, 100, § 1.
how b.ailed
when commit-
teil.
K. S. 135, § 22.
1851, 92, § 2.
1835, 205, § 1.
1859, 190.
8 Greenl. 179.
not to be
bailed without
notice, &c.
R. S. 135, § 22.
1851, 92, §2.
1855, 205, § I.
when b-iiled
on Lord's day.
1855, 205, § 2.
Condition of
recognizances.
1845, 100, § 2.
or any infirmity, or of his being absent from the state so that he cannot
be compelled to attend by subpa'oa or attachment, the deposition may
be read in evidence on the trial by either party, subject to all legal ob-
jections.
Sect. 32. A magistrate to whom complaint is made, or before \vhom
a ])risoner is brought, may associate Avith himself one or more of the
magistrates of the same county, and they may together execute the
powers and duties given to magistrates by this chapter ; but no fees
shall be taxed for such associates.
Sect. 33. When a person is committed to prison or under recog-
nizance to answer to a charge of assault and battery or other misde-
meanor for which the jiarty injured may have a remedy by civil action,
(except where the oflenee was committed by or upon a sherifi:' or other
officer of justice, or riotously or with intent to commit a felon)-, or is
punishable by iniprisonment in the state prison,) if the party injured
apjiears before tlie magistrate who made the commitment or took the
recognizance, and acknowledges in writing that he has received s.atisfac-
tioii for the injury, the magistrate may in his discretion, on the payment
of all the costs which have accrued, by au order under his hand dis-
charge the recognizance or sujiersede the commitment, and may also dis-
charge all recognizances and supersede the commitment of .all witnesses
in the case.
Sect. 34. Every such order discharging the recognizance of the party
or witnesses, shall be tiled in the office of the clerk before the sitting of
the court at which they are bound to appear; .and every order super-
seding the commitment of the party charged, or of any witness, shall
be delivered to the keeper of the jail in which he is confined, who shall
forthwith discharge him ; and every such order, if so filed and delivered,
and not otherwise, shall forever bar all remedy by civil action for such
injury.
Sect. 35. When a person under indictment for a bailable ofiPence is
arrested .after the adjournment of the court in which the same is triable,
any justice of the court, or any standing or special commissioner ap-
jiointcd for such pnriiosc by the court, may fix the amount of and receive
bail in the same manner as the court might do.
Sect. 36. A justice of the supreme judicial court, superior court, or
a standing or special commissioner appointed by either of said courts, or
a justice of a police court or two justices of the peace .and of the quorum
in any county, on application of a prisoner committed for a baikable
offence, whether on a warrant or without one, may inquire into the case
and admit such prisoner to bail ; and such officers and justices of the
peace may respectively .admit to bail any person committed for not find-
ing sufficient sureties to recognize for him.
Sect. 37. If the person is committed without an order fixing the
amouut of the recognizance, he shall not be admitted to bail under the
preceding section until reasonable notice of his application to the officer
by wiiom he was committed ; and if committed with such order, he shall
not be admitted to bail by a commissioner, ])olice court, or justices of
the peace, for a less amount than is recjuired by the order.
Sect. 38. Persons committed to jail on the Lord's day, or on the
evening or afternoon jircceding, may be admitted to bail on that day,
when in the opinion of the m.agistrate an application for that purpose
appears to be projior.
Sect. 39. When a court or magistrate takes a recognizance of a per-
son, either with or without surety, binding him to a])pear ,at a court to
be held by any police justice, or trial justice, or at a term of any court,
to answer to a charge against him, or to prosecute an appeal or bill of
exceptions, the condition shall be so framed as to bind him personally to
api)eaj- at the time or teiTU so expressed, and at any subsequent time or
Chap. 170.] arrest, examination, commitment, and bail. 835
tenn to which the case m.ay be contimicrl, (if not previously surrendered
or discharged,) and so from time to time or term to term, until the final
decree, sentence, or order, of the court thereon, and to abide such final
sentence, order, or decree, and not dej)art without leave.
Sect. 40. All recognizances and examinations taken by a magistrate Rocofjniznncos
under the provisions of this chapter, shall be certified and returned by fiJ,','8'^o"bp°ro-
him to the district-attorney or the clerk of the court before which the turned to court,
party charged is bound to appear, on or before the first day of the •>•>. s-;*-
sitting thereof; and if such magistrate refuses or neglects to return
the same, he may be compelled forthwith by rule of court, and in case
of disobedience, may be proceeded against by attachment as for a
contempt.
Sect. 41. Bail in criminal cases, at any time before the commence- n.iii may oxon-
ment of an action of scii-e facias on the recognizance, may exonerate s"ves"&'""
themselves bj' surrendering their principal to the jailer in the county issi.ol', §§' i, 2.
where the offence was committed or is punishable, and delivering to ^^^' ''^'"
him a certified copy of the recognizance ; and the principal shall be re-
ceived and detained by the jailer, and may be again bailed, in the same
manner as if committed for not finding sureties to recognize for him.
Sect. 4iJ. Bail may also exonerate themselves at any time before same Bubject.
final judgment in an action of scii-e facias on the recognizance by sur- '*°''*' '■"■
rendering their jirincipal into court ; but if such action has been com-
menced the court may require the bail to pay the whole or any portion
of the costs or penalty.
Sect. 4.3. If by the act of God, or the government of the United same subject.
States, or any state, or by sentence of law, bail are unable without their '^"' '"■
fault to surrender their jirincipal, they shall, on motion before final judg-
ment on the scire J'acias, be exonerated and discharged by the court,
with or without costs, as the court deems ecjuitable.
Sect. 44. Bail may take and surrender their principal into court or may surren-
in the manner provided in section forty-one, after final judgment on the ']^J prmcipai,
scire facias, and before or after satisfaction thereof" and may thcreujion isj'J, wi.
as of right have a review and rehearing as provided in section fifty to
fifty-three inclusive.
Sect. 45. When the principal has been once surrendered and bailed Now bail not to
anew, his new bail shall not have the benefit of the provisions of the Jj.""' ^"'^'''•'
four preceding sections, nor of section fifty to fifty-three inclusive. imd, i:;i.
Sect. 46. When a person under recognizance to appear and answer, Defauita on for
or to prosecute an appeal or bill of exceptions, in a criminal prosecution, x^iVcck'.'^™"'"
fails to appear for that purpose according to the condition of his reeog- R- S- iss, § ar.
nizance, and when a person under recognizance to testify in a criminal "'' ' '
prosecution fails to perform the condition of his recognizance, his default
may be recorded ; whereupon the obligation of such person and his
sureties shall be deemed forfeited, and process shall be issued against
them or such of them as the prosecuting officer directs ; but in such suit
no costs shall be taxed for travel.
Sect. 47. A surety in such recognizance may by leave of the court. Surety may pay
after default and either before or after iirocess has been issued asjainst ""'""'"'.''/J''"
film, ]iay to the county treasurer or clerk of the court the amount for &c.
which he was bound as surety, with such costs as the court shall direct, '''■ ®' '^' ^ ^"
and be thereu])on forever discharged.
Sect. 48. When an action is brought on behalf of the common- Action and
wealth against a principal or surety in a recognizance in a criminal io^fSnc™'^''
prosecution entered into either by a party or a ^\-itness, and the jienalty R/s. i.tt, § ;;o.
is adjuilged forfeited, the court may render judgment for the whole of loiaVs. m!
such penalty with interest, or on ap]ilication of the defendant, for any
part thereof according to the circumstances of the case and the situation
of the party, and upon such terms and comlitions as the court deems
just and reasonable.
836
INDICTMENTS, &o., AND PROCEEDINGS BEFORE TRIAL. [ChAP. 171.
Action on ro
co;^nizauce not
to be dolL'iitod,
&c., for certain
irregularities.
K. S. 135, §30.
2 Greenl. (j2.
9 Mass. 530.
13 Mass. 1.
10 Mass. 447.
9 Met. 407.
7 Gray, 310.
Koview of
judf^ments on
forleitod recog-
nizances.
1852, 126, § 1.
petition for.
1852, 126, § 2.
Proceedings
ivlien former
judgment is
diminished.
1852, 126, § 3.
when not di-
minished, Ac.
ItaU, 12fi, § 4.
OfTcnoes not
bailable.
1852, 259, § 4.
Sect. 49. Such action shall not be baiTed or defeated, nor shall
judgment be arrested, by reason of neglect or omission to note or record
the default of any principal or surety at the term when it happens, nor
by reason of a defect in the form of the recognizance, if it sufficiently
appears from the tenor thereof, at what court the party or witness was
bound to apj)ear, and that the court or magistrate before whom it was
taken was authorized by law to require and take such recognizance.
Sect. 50. A court that has rendered judgment on a recognizance
the penalty of which is forfeited to the commonwealth, may on the pe-
tition of any person interested grant a review and a rehearing of the case,
upon tlie surrender or recaption of the prisoner who was enlarged, or
for any sufficient cause which has occurred or been ascertained by the
person interested after tlie rendition of such judgment, or at such time
as not to have afforded opportunity for presenting the same in evidence.
Sect. 51. The petition, stating the grounds relied upon, shall be filed
in court, and notice thereof with a copy given to or served on the attor-
nej' for the commonwealth for the county where the court is to sit,
fourteen days at least before the term at which such hearing may be
had, unless the attorney waives such notice or ser\'ice.
Sect. 52. If it appears to the court that any part of such preceding
judgment has been actually jjaid to or for the commonwealth upon the
recognizance or judgment, and upon such review the court orders the
judgment to be reversed or given for a less sum than has been so actu-
ally paid, the court may decree a sum equal to the diffijrence between
the amount actually paid and the amount so ordered, to be repaid to
the party who paid the same or his legal representatives ; and the treas-
urer or other officer of the commonwealth who received or then has the
same, shall, on presentation of proper evidence of authority therefor,
repay the same accordingly.
Sect. 53. If ujion sucli jictition the review is not granted, or the
original judgment is not altered, tlie court may award reasonable costs
for the commonwealth against the ]ietitioner.
Sect. 54. The offences of treason, rape, and arson shall not be bail-
able.
CHAPTER 171.
OF INDICTMENTS, PROSECUTIONS, AND PROCEEDINGS BEFORE TRIAL.
Section
1, 2. Grand jurors, when and how returned,
and term of service.
3. Same subject. Who grand jurors, and who
jurors for trials.
4. Grand jurors, deficiency in, how supplied.
5. how empanelled and sworn. Form of
oath.
6. when allowed to affirm.
7. Foreman.
8. duty and term of service of. Foreman
pro tempore.
9. Who may swear witnesses before grand
jury. List of witnesses.
10. Grand jury may api^oint clerk. Minutes of
clerk.
, 11. may be resummoned at same term.
12. Grand jurors, &c., not to disclose fact of in-
dictment found.
13. not to testify how members voted, &c.
14. Prisonur not indicted, when to be dis-
charged.
15. when discharged as issane, to be sent to
hospital.
Sectiox
10. Special acts, &c., need not be set out in
complaint, &c.
17. OITeuces committed near county lines, and
on the sea.
IS. Indictment where injury is in one county
and death in another.
19. for offences committed at sea or out of
state, &c.
20. Limitation of criminal prosecutions.
21. Indictment for a capital offence.
22. copy of, to be served on prisoner, &c.
2.3. notice of, to chief justice of S. J. C- ; en-
try, &c.
24. prisoner to have copy of, list of jurors,
&c.
25. TVhat other prisoners entitled to copies of
indictment.
20. Prosecuting officers may issue subpoenas.
27. Witnesses for state not entitled to fees in
advance. Payment of witnesses* fees.
28. What criminal prosecutions may be stayed
upon reparation to party injured.
Chap. 171.] indictments, &c., and proceedings before trial.
837
Section
2i*. Prisoner rcfUBing: to plead. Need not be
asked how lie will be tried.
30. When persons in prison under an indict-
ment are to be tried, if they require it.
31. Flea in abatemeut, when to be veriHed.
Section
32. Commission to examine witnesses, how
granted.
33. Such commissions, how executed, and depo-
sitions, how used.
34. Civil remedies not barred by proceedings la
criminal cases.
Section 1. Tlie clerk of the superior court for each county, not less Grand jurors,
than seven nor more than thirty days before the commencement of the ).eturned''an(r
first term of the court in each year, shall issue writs of venire facias, term of service,
in each county, for twenty-three grand jurors to be returned to that Jsio,'/*!''' ^ ''
court, who shall be held to serve at each term thereof throughout the See isco, ch. h3.
year, and until another grand jury is empanelled in their stead : except
that in the counties where terms of the court are established for the
transaction of criminal business, grand jurors shall be required to attend
only at such terms.
Sect. 2. The clerk of the superior court for criminal business, not in Suffolk,
less than seven nor more than fourteen days before each term com- ^;jf'^'''|3'''
mencing on the first Mondays of January and July, shall issue writs of istr.) \-i7.
venire facias for twent\'-three grand jurors to serve in said court, twenty- g^'jgoo ch.i43.
two of whom shall be drawn and returned from the city of Boston, and
one from Chelsea, North Chelsea, or Wiiithro]), who shall be held to
son"e for each term thereof for six months and until another grand jury
is empanelled in their stead.
Sect. 3. Grand jurors shall be drawn, summoned, and returned, in Same subject,
the same manner as jurors for trials; and when drawn at the same time TOrs" £id"wiio"
with jurors for trials, the persons whose names are first drawn, to the jurors for trials,
number required, shall be returned as grand juror.s, and those afterwards gceCh. 13I. '
drawn shall be jumrs for trials.
Sect. 4. In case of deficiency of grand jurors in any court, writs of Grand jurors,
venire facias may be issued to the constables of such cities or towns as iJow'suppiicd.
the court may direct, to return forthwith such further number of grand u. s. 130, 5 i.
jurors as may be required.
Sect. 5. The clerk of the court shall prepare an aljihabetical list of howempanei-
the names of all jiersons returned as grand jurors, and when ^hey are k^s.°13G,T5.''
to be empanelled, the two persons first named thereon shall be first
called, and the follo^nng oath shall be administered to them: —
You, as grand jurors of this inquest for the body of this county of , do form of oath.
solemnly swear, that you will diligently inquire, and true presentment make, of all
such matters and things as shall be given you in charge; the commonwealth's counsel,
your fellows', and your own, you shall keep secret ; you shall present no man for
envy, hatred, or malice, neither shall you leave any man unpresentcd for love, fear,
favor, affection, or hope of reward ; but you shall present things truly, as they come
to your knowledge, according to the best of your understanding ; so help you, God.
The other jurors shall then be called in such divisions as the court may
deem proper, and the following oath shall be administered to them: —
The same oath which your fellows have taken on their part, you, and each of you,
on your behalf, shall well and truly observe and keep ; so help you, God.
Sect. 6. When a person returned as grand juror is conscientiously when .lUowed
scrupulous of taking the oath before presxrilied, he shall be allowed to I'^^iUo; 5 g,
make affirmation, substituting the word "affirm" instead of the word
"swear," and also the words, " this you do under the pains and penalties
of perjury," instead of the words, "so help you, God."
Sect. 7. After the grand jurors have been empanelled and received Foreman,
their charge from the court, they shall retire with the officer appointed e. s. i3(.,§,.
to attend them, and before proceeding to discharge their duties, elect by
ballot one of their number to be foreman, and give notice thereof to the
court, and the clerk shall record the same.
Sect. 8. The foreman elected at the first term shall be foreman for duty and
838
INDICTMENTS, &c., AND PROCEEDINGS BEFORE TRIAL. [ChAP. 171.
term of service
of. Foreman
pro tempore.
K. S. 136, § 8.
Who may
swear witness-
es before the
g^rand jury.
List of wit
nesses.
K. S. 13(1, § 9.
4 Gray, 5.
Grand jury may
appoint clerk.
Minutes of
clerk.
K. S. 130, § 10.
may be re-
summoned at
same term.
K. S. 130, § 11.
Grand jurors,
&e., not to dis-
close fart of in-
dictment ibund.
U. S. 130, § l>.
not to testify
how members
voted, Ac.
K. ii. 1.10, § 13.
Prisoner not in-
dicted, when to
be discharged.
K. S. 130, f 14.
when dis-
charged us in-
sane, to be scut
to iiospital.
II. S. 130, § 15.
1833, 3 IS, § 1.
1830, 247, § 3.
.See Ch. 73, § 8.
Special acts,
Aj., need not
bo set out in
complaint, &c.
l.sliS, 181, § 4.
ISlli, 0:.'.
1840, '.15, § 15.
3 I'ick. 402.
(''tT3nccs com-
luitteil near
county lines,
and on tlie sea.
U. S. 133, § 7.
Indictment
where injury is
in one county
and death in
.inother.
U. .•?. 1.33, § S.
for offences
committed at
sea or out of
state, &c.
the whole period they are required to sei've, but in his .absence another
foreman shall be elected in the same manner, who shall perform the
duties during such absence, and in case of the death of the foreman, for
the residue of their term of service.
Sect. 9. The foreman of the grand jury, or the prosecuting officer
before tliem, may administer oaths and affirmations in the manner pre-
scribed Ijy law, to witnesses who .appear to testify before the jury, and
the foreman shall under his hand return to the court a list of all wit-
nesses sworn before the grand jury during the temi, which shall be filed
of record by the clerk.
Sect. 10. The grand jury may appoint one of their number to be
clerk, to preserve minutes of the proceedings before them, which minutes
when the jury so direct shall be delivered to the attorney-general or
district-attorney.
Sect. 11. When the grand jury are dismissed before the court is
adjourned without day, they may be summoned to attend again in the
same term, at such time as the court directs for the desiiatch of any
business tliat may come before them.
Sect. \i. No grand juror or officer of the court shall disclose the
fact tliat an indictment for felony has been found against any person not
in custody or under recognizance, otherwise than by issuing or executing
process on the indictment.
Sect. 13. No grand juror shall be allowed to state or testify in any
court, in what manner he or any other member of the jury voted on any
question before them, or what opinion was expressed by any juror in
relation to sucli question ; and in charging the grand jury, the court
shall remind them of the provisions of this and the preceding sections.
Sect. 14. Any jierson held in prison on a charge of having com-
mitted a crime, shall l>e discharged if he is not indicted before the end
of the second term of the court at which he is held to answer, unless it
ap])ears to the satisfaction of the court tliat the witnesses on the jjart
of the governinent have been enticed or kept away, or are detained and
prevented from attending the court by sickness or some inevitable acci-
dent, and excei>t in the case provided for in the following section.
Sect. 15. When a person licld in prison on a charge of having com-
mitted an indictable offence is not indicted by the gr.and jury by reason
of insanity, they shall certify tlie fact to the court, and thereupon, if
his discharge or going at large is deemed manifestly dangerous to
the peace and safety of the community, the court may order him to
be committed to one of the state lunatic hospitals ; otherwise he shall
be discharged.
Sect. 16. In a complaint, prosecution, or other process, founded on
a sjiecial act of the legislature, an ordinance or by-law of any city or
town, or .an order of the mayor and aldermen, it shall be sufficient to
set forth the offence fully, plainly, substantially, and formally; and no
part of such law, ordinance, by-law, or order, need be set forth.
Sect. 17. An offence committed on tlie boundary of two counties,
or within one hundred rods of the dividing line between them, may be
alleged in the indictment to have been committed, and may be prose-
cuted and punished, in either county. An offence committed u]ion the
sea within one league of the shore may be pro.secuted and punished in
the adjacent county.
Sect. 18. If a mortal wound is given, or other violence or injury
inflicted, or poison is administered, in one county, by means whereof
death ensues in another county, the offence maybe prosecuted and pun-
ished in either county.
Sect. 19. If a mortal wound is given, or other violence or injury
inflicted, or poison is administered, on the high seas, or on land either
within or witliout the limits of this state, by means whereof death
Chap. 171.] indictments, &c., .\nd proceedings before tri.vl. 839
ensues in any county thereof, such offence may be prosecuted and jiun- R. s. 133, § 9.
ished in the county whei'e the deatli happens.
Sect. 20. An indictment for the crime of murder may be found at Limitution of
any period after the death of the person alleged to liave been mur- l^uous!^"^"^^'
dered; all other indictments shall be found and filed within six years k. s. iso, § 16.
after the commission of the offence ; but any period during which the cii^ §;;,■§ 3]
party charged was not usually and jmbliely resident within this state, F.','; ?^]'J '""A .1''^'
shall not be reckoned as part of the six years. 20,"'2a. ' "'
Sect. 21. If the grand jury find and return to the court an indict- indictment for
ment for a crime punishable with death, process shall be forthwith j^ju^^''"' °*^
issued for the arrest of the party charged, if he is not already in it. s.'ss, § 27.
custody. _ _ _ Jl«%'4fsi''-
Sect. 22. A.s soon as may be after the finding of such indictment, copy of, to be
the party charged, when in custody, shall be served witli a co)iy thereof onc™\c"^"^
by the sheriff or his deputy, with an order of the court notifyintr him, k. s. si,§46.
if the indictment is found in the county of Dukes County, that the i;] §! lio, §§ is,
indictment will be entered at the supreme judicial court next to be held j-J- ,, ^.
in the county of Barnstable, and if found in any other county, at the s Cuaii.'so?!
term of said court next to be held for the same county, or in either fi'g 9>|Jioj "'
case at any intermediate time before the next term of the court, when
the court may be in session in the county.
Sect. 23. The clerk of the superior court, when such an indict- notice of, to
ment is found, shall forthwith give notice thereof to the chief or first s.'jf c.f cntr/,
justice of the supreme judicial court, and shall transmit the indictment *''•
to said court, at the next term or any intermediate time, as mentioned u! s] ijl;, §§ is,
in the preceding section, where it shall be entered. The sujireme judi- -JJ^^ 44 54
cial court shall have cognizance and jurisdiction thereof, and proceed- iswi 1%.
iiigs shall be had thereon, in the same manner as if the indictment Iiad ^Cush. 397.
been found in tliat court.
Sect. 24. Any prisoner indicted for a crime punishable with death, prisoner to
or imprisonment for life in the state prison, shall, on demand ujioii the ^"™ ™p^ ''^'
clerk by himself or his counsel, have a list of the jurors returned de- I'-.s. 130, §23.
Uvered to him, and shall also have process to summon such witnesses isMass.'loi.'
as are necessary to his defence, at the expense of the commonwealth.
Sect. 25. Every person indicted for an offence for Avhicli he may be what other
imprisoned in the state prison, if he is under recognizance or in custody titicd"t'o copy
to answer fi^ir such offence, shall be entitled to a copy of the indictment "f indictment,
ana all indorsements thereon, without paying tees tlieretor.
Sect. 26. The attorney-general and other prosecuting officers may I'roBccuting of.
in all eases issue subpoenas for witnesses to aj)pear and testify on behalf suc'subpa'na^s.
of the commonwealth, and the subjia'na, under the hand of such officer, K- s. 130, § 25.
shall have the same force, and be obeyed in the same manner, and under
the same penalties in case of default, as if issued by the clerk.
Sect. 27. "Witnesses summoned in behalf of the commonwealth witnesses for
shall be bound to attend without the payment of fees, and shall be j)un- tiu«u'oVee8 in
ishable for non-attendance ; but if they satisfy the court of their inabil- mivancc, &c.
ity to defray their expenses, the court shall order their fees which have witncBs fees.
accrued to be paid, and may make such further order for the payment ]^m 'o'"'' ^ ^*''
of their fees as maj' be deemed reasonable. The court may at each
term i)ass a general order for the payment of tlie fees of such wit-
nesses.
Sect. 28. When an indictment is found against a person for an as- wh.it criminal
sault and battery or other misdemeanor for which the party injured may Jn'^"y b?stwed
have a remedy by civil action, except where the offence was committed upon repi>r.ition
by or upon a sheriff or other officer of justice, or riotously, or with jured!^ *^°"
intent to commit a felony, or is punishable by imprisonment in the state Jv,?',',il'''^^''
prison, if the party injured appears in court where the indictment is " ' ' '
jiending, and acknowledges satisfiiction for the injury sustained, the
court may, on payment of the costs accrued, order all further pro-
840
TRIALS IN CRIMINAL CASES.
[Chap. 172.
Prisoner rofus-
inff to ijli'jKi.
Need uot be
asked how lie
^vill be tried.
R. S. 13(i, §§ js,
2a. 10 Met. 222.
when to be
tried.
R. S. 130, § 30.
15 Mass. 27r.
Plea in abate-
ment, wlien to
be verified.
K. S. 130, § 31.
Commission to
examine wit-
nesses, how
granted.
R. .S. 136, § 32.
5 Met. -427.
Such commis-
sions, how exe-
cuted, and depo-
sitions, Iiow
used.
11. a. 130, § 33.
Civil remedies
not barred by
proceedings in
criminal cases.
1851, 151, § 0.
18Sfi, 123, § 6.
ceedings to be stayed, and discharge the defendant from the indict-
ment, wliich sliall forever bar all remedy for such injury by civil action.
Sect. 29. If on arniignment a person refuses to plead or answer,
or does not confess the indictment to be true, the court shall order a
plea of not guilty to be entered, and thereupon the proceedings shall
l:ie the same as if he had pleaded not guilty. It shall not be necessary
in any case to ask a prisoner how he will be tried.
Sect. 30. Every person held in prison upon an indictment shall, if
he requires it, be tried at the ne.^t tenn of the court after the expi-
ration of six months from the time when he was imprisoned, or shall be
bailed upon his own recognizance, unless it appears to the satisfaction
of the court that the witnesses on behalf of the government have been
enticed or kept away, or are detained and prevented from attending the
court by sickness or some inevitable accident.
Sect. 31. When to an indictment a plea in abatement or other dil-
atory plea is offered, the court may refuse to receive such plea, until its
truth is proved liy atKdavit or other evidence.
Sect. 32. When upon an indictment an issue of fact is joined, the
court ma}', on a]iiilication of the defendant, grant a commission to
examine any material witnesses residing out of this state, in the same
manner as in civil causes ; the prosecuting officer may if he sees fit join
in such commission, and name any material witnesses to be examined
on the part of the commonwealth.
Sect. 33. When such commission is issued, the interrogatories to be
annexed thereto shall be settled, and the commission executed and re-
turned, in the manner prescribed 1)y law in relation to commissions in
civil cases, and the depositions taken thereon and returned shall be
read in the same cases, with the like effect and subject to the same ex-
ceptions, as in civil cases : provided, that when the defendant declines
to use on his trial the deposition so taken, the prosecuting officer shall
not make use of any deposition taken on the part of the commonwealth,
without the defendant's consent.
Sect. 34. No ])roceedings against a person for a criminal offence
shall prevent or bar any civil action which might otherwise be main-
tained by a party aggrieved by the commission of the offence.
CHAPTER 172.
OF TRIALS.
Section
1. Issues of fact in indictments, how tried.
2. No grand juror to bo on trial jury.
3. Challeng-es by defendants, attomey-g-en-
eral, &c.
4. peremptory, when allowed.
6. What opinions disqualify jurors in capital
cases.
6. Oaths of jurors. Forms of oaths.
7. Affirmation of jurors.
8. When defnndant is to be present at trial, &c.
9. Court may order view.
10. Defendant relying upon license, must prove
the same.
11. Defence in cases of libel.
Sectiox
12. Proof of ownership of property by posses-
sion, Ac.
1.3. Time included in " night time."
14. Prisoner found insane to be sent to hospital.
15. Jury may decide the law and the fact, Ac.
IG. Proceedings on conviction of part of offence
charged.
17. on acquittal by reason of insanity.
18. Persons acquitted, &e., not liable for fees,
or for subsistence while in custody.
19. Certain defects of form uot to vitiate indict-
ments.
20. Prosecutions under by-laws may be discon-
tinued by order of selectmen, &c.
Issues of fact, SECTION 1. Issucs of fitct joined upon indictments sliiill be tried by
Sk! s.^i3^'§ 1. a jury drawn and returned in the manner prescribed by law for the trial
of issues of fact in civil causes.
Chap. 172.] trials m criminal cases. 841
Sect. 2. No member of the grand jury which has found an indict- No ^and juror
ment shall be put upon the jury for the trial thereof. K. s. 137, § 2. to te on trial
Sect. 3. Every person indicted for an offence, and the attorney-gen- chaUengi;s by
eral, or other officer prosecuting an indictment on belialf of the com- forncyScuenU
monwealtli, shaU, when the jury is empanelled for the trial, be entitled &:<•■ °
to the challenges allowed by law to parties in civil causes. ScVch.iwfsM.'
Sect. 4. A person put on trial for an offence punishable witli death, peremptory,
or imprisonment for life in the state prison, shall be allowed to challenge k!'™ Ki't^^sf '
peremptorily twenty of the persons returned as jurors, and no more. isou, iui>, § 21.
Sect. 5. No person whose opinions are such as to preclu<lc him from wh.it opinions
finding a defendant guilty of an offence jiunislialjle with death, shall be rorTin'capitai
conipclled or allowed to serve as a juror on the trial of .an indictment ■'•■'si's.
„ ' I „. '' K. s. isr, § 6.
for such offence.
Sect. 6. The follo\\'ing oath shall be administered to the iurors for oaths of jurors.
the trial of all criminal cases not capital : — See'ch! 13I, 520.
You shaU well and truly try the issue between the commonwealth and the defendant,
(or the defendants, as the case may be,) according to your evidence ; so help you, God.
In capital cases the following oath shall be administered to the
jurors: —
You shall well and truly try, and true deliverance make, between the commonwealth
and the prisoner at the bar, whom you shall have in charge, according to youi- evi-
dence ; so help you, God.
Sect. 7. A juror who is conscientiously scrupulous of taking either AffirmaHonof
of the o.aths above prescribed, shall be allowed to make affirmation, sub- 'S^^^i^- eg
stituting the words, " this you do un<ler the pains and penalties of per-
jury," instead of the words, "so help you, God."
Sect. 8. No person indicted for a felony sh.all be tried unless ]ier- when dofend-
soually present during the trial ; persons indicted for smaller offences p?cscnt'a'rtriai,
may at their own request, by leave of the court, be ])ut on trial in their &c.
absence, by an attorney duly authorized for that jnirjjose. in52,'37,'§i. '
Sect. 9. The court may order a view by a jury empanelled to try a court mayor-
criminal case. " 5 Cush. 29S. ^'"•g*'™- J ,g
Sect. 10. In all criminal prosecutions in which the defendant relies pcfcndau't reiy-
for his justification upon any written license, appointment, or certificate j.°fs'.'',°"st'
of authority, he shall prove the same, and until such proof, the presump- prove the same.
tioTi sliall be that he is not so authorized. ^>^'->' i'J»- 1° C"^"- «9- '*"' '''^•
Sect. 11. In a prosecution for writing or publishing a libel, the Defence in cases
defendant may ffive in evidence in his defence upon the trial, the truth ?/'i'"v'io ^r
n 1 • T • 1 1 1' • IT 1*1 n T it. S. 133, §6.
of the matter contained in tlie pubhcation chargetl as libellous, and isso, 39a.
such evidence shall be deemed a sufficient justification, unless malicious 3 pi^k^'.sr^^'
intention is proved. isMot. os. biiet-'-iio.'
Sect. 12. In the prosecution of offences in relation to or affecting Proof of owner-
re.al or personal estate, it shall be sufficient, and shall not be deemed a ^Wp of property,
variance, if it is proved on the trial, that at the time wlieu the offi'nce k. s. i33,_§ii.
was committed, either the actual or constructive possession, or the gen- h'.ii^ss. 217.
eral or special property, in the whole or any part of such real or per- >" ^i«'- *^--
sonal estate, was in the person or community alleged to be the owner
thereof.
Sect. 13. "When an offence is alleged to have been committed in the Time included
night time, the time called night time shall be deemed to be the time }°„g'V,='^''
between one hour after the sun-setting on one day and one hour before isi7, 13.
sun-rising on the next day; and in all cases the time of sun-setting and I Gmyjiaa.'
sun-rising shall be ascertained according to mean time in the place where
the offence is committed.
Sect. 1-1. When a person indicted is at the time appointed for the trial Prisoner found
found to the satisfaction of the court to be insane, the court may cause smuo hospital,
him to be removed to one of the state lunatic hospitals for such, a term i*i;', iw-
and under such limitations as they may direct. issii'247'.
71 106 See Cli. 73, § 8.
842
APPEALS IN CRIMINAL CASES.
[Chap. 173.
Jury may de-
cide the law and
the lilL-t, &c.
isor, HO, § 15.
1K53, 153.
10 Pick. 4!W.
20 Pick. ^ri.
10 Jlct. 2lin.
5 Gray, IJsi.
See Ch. 112,
§§11,20,27.
Proceedings on
conviction of
part of offence
charged.
K. S. 137, § 11.
12 Pick. 607.
19 Pick. 47'J.
1 Met. 2ri2.
2 Met. 193.
on acquittal
by reason of
insanity.
K. S. 137, § 12.
1853, 31S, § 1.
1850, 2i7, § 3.
7 Gray, 584.
Persona acquit-
ted, &c.,not lia-
ble for fees, &c.
K. S. 137, § 13.
Certain defects
of form not to
vitiate indict-
ments.
K. S. 137, § U.
1858, 23.
6 Greenl. 148.
2 Mass. 110.
7 Mass. 9.
11 Mass. 279.
5 Pick. 44.
4 Cush. 141.
11 Cush. 547.
Prosecutions
under by-laws
may be iliseon-
tiniietl by order
of selectmen,
&c.
1853, 179, § 2.
Sect. 15. The juiy shall tiy, according to established forms and prin-
ciples of law, all criminal causes committed to tliem, and after having
received the instructions of the court, shall decide, in their discretion,
by a gener.al verdict, both the fact and the law involved in the issue,
or may at their election find a special verdict. The court shall superin-
tend the course of tlie trials, decide uiion the admission and rejection
of evidence, and upon all questions of law raised during the trials, and
u]3on all collateral and incidental jjroceedings, and shall also charge
the jury.
Sect. 16. When a person indicted for a felony is on trial ac<juitted
by the verdict of part of the ofience charged, and convicted of the res-
idue, such verdict may be received and recorded by the court, and
thereupon the person indicted shall be adjudged guilty of the offence, if
any, which appears to the court to be substantially charged ]>y the
residue of the indictment, and shall be sentenced and punished accord-
ingly.
Sect. 17. "When a person indicted for an offence is on trial acquitted
by the jury, by reason of insanity, the jury, in giving their verdict of not
guilty, shall state that it was given for such cause, and thereupon if his
discharge or going at large is deemed manifestly dangerous to the peace
and safety of the community, the court may order him to be committed
to one of the state lunatic hospitals ; otherwise he shall be discharged.
Sect. 18. No prisoner or person under recognizance, who is acquitted
by verdict, or discharged because no indictment has been found against
him, or for want of [irosecution, shall be liable for any costs or fees of
office, or for any charge for subsistence while he was in custody.
Sect. 19. No indictment, and no complaint before a justice of the
peace or police court, shall be quashed or deemed invalid, nor shall the
judgment or proceedings thereon be arrested or affected, by reason of
the omission or misstatement of the title, occupation, estate, or degi-ee,
of the defendant, or of the name of tlie city, town, count)', or ]>lace, of
his residence; nor by reason of the omission of the words "force and
arms," or the words " against the peace," nor by reason of omitting to
charge any offence to have been committed contrary to the form of the
statute or statutes : provided, that such omission or misstatement does
not tend to the prejudice of the defendant.
Sect. 20. In all prosecutions before a police court or justice of the
peace, under the by-laws of a city or town, the city solicitor, or other
person appointed by the board of aldermen or selectmen of such city or
town, m;iy enter a /lol/c jyi'osequi, or do any other matter or thing which
may be done by a district-attorney in criminal prosecutions.
CHAPTER 173,
OF appeals, new trials, and reports.
APPEALS.
Section
1. Appeal from conviction before justices of
peace, &c.
12. Witnesses to be recognized, &C.
3. .lustice's duty, &c. Fees, how paid.
4. Appellant not required to .advance fees, &c.
5. If appeal not prosecuted, appelLant to be
sentenced.
^. When on a forfeited recognizance a penalty
accrues to a person, it may be awarded by
court.
new truls.
Section
7. New trials, bow granted, &c.
EEPOKT9.
8. Reports of cases by judge.
9. Person convicted to recognize.
10. if he does ni>t, to remain in prison, until,
&c. Proeee<lings in such case. IVrson not
to be deprived of writ of error.
Chap. 173.] nkw trials, eeports, &c., in criminal cases. 843
APPEALS.
Section* 1. Every person convicted of an offence before a justice of Appoai from
the peace or police court, may appeal from the sentence to the su])erior fo"yj[','J"j".s'of
coiut then next to be held in the same county. The appellant shall be of iieaf.-, &c.
committed to abide the sentence of said court until he recognizes to the Kli.'sfi!**"
commonwealth in such reasonable sum and with such sureties as the S" I' "^.li^i*?'
ju.stiee or court requires, with condition to ajijiear at the court appealed i845Vini5,'§:i.'
to, and at any subsequent term to which the case is continued, if not J^H'ine
jireviously surrendered and discharged, and so from term to term, until 3 Gray. •>■<••
the final decree, sentence, or order of the court thereon, and to abide ? oraj? ;]{;;
such final sentence, order, or decree, and not depart without leave, and
in the mean time to keep the ]ieace and be of good behavior.
Sect. 2. On such appeal the justice or court shall have the same witnesses to be
authdrity to bind by recognizances witnesses in the case, as they have J^o°i3u'"^' *°'
by clia])ter one hundred and seventy when a prisoner is admitted to bail
or committed.
Sect. 3. The justice or court sliall on such ajipeal make a copy of .justice's duty,
the conviction and other proceedings in the case, and transmit the same, iH"^- .
, -11 • -^.1 11,., I' ^^^i now paid.
together with the recognizance, it any is taken, to the clerk ot tlie court k. s. i;t^, §2.
appealed to. The fees of the justice therefor shall be paid from the ' ^''' "*'
county treasury in like manner as other costs in criminal ])rosecutions.
Sect. 4. The appellant shall not be required to advance any fees Appellant not
upon claiming his appeal, nor in j)rosecuting the same, but if convicted vancc feo8°&c
in the court ajipealed to, or if sentenced for failing to prosecute his ap- K. s. i3s, §3. '
peal, he may be required, as part of his sentence, to pay the whole or
any part of the costs of prosecution.
Sect. 5. ■ If the appellant fails to enter and prosecute his appeal, he if appeal not
shall be defaulted on his recognizance, if any was taken, and the su- pdiant'to'bJ'''
perior court may award sentence airainst him for tlie oflence whereof he seutenccd.
was convicted, in like manner as if he had been convicted in that court; issg.isio. "
and if he is not then in custody, process may be issued to bring him
into court to receive sentence.
Sect. 6. When upon suit brought on a recognizance to prosecute when on for-
an appeal, the penalty is adjudged to be forfeited, or when, by leave of zanc'c polity
court, such penalty has been paid to the county treasurer or the clerk accrues to a
of the court without a suit, or before judgment is given as provided in be'a^"ai■decl'by
chapter one hundred and seventy, if by law any forfeiture accrues to a g''|*'j3g =g
person by reason of the offence of which the apjiellant was convicted,
the court may award to him such sum as he may be entitled to out of
the forfeiture.
NEW TRIALS.
Sect. 7. The supreme judicial court and superior court may at the Newtriais.how
term in which the trial of any indictment is had, or within one year |'^''s.'|^; f.36.
thereafter, on the petition or motion in writing of the defendant, granl k. s.so, §11.
R S 138 S II
a new trial for any cause for which by law a new trial may be granted; 1855,152.
or when it appears to the court that justice has not been done: and on J^S'v'^l'.-
1 1. . 1 n T 1 Met. -428
such terms or conditions as the court shall direct.
EEPORTS.
Sect. 8. If, upon the trial of a person convicted in the superior Eeports of
court, any question of law arises which, in the opinion of the presiding J^^l' i^^ §"i|f'
judge, is so important or so doubtful as to require the decision of the is59, 196.
supreme judicial court, he shall, if the defendant desires it or consents
thereto, report the case, so fiir as may be necessary to present the ques-
tion of law arising therein; and thereupon all further proceedings in
that court shall be stayed.
844
JUDGMENT AND EXECUTION IN CRIMINAL CASES. [ChAP. 174.
Person to re-
cognize.
E. S. 138, § 13.
if he docs not,
to remain in
prison until,
&c. Trocced-
ing:a in such
case.
Party may have
his writ of
error.
K. S. 138, § H.
1850, 19li.
7 Grav, 317.
Sect. 9. Any person for whose benefit a report is made as is pro-
vided in the preceding section, or who files exceptions, m;iy recognize
to the commonwealth in such sum as the court shall order, with suf-
ficient sureties, for his personal appearance at the sujireme judicial court
next to be held for tlie same county, and to enter and prosecute his
exceptions with efiect, and abide the sentence thereon, and in the mean
time to keep the peace and be of good behavior.
Sect. 10. If such person does not so recognize, he shall be com-
mitted to prison to await the decision of the supreme judicial court ;
and in that case, the clerk of the court in which the conviction was had
shall file a certified copy of the record and proceedings in the case, in
the supreme judicial court. The court shall have cognizance thereof and
consider and decide the cause in the same manner as it decides questions
of law reserved by one of the justices of that court, shall render such
judgment, and award such sentence, or make such order thereon, as law
and justice require ; and a new trial may be ordered at the bar of the
supreme jmhcial court, or the cause may be remanded to the superior
court for a new trial there, as the justices of the supreme judicial court
shall direct. But the proceedings lierein prescribed shall not deprive
any party of his writ of error for any error or defect appearing of record.
CHAPTER 174.
OF JUDGMENT AND EXECUTION.
Sentence where
no punishment
is provided.
R. S. i;i[), § 1.
2-3 Pick. IJSO.
2 Met. 411.
to imprison-
ment for as-
saults, &c.,may
be with costs.
1854, 328, § 2.
Person convict-
ed under chap-
ter SO to pay
coatfl.
185."*, 215.
Courts may sen-
Sectiox
1. Sentence where no punishment is provided.
2. to imprisonment for assaults, &c., may
be with costs.
3. Person convicted under chapter eighty-six
to pay costs.
4. 5. Courts may sentence to jail or house of
correction.
6, 7. Conditional sentences.
8. Court may impose fine or imprisonment,
except, &c.
9. Miijjistrate to certify if convict is unable to
pay fine, &c.
10. Sureties for peace may be required in cer-
tain cases.
11. Proceeding's on forfeiture of recognizance.
12. Sentence of female convicts with infants.
13. of boys under sLxteeu.
14. of females.
15. of juvenile offenders.
IG. convicts not before sentenced.
17. No sentence to state prison for less than
one year.
Section 1. In cases of legal conviction, where no punishment is
provided by statute, the court shall award such sentence as is conforma-
ble to the common usage and practice in this state, according to the
nature of the offence, and not repugnant to the constitution.
Sect. 2. Whoever is sentenced to imprisonment for any offence men-
tioned in section thirty-eight of chapter one hundred and twenty, may
in addition to the imprisonment be sentenced to pay the costs of j^rosc-
cution.
Sect. 3. "Whoever is convicted of an offence under the provisions of
chapter eighty-six shall be sentenced to pay the costs of prosecution.
Skct. 4. Whoever is convicted of an offence punishable wholly or
in part by imprisonment in the jail, may be sentenced to suffer such
Section
18. Solitary imprisonment to precede hard la-
bor, unless, &c.
10. Offices forfeited by commitment to state
prison.
20. Sheriff to execute sentences.
21. liemoval of convict to state prison.
22. Officer to return precept to magistrate and
leave copy with jailer, &c.
23. When convict imprisoned is again BCn-
tenced, warrant to be served by keeper
where Iield.
24. Proceedings on conviction of a capital of-
fence.
25. when convict has become insane, or when
female convict is quick with child.
'2Ct, 27. Sentence of death, how executed.
28. Sheriff's return on warrant for execution.
29. Corporations failing to appear may be de-
faulted, &c.
Warrants of distress may be issued.
I
30.
Chap. 174.] judgment and execution in criminal cases. 845
imprisonment in the house of correction instead of the jail, or to suffer tcncc to jail or
solitary imprisonment and be confined at hard labor either in the jail or Jl^'j^c of correc
house of correction. .; Jict. 4111. -nut. 3m. e. s. i«, §17.
Sect. 5. Whoever is convicted of a crime punishable Ijv fine and Same subject,
liable to imprisonment in the jail for the non-pavniont of fine and costs '®*5' ''*•
of prosecution, may be sentenced to suffer such imprisonment in the
house of correction instead of the jail, and confined at hard labor
either in the jail or house of correction.
Sect. 6. When a person is convicted of an offence punishable at the Conditional
discretion of the court, eitlier by fine or imprisonment in the jailor ^{''''^''"w/'s 2
house of correction, or by fine or imprisonment in the state jirison, the -'■' Pick- sso.
court or justice may award against such offender a conditional sentence, 5 Met! 500! *''*'
and order him to pay a fine with or without the costs of prosecution,
within a limited time to be expressed in the sentence, and in default
thereof to sutter sucli imprisonment as is provided by law.
Sect. 7. The person against whom any such con<litional sentence is Same subject,
awarded sh.all be forthwith committed to the custody of an officer in k. s. i:)ii, §3.
court or to the jail, to be detained until the sentence is comj>lied witl; ;
and if he docs not ])ay the fine and costs ini])Osed within the time lim-
ited, the sheriff shall cause the other part of tlie sentence to be executed
forthwith.
Sect. 8. When it is provi<led that an offender shall be juniishcd by court may im-
imiirisonment in the iail and a fine, or l)v imiirisonment in tlie liouse i'"."'^^ '"■'■ or im-
ot correction and a fine, such offender, unless convicted under chapter except, &c.
eighty-six, may at the discretion of the court Ijc sentenced to be pun- 1855,' 215',' I39.
ished by such imprisonment without the fine, or by such fine without
the imprisonment.
Sect. 9. When a person is ordered to Ise imprisoned for non-pay- Magistrate to
mcnt of a fine, or fine and costs, not exceedinc: twentv dollars, the court fortify, if con-
, . , . 1 n • • 1 1 '1- ^*ct 19 unable to
or magistrate ordering such commitment shall inquire as to tiie aliility pay fine, &c.
of the defendant to pay the same, and if it appears that he is unable, it ^'' ^^' "*"' ^ ''
shall be so certified upon the mittimus.
Sect. 10. Every court before which a jierson is convicted upon an Sureties for
indictment for any offence not jninishable with death, or by imprison- roquired'm''cer-
ment in tlie state prison, may, in addition to the punishment prescribed tain cases.
bylaw, require such person to recognize with sufficient sureties in a -S-isa, §5.
reasonable sum to keep the peace, or to be of good behavior, or both,
for any term not exceeding two years, and to stand committed until he
so recognizes.
Sect. 11. Such recognizance shall be filed of record in the superior ProceetUngs on
court, and in case of a breach of the condition, the same proceedings Jeeo<TiizaiI«
shall be had as are prescribed in chapter one hundred and sixty-nine in R. s? i.ik, § c.
relation to recognizances to kee]) the peace and be of goo<l behavior.
Sect. 12. When a female with a nursing infant is convicted of an Sentence of fc-
offence punishable by imjirisonment in the house of correction, the court ™jtii Jnfants!'
or justice liefore whom the conviction takes place may sentence her to issi, -iic., §§i,4.
some workhouse or house of industry in the county; and for her sup- " '
port and custody there shall be ]5aid from the county treasury two
dollars a week to the town in which the sentence is executed.
Sect. 13. If a boy under the age of sixteen years is convicted of an of boys under
offence jnmishalile by imprisonment in the state prison, he not having e!'s!T«, §18.
been before sentenced to imprisonment in the state prison in this .state, 2Met. 4iu.
or in any state prison or penitentiary within the LTnited States, the
com't, if sentence of solitary im]jrisonment and confinement at hard
labor for a term not exceeding three years is awarded against him, shall
order such sentence to be executed against him in the jail, and not in
the state prison.
Sect. 14. When sentence of confinement at hard labor for any term of females,
of time is awarded against a female convict of whatever age, the court iz'cush.'^a;. '
71*
846
JUDGMENT AND EXECUTION IN CRIMINAL CASES. [ChAP. 174.
Spntoiice ofju-
venilcofleud-
K. (3. 143, § 18.
1845, 247.
1852, 25.S.
of convicts
uot before sen-
tenced.
K. S. 143, S 10.
4 Met. 302, 308.
No sentence to
state prison for
less than one
year.
U. S. 1.39, § 9.
Solitary impris-
oumi'iii to pre-
ei'ile hard labor,
unless, &c.
R. S. 139, §8.
4 Met. .31)1.
5 Met. 533.
11 Met. 5;Ci.
Offices forfeited
by eomniitnient
to state prison.
E. S. 141, §31.
shall order such sentence to be executed either in the house of correc-
tion or jail, and not in the state prison.
Sect. 15. Nothing in the General Statutes shall prevent the coui-t
from sentencing juvenile convicts to confinement in any place in which
they may he by law confined.
Sect. 16. When the punishment of solitary imprisonment and con-
finement at hard labor for a term not exceeding three yeai-s is awarded
by the court against a convict who has not been before sentenced to
the like punishment by any court in this state or within the United
States, such sentence maybe executed either in the house of correction,
jail, or state prison.
Sect. 17. Convicts shall not be sentenced to imprisonment in the
state prison for a less time than one year.
Sect. 18. "When the pimishmeiit of imprisonment in the state prison
is awarded against a convict, the form of the sentence shall be, that he
be punished by confinement at hard labor, and he shall also be sen-
tenced to solitary imin'isoiiment for such term as the court shall direct,
not exceeding twenty days at one time ; and in the execution of such
sentence, the solitary imprisonment shall precede the punishment by
hanl labor, unless the court otherwise ordei-.
Sect. 19. Wlien a convict sentenced by any court of this state or
of the United States to imprisonment in the state prison, at the time of
conviction and sentence holds an ofiice under the constitution or laws
of this state, such ofiice shall be deemed to be vacated from the time
of his sentence; and if the judgment against him is reversed upon writ
of error, he shall be restored to his ofiice witli all its rights and emolu-
ments, but if ]5ardoned, he shall not by reason thereof be restored,
unless it is so expressly ordered by the terms of the pardon.
Sect. 20. "When a person convicted of an ofl'enee is sentenced to
pay a fine or costs or be imprisoned in the jail or house of correction,
the clerk of the court shall, as soon as may be, make out and deliver to
the sherifl:" of the county, or to some oflicer in court, a transcri])t from
the minutes of the court of such conviction and sentence, duly certified
by such clerk, which shall be a sufiicient authority for the sherifl:' to ex-
ecute such sentence, and he shall execute it accordingly.
Sect. 21. When a convict is sentenced to imprisonment in the state
prison, the clerk of the court shall make out a warrant, under tlie seal
of the court, directed to the warden of the prison, requiring him as soon
as maybe to cause such convict to be removed from the jail to the state
piisou ; and the clerk shall also annex to the warrant a certified tran-
script of such conviction and sentence, and shall deliver the warrant
and transcrijit to the sherifl' of the county, who shall cause the same to
be transmitted and delivered to the warden, to the end that the warden
may, by himself or such j)erson as he may appoint for that purjiose,
cause the warrant to be duly executed, by the removal of the convict
to the state prison in the manner ])rescribed in chapter one hundred and
seventy-nine. And unless his sentence is limited to take eft'cct upon
the expiration of a previous sentence, it shall be computed from the
time he is ordered to remain in the custody of the sheriff.
Sect. 22. An officer who executes sentence in a criminal case shall,
"i?tnite','Vmi Without charging travel therefor, return the precept with his doings and
leave copy with fg^g indorsed tliercou to the court or magistrate issuing it, who shall tax,
1859,233.' allow, and certify the fees as a part of the costs in the case. Incase
of commitment the oflicer shall leave with the jailer or keeper of the
jirison an attested cojiy of the precept, with his return thereon, which
shall be a suflieient warrant for the detention of the party committed.
When convict Sect. 23. When a convict imprisoned under sentence of a court is
aga'in^s'en^'' '" again sentenced to confinement in a prison other than that in which he
tcuced, warrant is then held, the warrant for his commitment in pursuance of the second
Sheriff to exe-
cute sentences.
R. S. 1.39, § 7.
Removal of con-
vict to state
prison.
K. .S. 1.39, § 10.
1859, 24b.
See Ch. 179, §24.
Officer to re-
turn precept to
Chap. 174.] judgment and execution in criminal cases. 847
sentence shall be placed in the hands of the warden or keeper of the to be served by
prison in which the convict is held, and it shall be the duty of said i^eid"^' where
warden or keeper, upon the expiration of the first sentence, to commit
the convict in obedience to said warrant.
Sect. 24. When a person is convicted of a crime for which sentence Procecmngs on
of death is awarded against him, the clerk of the court shall as soon as "■onyictiou of a
maybe deliver to the sheriff of the county a certified copy of the whole i?. s.'ists §"ii.'
record of the conviction and sentence, and the sheriff shall forthwith
transmit the same to the governor, and the sentence of death shall not
be executed ujjon such convict until a warrant is issued by the gov-
ernor, with advice of the council, under the great seal, with a copy of the
i-ecord thereto annexed, commanding the sheriff to cause execution to
be done ; and the sheriff shall thereupon cause to be executed on such
convict the juilgment and sentence of the law.
Sect. 2.5. If it appears to the satisfaction of the governor and coun- when convict
cil, that a convict under sentence of death has become insane, the war- has become in-
V ., , . . 1 1 1 1 • ,. 1 , , . -, saue, or when
rant tor his execution may he delayed, or it the warrant has been issued, female convict
the execution thereof may be resjiited from time to time, so long as the oi,il!]"''^ "'*
governor and council think proper. If a female convict under sentence it. s. i39, § 12.
of death is quick with child, the governor and council shall forbear to
issue a warrant for her execution, or if such warrant has been issued,
the execution thereof shall be respited, until it appears to the satisfac-
tion of the governor and council that she is no longer cjuick with child.
Sect. 26. The punishment of death shall in every case be inflicted Sentence of
by hanging the convict by the neck until he is dead, and the sentence executed^
shall, at; the time directed by the warrant, be executed within the walls E- S' i3ft,'§i3.
of a prison of the county in which the conviction was had, or within n cus'ii. ooi.
the enclosed yard of the prison.
Sect. 27. The sheriff of such county shall be present at the execu- same subject,
tion, unless he is prevented by sickness or other casualty, and also two ^'"*'' **■''§**•
of his deputies, to be designated by him, and he shall request the
presence of the district-attorney, clerk or clerks of the county courts,
and twelve reputable citizens, including a physician or surgeon. He
shall permit the counsel of the criminal, such ministers of the gospel as
the criminal desires, and his relations, to be present, and also such offi-
cers of the prison, deputies, and constables, military guard, or other
assistants, as he sees fit.
Sect. 28. When a sheriff inflicts the punishment of death upon a sherift's re-
convict in obedience to a warrant from the governor, he shall as soon as *",''.? forexeou-
maj' be make return thereof under his hand, with his doings therein, to tion-
the secretary's office. He shall also file in the clerk's office of the court "' ^' "^' §'^-
where the conviction was had, an attested copy of the warrant and re-
turn ; and the clerk shall subjoin a brief abstract of such return to the
record of the conviction and sentence.
Sect. 29. When a coriioration indicted under the statutes of this Corporations
state tails to appear after being duly served with i)rocess, its default pear^mavbe
shall be recorded, the charges in the indictment taken to be true, and Uefauitcci, &c.
1 W^ 1 ^>1^ ^ 1
judgment shall be rendered accordingly. '
Sect. 30. When judgment is rendered upon any such indictment Warrants of
against a coqjoration, the court may issue a warrant of distress to com- fisaci^ ""''' '"'
pel the payment of the penalty prescribed by law, together with costs i85i, sis, §2.
and interest.
848'
INQUESTS ON DEAD BODIES.
[Chap. 175.
CHAPTER 175.
OF INQUESTS ON DEAD BODIES.
Section
1. Coroners' inquests, when to be taken.
2. Warrant to constable to summon jury,
3. Penalty on constables or jurors for nejjlect.
4. Talesmen. Oath, &e., of jurors.
5. Witnesses, how summonerl, &c.
6. Inquisition may be secret, and witnesses
examined separately.
7. Oath of witnesses.
8. Testimony, how taken, &c.
9. Inquisition, how taki'u and what to contain.
10. Coroner's duty in case of a murder, Ac.
Section
11. Coroner's duty in ease of a murder, &e.
12. Compensation of clerk, surgeon, tte.
13. Expenses of bringing to land bodies found
in harbors, &c.
H. Coroner, when to bury the body, &c. Ex-
penses, how paid.
15. E-vpenses, how returned, audited, cei-tiOed,
and paid.
16. Where no coroner, justices of peace to act.
17. Coroners to take charge of money, &c.,
found on the body.
Coroners' in-
quests, wlieu to
be taken.
E. S. 140, § 1.
1849, 172, § 1.
See Ch. 63, §100.
Warrant to con-
stable to sum-
mon jury.
E. S. 140, § 2.
1849, 172, § 1.
1859, 215.
Form of war-
rant.
Penalty on con-
stables or ju-
rors for neglect,
E. S. 140, § 3.
1852, 312.
Talesmen.
Oath, &c., of
jurors.
E. S. HO, § 4.
Section 1. Coroners shall, upon being authorized as proviclerl in the
following section, take inquests, upon the view of the dead bodies of such
persons only as are supposed to have come to their death by violence :
jjrovided, that in all cases of death by accident upon a railroad an inquest
shall l)e held.
Sect. 2. As soon as a coroner has notice of the dead body of a person
found or lying within his county, supposed to have come to his death by
violence, he shall repair to the place where the dead body is, and take
charge of the same ; and if on view of such body, and personal inquiry
into the cause and manner of the death, he deems it necessary that an
inquest should be taken, he shall, upon being thereto authorized in
writing by the attorney-general, or the district-attorney of the district,
mayor or chief of police of the city, or selectmen of the town in wliich
such body is found, make his warrant to a constable of the town or city
where the dead body is, or to a constable of an adjoining town or city
in the county, requiring him forthwith to summon six good and lawful
men of the county to appear before such coroner at a time and place
expressed in the warrant, which shall be in substance as follows: —
in the coiintv of •
Greeting.
To cither of the constables of ■
In the name of the Commonwealth of Massachusetts, you are hereby required
immediately to summon six good and lawful men of the county of to appear
before me, , one of the coroners of said county, at the dwelling-house of ,
(or at a place called ,) within the town of , at the hour of , then
and there to inquire, upon the view of the body of —
how, and by what means, he came to his death. Hereof fail not.
Given under my hand the day of , in the year
there lying dead, when,
Coroner.
Sect. 3. The constable shall forthwith execute the warrant, and at
the time mentioned therein shall repair to the jilace where the deail body
is, and make return thereof, and of his doings thereon, under his hand to
the coroner. A constable who unnecessarily neglects or fails to execute
or return such warrant, shall forfeit ton dollars ; and whoever summoned
as a juror fails to a|)]iear, witliout reasonable excuse therefor, shall forfeit
seven dollars ; whicli forfeitures may be recovered to the use of the
county, by an action of tort to be brought by the coroner.
Sect. 4. If the six jurors returned do not all appear, the coroner may
require the constable, or any other person whom lie appoints, to return
jurors from the bystanders to complete the number, but no person shall
serve on such jury ofteiier than once in twelve months. The coroner,
in view of the botly, shall administer to the jurors thus summoned and
returned the following oath : —
You solemnly swear, that you will diligently inquire and true presentment make,
on behalf of this commonwealth, when, how, and by what means, the person whose
Chap. 175.] inquests on dead bodies. 849
body lies here dead came to his death ; and you shall return a true inquest thereof,
according to your knowledge and such evidence as shall be laid before you ; so help
you, God.
Sect. 5. The coroner m.iy issue subpoenas for witnesses, returnable ■WitncsscB.how
forthwith or at such time and phice as he shall therein direct. The per- K.'s™iwr§'5- "'
sons served with such subpoenas shall be allowed the same fees, and their
attendance may be enforced by the coroner in the same manner, and they
shall be subject to the same penalties, as if they had been served with a
subpoena in behalf of the commonwealth, to .attend a justice's court.
Sect. 6. The coroner, with the consent of a m.ijority of the jury, may inquisition may
order the inquisition to be secret; in which case he may exclude from ^vltncsses cx-
the place where the inquisition is taken any or all persons other than amined sepa-
those required to be present by the provisions of this chapter ; and during 1850,^133, § 1.
the examination of a witness, m.iy exclude fi'om the place of examination
all other witnesses, and may also direct the witnesses to be kept sep-
arate, so that they cannot converse with each other until they have been
examined.
Sect. 7. An oath to the following eifect shall be administered by Oathofwit-
the coroner to the witnesses : — i{!*s!V40, § 0.
You solemnly swear, that the evidence which you shall give to this inquest,
concerning the death of the person here lying dead, shall be the truth, the whole truth,
and notlung but the truth ; so help you, God.
Sect. S. The testimony of all witnesses examined before any inquest, Testimony,
shall be reduced to writing by the coroner, or some person by his direc- j" § 'im,"? f"'
tion, and subscribed by the witnesses. sec § 12. '
Sect. 9. The jury, upon the inspection of the dead body, and after inquisition,
hearing the testimony of the witnesses and making all needful inquiries, IvhaMoco™
shall draw up and deliver to the coroner their inquisition under their ta>":
hands, in which they shall find and certify, when, how, and by what ' '
me.ans, tlie deceased person came to his death, his name if it was known,
together with all m.aterial circumstances attending his de.ath ; and if it
ap])ears that he was murdered, the jurors shall further state who were
guilty either as principal or accessory, if known, or in any manner the
cause of his death ; which inquisition may be in substance as follows : —
Commonwealth of JIassachusetts.
, ss. Form of inqui-
An inquisition taken at in the county of , on the day of , sition.
in the year , before , one of the coroners of said county of , upon
the view of the body of (or a person) there lying dead, by the oaths of the
jurors, whose names are hereunto subscribed, who, being sworn to inquire on behalf
of said commonwealth, when, how, and by what means, said (or person) came
to his deatli, upon their oaths do say, (insert when, how, and by what persons, means,
weapon, or instrument, he was killed.) In testimony whereof, said coroner and the
jurors of this inquest have hereunto set their hands, the day and year aforesaid.
Sect. 10. If the jury find that a murder, manslaughter, or assault. Coroner's duty
was committed on the deceased, the coroner shall bind over by recog- muTder^&c.
nizance such witnesses as he thinks proper, to .ajipear and testily at the k. s. wo, §9.
next court to be held in the same county at which an indictment for
such oifence can be found, and may commit to the jail any witnesses
who refuse to recognize in such manner as he directs. He shall return
to the same court the inquisition, written evidence, and .all recognizances
and examinations by him taken.
Sect. 11. If a person charged by the inquest with having committed Same subject,
such oflence is not in custody, the coroner shall have the same power as ' '
a justice of the peace to issue process for his .apprehension, and such
warrant shall be made retuiTiable before a justice of the peace, or other
magistrate or court having cognizance of the case, who shall proceed
therein in the manner required of justices of the peace in like cases.
Sect. 12, A person who reduces the testimony to writing by direc- compensation
107
850
FINES, FORFEITURES, AND COSTS.
[Chap. 176.
of clerk, Bur-
geon, &c.
1850, 133, § 2.
1858, 31, § 1.
Expenses of
briu^'iuLr to
land bodies
found in har-
bors, &c.
1S50, 133, § 4.
Coroner, when
to bury the
body, &c.
Costs, how
paid.
K. S. 140, § 11.
1858, 31, §5 1, 2.
Expanses, how
returned, au-
dited, certilied,
and paid.
185S, 31, § 1.
Where no coro-
ner, justices of
peace to act.
1850, 133, §5.
Coroner to take
chargfc of
money, &c.,
found on the
body.
tion of the coroner pursuant to section ciglit, shall be allowed for his
services such sum as the coroner determines, not exceeding one dollar
and fitly cents for each day's actual attendance upon the jury. A sur-
geon or chemist who aids in the examination on the determination of
the coroner that such aid is necessary, shall be entitled to such compen-
sation for Ins services as the coroner certifies to be just .and reasonable,
the same being audited and allowed in the manner provided in section
fifteen.
Sect. 13. When services are rendered in bringing to land the dead
body of a person found in any of the harbors, rivers, or waters, of this
state, the coroner may allow such coni]iensation for said services as he
deems reasonable ; but this section shall not entitle any person to allow-
ance for services rendered in searching for such dead body.
Sect. 11. When a coroner takes an inquest upon the view of the
dead body of a stranger, or being called for tliat purpose does not deem
it necessary on view of such body that an inquest should be taken, he
shall cause the body to be decently buried, unless its dissection has been
allowed by lawful authority ; and if the coroner certifies that, to the
best of his knowledge and belief, the person found dead is a stranger not
belonging to this state, the expenses of burial and of the inquisition, if
any is taken, and other necessary expenses, with the coroner's fees, shall
be paid from the state treasury. In all other eases the expenses of the
burial shall be paid by the town or city where the body is found, and all
other exi)enses by the county.
Sect. 15. The coroner shall return an account of the expenses of
each inquest, or view, including his fees, to the county commissioners
having jurisdiction over the place where the inquest or view is held, or
in Boston to the city auditor, and shall annex thereto the written author-
ity under wliich the inquest was held. Such commissioners or auditor
shall .audit such accounts and certify to the treasurer of the common-
wealth, or the treasurer of the county, as the case demands, what items
tiierein are deemed just and reasonable, which shall be paid by said
treasurers to the persons entitled to receive the same.
Sect. 16. When the dead body of a person supposed to have come
to his death by violence is found in any town or city in this state in
which no coroner duly qualified resides, any justice of the peace, within
his county, shall have the Uke powers, and execute and discharge the
same duties as are herein imposed upon coroners, and shall be entitled
to the same fees as coroners for like services.
Sect. 17. In all cases under this chajiter, the coroner shall take
charge of any money or other personal proiierty of the deceased, found
upon or near the body, .and deliver the same foithwith to those entitled
to its care or possession, but if not claimed within sixty days, then to
the public administrator, to be administered upon according to law.
CHAPTER 176.
OF FINES, FORFEITURES, AND COSTS.
Section
1. Fines, &c., to be paid into Bt,ate treasury.
2. how recovered.
3. Justices of peace to return fines and for-
feitures.
4. Two-thirds of criminal costs paid by state ;
one-third by counties.
5. Duty of justices of peace in taxing costs.
Section
6. Same subject. Justice may retain his own
fees.
7. Costs, how certified by justice on appeal,
&c.
8. in S. J. C. and superior court, how taxed,
certified, and returned.
9. Fines, costs, &c., to be paid to sheriffs.
Chap. 176.]
AND COSTS.
851
Section
aud by them to be paid to county treas-
urers.
10. Sheriff sulTering escape, to pay fines, &c.
11. Remedy against sheriff for neglecting to
pay over tines, &c.
12. Payments to deputy or jailer ralid.
Section'
13. Sheriffs to make semiannual returns. Pen-
alty.
14. Semi-innual accounts of county treasurers.
15. Treasurers' accounts, how audited, &c.
IG. Annual returns of, to governor and council.
17. Costs to be paid by county treasurer if de-
manded within three years, otherwise, &c.
Section 1. All fines and forfeitures recovered in prosecutions of Fines, &c., to be
whicli any part of the costs are jKiid by the commonwealth, and all fines freasury. ^'""^
and forfeitures imposed as a punishment for any oflence, or the violation R- s. im, §14.
or neglect of any duty imposed by statute, shall, where no other provis- ]S5V9i,§24.
ion is especially made by law, be paid into the treasury of the common- l^^^fik^-
wealth. 2 Grayi -128.'
Sect. 2. All fines and forfeitures mentioned in the preceding section, imw recor-
or expressly appropriated to the use of the commonwealth, or any J["il' ,], 5^,
county, city, or town, may, unless otherwise especially provided by law, H-.J- iss, §1-*.
be prosecuted for and recovered by indictment in tlie superior court; isosl 45r§§ 1, 2.
or when the amount or value thereof does not exceed one hundred dol- ^^^> ^^■
lars, by complaint before a jjolice court, or when it does not exceed fifty
dollars, by complaint before a justice of the peace, who shall respec-
tively have such jurisdiction concurrently with the superior court ; or the
same may be recovered in an action of tort.
Sect. 3. Justices of the peace shall, on or before the fifteenth day justices of
of October annually, return to the secretary of the commonwealth a Jjae^andTo^™
sjiecific account of all fines and forfeitures received by them to the use '•''''"■'^s.
of the commonwealth or other public authority. isss, 46. is57,4o. '
Sect. 4. Two-thirds of all legal costs and expenses arising in crimi- Two-tiiirds of
nal prosecutions, including the fees of grand and traverse jurors for pa™'by'state^
travel and attendance therein, unless paid by the paity prosecuted, shall one-tiiird by '
be paid by the commonwealth as hereinafter provided, and the other i,2|'"V47§ 1.
third by the respective counties in which thev occur; but no part of the ims, 22;.
costs arising under any prosecution tor the violation ot a by-law ot a 10 Cush. 495.
city or town shall be paid by the commonwealth. •
Sect. 5. In criminal prosecutions instituted before justices of the Duty of justices
peace, in which a warrant is duly served and returned before them and [Ii'J'cos'tsr '"^
they render judgment, they shall tax the legal costs arising therein and f\^-}i}'^?-
certify their allowance of the same, and in cases where the warrant is " ' '
not served, they may allow to the ofiicer and tax and certity such costs
as they deem proper.
Sect. 6. In cases in which justices of the peace exercise final jurisdie- Same subject,
tion in criminal prosecutions, "they shall certity the costs by them taxed I'lll^'jlis "vn "^"^
and allowed, to the next superior court, which taxation shall be examined fees.
by the court or its order, the errors therein corrected, and the costs al- isja.'ige.
lowed and made up in the general bill of costs for the same term of the
court : jvoinded, that wdien a ])erson convicted before a justice of the
peace, and sentenced to pay the costs of prosecution, or a fine and costs,
complies with the sentence, the costs, or fine and costs, shall be paid to
the justice, who may retain his own fees and pay the residue of the costs
to the officer and witnesses or other persons entitled thereto ; otherwise
such costs and the fine shall be jtaid to the treasurer of the county, city,
or town, in the manner directed in chapter one hundred and twenty.
Sect. 7. In criminal prosecutions which are can'ied to the superior costs, how cer-
court by appeal, and in cases where a person is bound by recognizance oi?appJai"&J!^
or committed for want of sureties by a justice of the peace or police R- s. hi, '§4.
court, to answer in the superior court, the costs shall be taxed, and cer- ^^^' ^^^'
titied with the papers to the court, and shall be there allowed and taxed
in the costs of prosecution.
Sect. 8. All costs arising in criminal prosecutions in the supreme g "J;^' ^q^*
judicial court, or superior court, shall be taxed by the prosecuting officer, how taxed, cer-
852
FINES, FORFEITURES, AND COSTS.
[Chap. 176.
tified, and re-
turned.
R. S. 141, §8.
itrta, Gi, § 1.
Fines, costs,
&c., to be paid
to sheriffs, and
by tliem to
county treas-
urers.
ia57, 10?, § 1.
185fl, 19G.
2 Gray, 430.
Slieriff suirer-
ing escape to
pay fine, &c.
185/, lur, § 1.
Remedy against
sheriff for neg-
lecting to pay
over lines, Ac.
1857, 107, § 1.
Payments to
deputy or jailer
valid.
■ 1857, 107, § i.
Sheriffs to make
semiannual re-
turns.
Penalty.
1857, 107, § 3.
Semiannual ac-
counts of coun-
ty treasurers.
R. S. 141, § 10.
1&J1,74, §2.
1S4U, 5(i.
ISSa, M3.
Treasurers' ac-
counts, how au-
dited, &c.
R. S. 141, §10.
1849, 56.
annnol re-
aniil the allow.ince certified by the clerk, under the direction of the
court. Tlie clerks shall make and deliver to the treasurers of the re-
spective counties, cities, or towns, at the end of every term or as sooa
thereafter as may be, cojiies of all bills of costs which have been taxed
and allowed, and certificates of all fines imposed by the respective
courts, to the use of the commonwealth, county, city, or town ; and
they shall transmit to the treasurer of the commonwealth a certificate
of the amount of all such bills of costs, and all sums allowed by the
courts as rewards or compensations to prosecutors, with a at.atement of
all fines and forfeitures to the use of the commonwealth imposed or
awarded by the court.
Sect. 9. All fines, forfeitures, and costs, imposed or awarded in
criminal prosecutions, by the supreme judicial court, or superior court,
to the use of the commonwealth or any county, or the city of Boston,
and all sums found to be due on forfeited recognizances, sliall be certi-
fied by the clerks of said courts, under the direction of the court, to
the sherifl" of the county, who alone is authorized to receive them, and
he shall, within one month after the receipt thereof, pay the same with-
out deduction to the county treasurer.
Sect. 10. If a sherifl", having a person in his custody by virtue of
the sentence of the court, voluntarily or negligently snfters him to
escape, he shall be deemed to have received such fines, forfeitures, for-
feited recognizances, and costs, .at the time of the escape, and lield
liable to pay the same, with interest and costs of suit, in like manner as
if he had received them.
Sect. 11. If a sherifl' neglects to make such pajanent for thirty days,
the county treasurer shall sue for and recover of him, in an action of
contract, the amount of such fines, forfeitui-es, forfeited recognizances,
and costs, wth interest from the time of receiving the same, at the rate
of twelve per cent., and costs of suit.
Sect. 12. Payment to the jailer, or any deputy-sheriff", of any sums
mentioned in section nine, shall be deemed a legal and vahd payment
to the sheriff.
Sect. 13. Every sheriff shall twice in each year, on the first daj-s of
January and July, render to the treasurer, to whom said sums are made
payable, an account on oath of all sums which he has received during
the six months jireceding, for fines, forfeitures, forfeited recognizances,
and costs, and the names of the persons from whom received, and
against whom awarded ; and if a sherifl" neglects for thirty days to ren-
der such account, he shall be liable to a penalty of two hundred dollars,
to be sued for and recovered of him in the same manner as is provided
in section eleven.
Sect. 14. Every county treasurer shall twice in each year transmit
to the auditor of accounts an account upon oath, in which he shall
charge the commonwealth Avitli two-thirds and no more of all sums
taxed for costs or allowed for rewards or compensations to prosecutors
by the courts in his county, and duly certified by the clerk, since tlie
last account rendered by him; and for all such sums, the certificate of
the clerk shall be a sutHcient voucher. He shall also credit in his ac-
count the amount of all fines, forfeitures, and costs, received by liim to
the use of the commonwealth. If he fails so to jjrescnt his accounts, he
shall forfeit two hundred dollars for every ten days' neglect, to be sued
for and recovered by tlic treasurer in an action of contract.
Sect. 15. His account shall be audited by the auditor of accounts,
and he shall forthwith pay over any balance found due to the treasurer
of the commonwealth, and if a balance is found in favor of the county
treasurer, it shall u]ion the warrant of the governor be paid from the
treasury of the cominoiiwoalth.
Sect. 16. He shall annually transmit to the governor and council a
Chap. 177.]
FUGITIVES' FROM JUSTICE.
853
general account, in which he shall credit to tlie commonwealth all turns of, to
money received by virtue of warrants on the treasury, and all sums foun™'^'"'*
received for fines, forfeitures, and costs, with tlie names of the persons K. s. hi, §11.
from whom the same are received, and he shall charge all sums actually
paid by liim on account of the coimnonwealth, before the time of ren-
dering said account, and the balance sliall be credited to the common-
wealth in a new account. He shall at the same time transmit to the
governor and council a statement of all sums remaining due to any
jjcrsons on bills of costs or for any other allowance, and certified to him,
also a statement of all fines, forfeitures, and costs, remaining due to tlie
commonwealth, together with the names of the jjersons from wliom the
same are due.
Sect. 17. Each county treasurer shall ]iay over to the persons entitled Costs to brpaid
tliereto all sums taxed for costs in criminal prosecutions, or allowed by Iin.',''i""!.^,Ia;Kf."
the courts as rewards or comjjensations to prosecutors, and duly certi- ''' " itiii" tiirce
fied by the dorks: procidcJ, that such sums are demamled witliin three wi's"'&c."''^
years after the taxing or allowance tliereof; and in his general account ^^if'oT-i'iz''
transmitted to the governor and council, and also in his account trans- ' '
mitted to the treasurer of the commonwealth next after his general
account, as before provided, he shall credit to the comnaonwealtli all
such costs and allowances as have not been demanded within said three
years, or credited by him in any fomier account, and also all fees returned
to him by justices of the jjeace and police courts under section fifty-
seven of chapter one hundred and twenty ; and for neglect to comply
herewith he shall be subject to a penalty of five thousand dollars, to be
recovered by the treasurer of the commonwealth in an action of con-
tract.
CHAPTEK 177.
OF FUGITIVES FEOM JUSTICE AND PAKDONS.
fugitives from justice.
Section
1. Governor may deliver to executive of other
states fuj^^tives from justice, and may de-
mand such fugitives from executive of
other states.
2, 3. Proceedings on such demands from other
states.
4. Persons arrested to have opportunity to
apply for writ of habeas corpus.
5. Penalty on officer not affording such oppor-
tunity.
6. Fees, how paid.
7. Persons Uable to be demanded by other
states may be arrested, &c.
8. and required to recognize.
Sectiojt
9. May be committed. Proceedings on default
of recognizance, and in capital cases.
10. How proceeded with or discharged.
11. Expenses, how paid.
PARDONS.
12. Governor may grant pardons.
13. Terms of pardon, &e., to be set forth in
warrant. Bond.
14. Keepers of jails, Ac, to arrest convicts at
large contrary to terms of pardon, &c.
15. 16. Proceedings ag-iiust convicts charged
with violating conditions of pardon, &o.
17. How warrant of pardon executed.
FUGITIVES FEOM JUSTICE.
Sectiox 1. The governor of this state, in any case authorized by Governor may
the constitution and laws of the United States, may, on demand, deliver u,^".c"f*other"
over to the executive of any other state or territory any person charged states fugitives
therein with treason, felony, or other crime; or may, on application, ^Tmay'de-'
appoint an agent to demand of the executive authority of any otiier m»iid such fa-
state or territory any such oflender fleeing from the justice of tliis state : ii*ccutiTC°rf
provided, that such demand or application is accompanied by sworn ?,' ''S'' fl?*? a.
evidence tliat the party charged is a fugitive fi-om justice, and by a duly i849,'56. '
attested copy of an indictment, or a duly attested copy of a complaint i**59,8i.
made before a court or magistrate authorized to receive the same ; such
72
854
FUGITIVES FROM JUSTICE.
[Chap. 177.
Proceedings on
such demauds
from other
states.
E. S. 142, § 7.
5 Met. 516.
Same subject.
E. .S. H-i, § 7.
5 Met. 5«.
Persons arrest-
ed to Iiave op-
portunity to ap-
ply for writ of
habeas corpus.
185?, 289, § 1.
Penalty on offi-
cer not aiford-
iu;,^ such oppor-
tunity.
lSc7, 289, § 2.
Fees, how paid.
E. S. H-', § 0.
Persons liable
to be de-
manded by otli-
er stati'S may Ijl'
arrested, itc.
E. .S. H-', § S.
5 Met. a-a.
and required
to recognize,
11. S. 142, § U.
or bo cora-
mitterl. Pro-
ceedings on de-
fault o't recnj^-
nizance, and in
capital cases.
E. S. 142, §9.
complaint to be accompanieil by affidavits to the facts constituting the
offence charged, by persons having actual knowledge thereof, and such
further evidence in sup]iort thereof as the governor may require.
Sect. 2. When such demand or application is made, the attorney-
general or other jirosecuting officer shall, if the governor requires it,
forthwith investigate the grounds thereof, and report to the governor all
the material facts wliich may come to his knowledge, with an abstract
of the evidence in the case, and especially in case of a jaerson demanded,
whether he is held in custody, or is under recognizance to answer for
any offence against the laws of this state or of tlie United States, or by
force of any civil process, with an opinion as to the legality or expedi-
ency of comjdying therewith.
Sect. 3. If the goxernor is satisfied that the demand is conformable
to law and ought to be complied with, he shall issue his warrant, under
the seal of the commonwealth, to some officer authorized to serve war-
rants in criminal cases, directing him at the expense of the agent making
the demand, at a time designated in the warrant, to take and transport
such person to the line of this state, and there deliver him over to such
agent, and such officer may require aid as in criminal cases.
Sect. 4. No person arrested upon such warrant shall be delivered
over to such agent of a state or territory, until he has been notified of
the demand made for his surrender and had opportunity to apply for a
writ of habeas corpus, if he claims such right of the officer making the
arrest. And when such writ is applied for, notice thereof, and of the
time and place of hearing thereon, shall be given to the attorney-gen-
eral or other prosecuting officer for the district within which the arrest
is made.
Sect. .5. An officer who delivers over to such agent for extradition
any person in his custody upon such warrant, without having comj)lied
with the jjrovisions of the preceding section, shall forfeit a sum not
exceeding one thousand dollars.
Sect. 6. If the api>lication for the arrest of a fugitive from the jus-
tice of the state is comjilied with, and an agent appointed, his account
shall be audited and paid by the state.
Sect. 7. When a person is found in this state charged with an of-
fence committed in another state or territory, and liable by the consti-
tution and laws of the United States to be delivered over upon the
demand of the executive of such other state or territory, aaiy court or
magistrate authorized to issue warrants in criminal cases may upon com-
plaint under oath, setting forth the oftence and such other matters as
are necessary to bring the case within the provisions of law, issue a
warrant to bring the jieison charged before the same or some other
court or magistrate within the state, to answer to such complaint as in
other cases.
Sect. 8. If upon the examination of the person charged it a]ipcars
to the court or magistrate, that there is reasonable cause to believe that
the complaint is true, and that such person may be lawfully demanded
of the executive, he shall, if not charged with a capital crime, be required
to recognize with sufficient sureties in a reasonable sum to appear be-
fore such court or magistrate at a future day, (allowing a reasonable
time to obtain the warrant of the executive,) and to abide the order of
the court or magistrate.
Sect. 9. If such jjerson does not so recognize, he shall be committeil
to prison and there detained until such day, in like manner as if the
offence charged had been committed within this state ; and if the per-
son recognizing fails to a))]iear according to the condition of liis recog-
nizance, he shall be defaulted, and like jjroceedings shall be had as in
case of other recognizances entered into before such court or magistrate.
If the person is charged with a capital crime, he shall be committed to
Chap. 177.] pardons. 855
prison and there detained until tlie day so appointed for his appear-
ance.
Sect. 10. If tlie person so recognized or committed ajipears before How proceeded
the court or magistrate upon the day ordered, he shall be discharged, ^'^ged. '^'
unless he is demanded by some person authorized by the warrant of the k. s. u2, § lo.
executive to receive him, or unless the court or magistrate sees cause to
commit him, or to require him to recognize anew for his appearance on
some other day, and if when ordered he does not so recognize, lie shall
be committed and detained as before : 2)''ovidci7, that whether the per-
son charged is recognized, committed, or discharged, any person author-
ized by the warrant of the executive may at all times take him into
custody, and the same shall be a discharge of the recognizance, and not
be deemed an esca])e.
Sect. 11. The complainant in such case shall be answerable for all Expenses, how
actual costs and cliarges, and the support in jirison of any person so ^g j^,^ 5 ji
committed, to be paid in like manner as bj- a creditor for his debtor See Ch. 121.
committed on execution. If the charge for sup]3ort in prison is not so
paid, the jailer may discharge such person in like manner as if he had
been committed on an execution.
PAEDONS.
Sect. 12. In all cases in which the governor is authorized by the Governor may-
constitution to grant pardons, he may Ijy and with the advice of the ^'^a°s\l'c'ii'.T^'
council, and upon the petition of the ] person convicted, grant the pardon, §i,art. ».
upon such conditions, with such restrictions, and under such limitations, " " '^ '
as he deems proper, and he may issue his warrant to all projier officers,
to cany such pardon into effect ; which wairant shall be obeyed and
executed, instead of the sentence originallj' awarded.
Sect. 13. When a pardon is granted to a convict, or any part of the Terms of par-
punislunent of a convict is remitted by the governor with advice of g°°j-o^h hi
council, on conditions to be performetl by the convict, the terms and warrant,
conilitions upon which the pardon or remission is granttid sh.all be speci- is™, Isi, § 1.
fied and set ibrth in the warrant thereupon to be issued. And the gov-
ernor, by and with the advice of the council, may require a bond to be
given to the commonwealth, in such sum and with such surety as he
may ajiprove, conditioned that the terms upon which the pardon or
remission is granted shall by said convict be truly observed and kejit.
The bond shall be deposited with the treasurer of the commonwealth,
and be prosecuted to final judgment and execution when the condition
thereof is broken. When such bond is required by the governor, the
pardon or remission of punishment shall not take effect luitil the bond
is executed and deposited, as aforesaid.
Sect. 14. When a convict sentenced to confinement in the state Keepers ofjaiiB,
prison, or any jail or house of correction, is pardoned, or his punishment co'uviots"t'**
remitted by "the governor with the advice of the council, on conditions i.irge contrary
to be by the convict observed and performed, and it comes to the knowl- donr^^ ° ^"
edge of the warden of the state prison, or keeper of the jail or house 1837, 181, §2.
of correction, where the convict was confined, that he is abroad in ^no-
lation of the conditions of his pardon or remission of punishment, such
warden or keeper shall forthwith cause him to be arrested and detamed
according to the terms of his original sentence. In computing the
period of his confinement, the time between the conditional pardon and
subsequent arrest shall not be taken to be any part of the term of sen-
tence.
Sect. 15. When a convict is an-ested and detained for any breach Proceedings
of the condition of his pardon or remission of punishment, the warden cfar^eV^with"''
or keeper arresting him shall forthwith give notice in writing to the dis- vioha^ing condi-
trict-attomey for the district where such warden or keeper resides, and ^cf * ° """^ °°'
856
JAILS AND HOUSES OP CORRECTION. [CHAP. 178.
1837, 181, § 3.
1869, 196.
Procoedin*js
against coa-
Vlcts charged
with violating
couditionB of
pardon, &o.
1857, 389, § 3.
How warrant
of pardon exe-
cuted.
K. S. 112, § 13.
such attorney shall file an infonnation before the superior court next to
be held in said district, in the same manner as other informations are
filed, so that it may be judicially ascertained Avhether tlie condition of
the pardon or remission of punishment has been broken by the convict.
Sect. 16. If it is admitted by the convict, or found by the verdict
of the jury, that the condition is broken, the court before whom the infor-
mation is tiled shall sentence the convict to be remanded and confined
for the unexpired term of his former sentence, and to a further period
of confinement not exceeding one-half the time for which he was sen-
tenced for the oftencc to whicli the pardon or remission applied, to take
efiect from and after the period when he has suftered the whole term of
imprisonment to which he was orioinally sentenced. If the convict was
before sentenced to confinement for life, he shall be subjected to such
solitary confinement as the court shall order. If it appears to the court,
by the verdict of a jury or otherwise, that the convict has not broken
the conditions of his conditional pardon or remission, he shall be dis-
charged.
Sect. 17. When a convict is pardoned or his punishment is com-
muted, the ofticer to whom the warrant for that jnirpose is issued shall,
as soon as may be after executing the same, make return thereof under
his hand, with his doings therein, to the secretary's office ; and he shall
also file in the clerk's otfice of the court in which the oflender was con-
victed, an attested cojiy of the warrant and return, a brief abstract
whereof the clerk shall subjoin to the record of the conviction and
sentence.
TITLE III.
OF PRISONS AND IMPRISONMENT.
Chapter 178. — Of Jails and Houses of Correction.
Chapter 179. — Of the State Prison.
Chapter 180. — Of the Transfer of Lunatics and the Discharge of Poor Convicts.
CHAPTEE 178.
OF JAILS AND HOUSES OF CORRECTION.
JAILS.
Section
1. County jails, for what purposes to be
used.
2. Sheriff may remove prisoners.
3. may furnish employment to prisoners.
4. to be reimbursed for damages for escape
by reason of insufficiency of jnil.
6. Jailers to return list of prisoners to court.
Penalty for neglect.
notrsES OF coerectiox.
Section
Houses of correction, how provided, &c.
to h.ave enclosed yards. Jail may be used
for.
if several in county, convicts classified, &c.
overseers of. how appointed.
compensation of overseers of.
materials, &c., for work in ; rules and
reg;ulations in, &o.
Chap. 178.]
JAILS.
857
Section
12. Houses of correction, overseers of, &c., gen-
eral powers and duties.
13. may make contracts for work to be done
in the house.
14. may make contracts for letting the con-
victs out for hire.
15. Convicts may be employed on public lands^
&c.
16. Pregnant female may be transferred to
workhouse, &c. Cost of her support.
17. Cert;uu prisoners supposed to be reformed
may be discharged, »fce.
18. Night-walkt^rs, &c., committed for third of-
fence may be bound out or discharged in
certain cases.
PROVISIONS RESPECTING JAILS, HOUSES OF
CORRECTION, PRISONERS, &C.
19. Sheriff to have custody of jail, prisoners,
Are. blaster of house of correction inSuffolk.
20. Jailer, how removed, except in Suffolk.
21. Compensation of sheriff for care of pris-
oners. Not to receive rent for use of dwell-
ings owned by the county,
22. of officers, assistants, &c.
2-1. if inadequate, superior court to determine.
24. Jailer, &c., to keep calendar of prisoners.
Penalty.
25. Warrants, &c., to be filed and delivered to
sheriff's successor.
2C. Burial of deceased prisoner.
27. Sheriff to deliver prisoners to successor.
28. upon death of, jailer to continue in office
until, &c.
29. Female convicts may have custody of their
children under the age of 18 months.
30. How such child may be removed, &c.
31. Prisons, &;c., to be whitewashed, kept
clean, &c.
32. Cleanliness of prisoners, their food, &c.
33. Classification and separation of prisoners.
34. Execution of sentence to solitary imi)rison-
ment.
35. and to hard labor, but not inengravingor
printing. Log and chain may bo used.
Puuishmeut of prisoners refusing to work,
&c. Not to be in solitary more than three
days, &c.
of refractory prisoners.
of poor debtors, &c., who commit depre-
dations.
39. Sheriff's and keeper's authority not af-
fected by two preceding sections.
36.
37.
38.
Section
40. Moral and religious instruction to prison-
ers, &c.
41. Instruction in reading and writing.
42. Spirit and strong drink prohibited, unless,
&c.
43. Penalty for furnishing, or attempting to
furnish, spirits, &c.,to prisoners.
44. for neglect of duty by sheriff, jailer, Ac.
45. Officers using intoxicating liquors to be re-
moved.
40. Punishment for prisoners escaping, &c.
47. Kecord of conduct to be kept and term of
imprisonment reduced in certain cases.
48. Removal of prisoners in case of pestilence.
49. in case of danger from lire.
EXPENSE OF SUPPORTING PRISONERS, &C.
50. Commissioners to procure supplies, &c.
51. Expense of supporting convicts in jails,
&c., how paid.
52. Advancement of money for tools and ma-
terials, &c.
53. Master, &c., to keep account of earnings, &c.
54. to supply fuel, &c. Allowance therefor.
55. to obey orders for furnishing specific ra-
tions. Penalty.
50. Compensation of master of house of correc-
tion in Suffolk.
57. Overseers, &c., to audit accounts for sup-
port of convicts, &c.
58, 59. Support of poor convicts, how recov-
ered of kindred, town, &c.
60. notice to tovni liable for.
61. Jailers, &c., to keep a prison book. Pen-
alty for neglect.
INSPECTORS OF PRISONS.
62. Inspectors of prisons, &c.
63. Keepers, &c., to make stated returns.
64. Inspectors, powers and duties of.
65. in Suffolk.
66. to have access to books, accounts, pris-
oners, ifcc.
67. to notify district-attorney of violations of
law.
RETURNS.
68. Inspectors to make annual returns to gov-
ernor.
09. Blank forms of returns to be furnished by
secretary.
70. Sheriffs, &.C., to make returns. Abstract.
71. Penalties for neglect.
72. Prosecution of delinquents.
K. S. 143, §1.
1855, 489, § 19.
JAILS.
Section 1. The jails in the several counties shall be used, — County jails, for
First. For the detention of persons charged with offences and com- Jo he iS.**^*^^
mitted for trial :
Second. For the detention of persons committed to secure their
attendance as witnesses on the trial of criminal causes:
Third. For the confinement of persons committed pursuant to a
sentence upon conviction for an offence, and of all other persons com-
mitted for any cause authorized by law.
The provisions of this section shall extend to persons detained oi
committed hj authority of the courts of the United States, as well as
the courts and magistrates of this state, except as is provided in section
sixty-one of chapter one hundred and forty-four.
Sect. 2. If there are several jails in a county, the sheriff may cause sherifi" may re-
the prisoners to be confined in either, and may at his discretion remove n^o^'^P^so^ers.
them from one jail to another for their health or safe keeping, or for
their more convenient appearance at court.
72* 108
858
HOUSES OF CORRECTION.
[Chap. 178.
Sheriff may fur-
lii^li employ-
nn-'iit to pris-
OULTS.
184S, 321, § 4.
to be reim-
bursed for dam-
aj^es for escape,
11. S. 14, § 93.
Jailers to re-
turn list of pris-
oners, &c., to
court.
Peanlty for
neglect.
K. S. 143, §§ 52,
84.
Act of amend.
§ lit.
1859, 196.
Sect. .3. The sheriff may furnish to the prisoners employiiieiit of
such nature and in sucli places as he deems best, and consistent witli
their safe keeping; but this section shall not be construed to recjuire the
performance of any labor by persons confined in jail.
Sect. 4. In case of the escape of a prisoner by reason of insufficiency
of the jail, whereby the sheriff is made liable to any party at whose suit
the prisoner was committed, or to whose use any forfeiture was adjudged
against him, the count)- shall reimburse all sums of money recovered by
such party of the sheriff on account of the eseajje.
Sect. 5. At the opening of each term of the superior court at which
criminal business may be transacted, the jailers of the county shall
return to the court a li.st of all prisoners in their custody, siwcifying
the causes for wliich and the persons l>y whom they were committed,
and produce and exhibit therewith, for the inspection of the court, their
calendars of prisoners, and return a like list of the persons committed
during the session of the court, in order tliat the court may take cog-
nizance and make deliverance according to law of the prisoners com-
mitted for crimes within its jurisdiction. Jailers who neglect to make
such returns, or to exhibit their calendars, shall be fined in the discre-
tion of the court.
Houses of cor-
rection, liow
provided, &c.
11. S. 14, § 9.
IJ. S. 143, §§1,2.
1S4S, 324, § 2.
1S.-.1, 4-ls, § .-!:!.
1S65, 4M9, I 19.
to have en-
closed yards.
Jail may be
used for.
K. S. 143, § 3.
if several in
county, con-
victs classitied,
&c.
1859, 249, § 7.
overseers of,
how appointed.
K. S. 143, §§11,
12.
1837, 3.5.
1839, 249, § 0.
compensa-
tion.
183?, 35, §.3.
1859, 249, § 5.
materials,
&c., for work
in ; rules and
TCguL-itions in,
&c.
K. S. 143, § 14.
1857,35.
HOUSES OF CORRECTION.
Sect. 6. There shall be provided by the county commissioners in
each county except the county of Dukes County, and in Sufiblk by the
aldermen of the city of Boston, at the charge of said counties and city
respectively, a fit and convenient house or houses of correction, suitably
anil efficiently ventilated, with convenient yards, work.shops, and other
suitable accommodations, adjoining or ajipurtenant thereto, for the safe
keeping, correcting, governing, and employing, of offenders legally com-
mitted thereto by authority of the courts and magistrates of this state or
of the United States, except as provided in section sixty-one of chapter
one hundred and forty-four.
Sect. 7. The yards shall be of sufficient extent for the convenient
em|doyment of the persons confined therein, and enclosed by fences of
sutiieient height and strength to prevent escapes, and also to prevent all
persons without from access to or communication with any persons con-
fined therein. When such house of correction is not provided, the jail
or a part thereof may be used for that purpose, but when so used it shall
be provided with a sufficient yard, so enclosed.
Sect. 8. If there are several houses of correction in a county, the
sentence of prisoners shall be to cither house of correction therein, and
the sheriff and county commissioners may classify the convicts and place
them in either house.
Sect. 9. The commissioners in the sever.al counties, except Suffolk,
shall annually on the first Wednesday of January appoint to each house
of correction two or three suitable persons of the county, otlier than the
sheriti or commissioners, to be overseers thereof, and may remove any
overseer and fill vacancies.
Sect. 10. Each overseer shall receive from the county such annual
compensation for his services and travel, not exceeding one hundred
doll.'u-s, as the commissioners determine, and the directors for public
institutions in the city of Boston shall receive such compensation as the
city council allows.
Sect. 11. The commissioners in the several counties except Suffijlk,
and the board of directors for public institutions in Boston, shall cause
to be provided, at the ex])ense of said counties and city res))ectively,
suitable materials and implements sufficient to keep at work all the ])er-
sons committed to the house of correction, and may from time to time
establish needful rules for employing, reforming, governing, and jmnisli-
Chap. 178.] houses of correction. 859
ing, the persons so committed, for procuring and preserving such mate-
rials and implements, and for keeping and settling all accounts of the
cost and expenses of procuring the same, and of all labor jjerformed by
each of the jiersons so committed.
SicfT. 12. In the county of Suffolk the board of directors for public Overseers, Ac,
institutions, and in other counties the overseers, shall see that the rules fuU'dutjes™"^'*
established for the management of the house of correction and the gov- Jlv?'^;^"'' ^"*
ernment of the ]iersons confined therein are strictly observed, examine ''
all accounts of the master relating to the earnings of the prisoners and
all expenses of the institution, and keep a fairly written register of their
official proceedings.
Sect. 13. They may make contracts for work to be done in the maymake_
house, with any person disposed to supply materials to be there wrought, work to be done
and in such case may stipulate that the contractor shall furnish some '" ^IP",^^' f?'.
1 'ill 111 1^1 ■ ,K. o. Ho, s 1-.
]icrson, to be approved by tliem, to oversee tlie lal)or ot tlie convicts and isso, 249, §5.
instruct theai in business or trades, conforming to all rules of the prison
and not interfering with the discipline thereof
Sect. 14. They may make contracts for letting out to hire during for letting
the day time any of the persons there confined, to employers who live k"'s "i^^^j i*f '
so near to the house of correction that the directors or overseers or the
master of the house can have the general inspection of the conduct of
the persons so let out, and of the treatment they receive.
Sect. 15. The commissioners, or directors, may, with the assent of Convicts may
the master or kecjier of any house of correction, employ any of the puy"I.''i^,J|]fg ""
jnisoners to labor upon the public lands and buildings belonging to the &o_.
county. iso'J, -49, § 0.
Sect. 1G. When it appears to the physician of a house of correction Pregnant fe-
that a female convict is in a state of jwegnancy, any judge of the superior ".ousferrwi to
court, or any police court, may, upon application of the master or keeper workhouse, &<:.
of the house, or of the convict, revise her sentence so far as to order her support,
to be transferred to any workhouse or house of industry in the same J^f,' 4',''' ^^^ '' ■*'
county for such term as is exjiedient, not exceeding the remainder of itoo! vm.
her sentence ; and may at any time before the expiration of her sentence
cause her to be again restored to the house of correction. For the sup-
]iort and custodj- of each female so transferred, two dollars a week shall
be paid by the county to the city or town to which she is transferred.
Sect. 17. When it appears to the overseers or directors of a house Certjun prison-
of correction, house of industry, or workhouse, that a person there con- be'^remrmed' '^"
fined on conviction before a justice of the peace of either of the offences "J"'' ,J'f, "*'''"
mentioned in section twenty-eight of chapter one hundred and sixty- K.'sri4:t, §13.
five, has reformed and is willing and desirous to return to an orderly J!^''^l.*'•- co.
course 01 life, they may, by a written order, chscharge liim trom connne-
nient. Any person committed by the superior court, or any police
court, for either of said offences, may be discharged by such courts re-
spectively upon the recommendation of the overseers or directors.
Sect. 18. The overseers or directors of any house of correction, xight walkers,
workhouse, or house of industry, may, after six months from the time of ^r tUrd"!!"''''
sentence, discharge any person committed thereto imdcr section thirty- feme may be
five of chapter one hundred and sixty-five, ujion being satisfied that the tii'sci',ar'g-«Un
convict has reformed : or may bind out such person for anj' tenn during ^':'!:I"'!'''-'*^s-
• -I ,% J • 'ii* I'SK), 69, § 2.
tlio ]icriod 01 the sentence, as an apprentice or servant to any mhabit-
ant of this state; and said overseers and directors, and the master, mis-
tress, ajiprentice, an<l servant, shall respectively have all the rights and
privileges, and be suliject to all the duties set Ibrth in chapter one hun-
dred and eleven, in the same manner as if such binding were made by
the overseers of the poor; and the relations between the parties shall
not be affected by the age of the party bound. If the master or mis-
tress is discharged from the contract of service or apprenticeship as
provided in said chajjter, the person bouud shall be returned to the
860
JAILS, HOUSES OF CORRECTION, PRISONERS, &c. [ChAP. 178.
place of confinement, and serve out the original sentence, if any portion
thereof is uncxjjirefl ; but the overseers or directors shall not be liable
to the costs of the process provided in said chapter.
Sheriff to have
custody ofjilil,
jirisouers, &c.
Master of house
of correction in
Suffolk.
ISjU, 2i9, § 1.
Master, how re-
moved.
ISijii, 196.
1S59, wg, §§ 1, 8.
Compensation
of sheriff for
care of prison-
ers, &c.
K. S. 14, § 92.
of officers, as-
sistants, &c.
ISiU, 249, §§ 1, 2.
if inadequate,
superior court
to (U-terraiue.
1S50, 19lj.
1859, 249, § 3.
Jailer, &c., to
keep calendar of
prisoners.
Penalty.
U. S. 14, § S.3.
18S9, 139, § 5.
Warrants, &c.,
to be filed, and
delivi;red to
slK-riiT's suc-
cessor.
U. S. 14, § 85.
1839, 135.
PROVISIONS EESPECTING JAILS, HOUSES OF COKRECTION, PEISONEKS, &C.
Sect. 19. The sheriff shall have the custody, rule, and charge of the
jails, and except in the county of Suftolk, the houses of correction in
his county, and of all prisoners therein, and shall keep the same bv him-
self, or by his deputy, as jailer, master, or keeper, for whom he shall be
responsible. The jailer, master, or keeper shall appoint all suljordiuate
assistants, employees, and ofiicers, for whom he shall be responsible.
In the county of Suftolk the city council of Boston shall appoint a suit-
able person to be master of the liouse of correction, to hold his oftice
during their pleasure.
Sect. 20. Any master, keeper, or jailer, except in the county of
Sufliblk, may be removed by the superior court for neglect of duty, or
wasteful or extravagant use of supplies, upon complaint of the county
commissioners, sotting out the foets, and after notice to the sheriff and
the person complained of, and a hearing thereon.
Sect. 21. For the safe keeping of the prisoners committed to his
custody, the sherift' shall have such compensation fi-om the county, not
less than twenty dollars a year, as the county commissioners, or in the
county of Suftolk the mayor and aldermen, order. He shall not receive
any rent or emolument from the jailers and keepers of the houses of
correction, for the use and occupation of the dwelling-houses j)rovided
for them by the county.
Sect. 22. The commissioners, (except in the county of Suffolk,) shall
establish fixed salaries for all officers, assistants, and employees, of jails
and houses of correction, which shall be in full compensation for all their
services, and for which tliey sjiall devote their whole time to the dis-
charge of their duties, unless released therefrom by the commissioners.
Sect. 2.3. If the sheriff, master, keeper, or jailer, deems any such sal-
ary inadequate, he may present his petition, showing the facts, to the
superior court next to be liolden for tlie county, and the court, alter
notice to the chairman of the county commissioners, and a hearing,
shall fix the salary, and pass such further order in the premises as law
and justice require.
Sect. 24. The jailer, keeper, or master, of each jail and house of cor-
rection, shall keep in a bound book an exact calendar of all prisoners
committed thereto, and sliall cause to be distinctly registered therein the
names of all prisoners, their places of abode, additions, and the time,
cause, and authority, of their commitment, and a description of the per-
sons of such as are committed on criminal prosecutions, together with
such facts as, witli tlie entries in the prison book, will enable the sheriff
or directors to make the returns recpiired by sections sixty-nine and
seventy. When a prisoner is liberated, he shall register in the same
book the time and authority of such liberation, and in case of an escape,
the time and manner of the escape. Every jailer, master, or keeper,
neglecting to keep such calendar, or to enter such facts therein, sliall
forfeit one hundred dollars, to be recovered by the commissioners or di-
rectors in an action of tort, in the name of the county, or in Suffolk in
the name of the city of Boston, and expended by them for the relief of
discharged prisoners.
Sect. 25. All warrants, mittimuses, processes, and other official
papers, or .attested coj)ies thereof, by which a jirisoner is committed or
liberated, shall be regularly filed in the order of time, and with the
calendar, be safely kept in a suitable box for that ])ur]iose, and upon
the expiration of the sherifi"s commission, his death, resignation, or
Chap. 178.] jails, houses of correction, prisoners, &c. 861
removal from office, be delivered to his successor; and in default thereof
the shoriiT or his executors or administrators shall forfeit two hundred
dollars.
Sect. '20. When a person imprisoned for any cause dies in jirison, Burial of de-
the sherifl" or tlie keejier shall deliver the body to his relations or friends onc'r"'' ''"*'
if they request it. If no application is made therefor, the sheriff or U- s. h, §S7.
keeper shall bury the same in the common burying ground, and the
ex]K'nses be paid by the city or town in which such person had a legal
settlement, if any, otherwise by the county.
Sect. 27. Ever}' sheriff, upon the ex])iration of his commission, or sheriff to do-
his resignation or removal from office, shall deliver to his successor all }" guSsor"
jirisoners in his custody, and for that purpose shall retain the kcej)ing R. .s. h, §s4.
of the jails and houses of correction under his care, and of the prisoners '^^'~ ^'>'-
therein, until his successor is appointed and qualitied.
Sect. 28. In case of the death of the sheriff, the jailer, master, or upon dratii
keeiier, by him appointed, shall continue in office and retain the custody, °h;u'"h7officc°
rule, and charge, of the jail or house of correction, and of all prisoners until, Ac.
committed thereto, until a successor to the deceased sheriff is appointed i!.i,ii,'-,4.J.
or elected and qualified, or until the governor, by and with the advice
of the council, removes such jailer, master, or keeper, and appoints an-
other. The jailer, master, or keeper, a]ipointed l>y the governor, shall
give bond with sureties as the governor directs and approves for the
failhfid performance of the duties of his office.
Sect. 29. Wiien the mother of a child under the age of eighteen Female con-
months is impiisoned in a house of correction, jail, Avorkhouse, or other ous'tod>'''of'"*
place of confinement, and is capable and desirous of taking care of said tiicir children
child, the keeper shall, upon the order of the court or magistrate com- ag^,..
mitting her, or of any overseer of the ])oor, receive the child and jilace 'i^Nar, § i.
it under the care and custody of its mother.
Sect. 30. When the overseei-s, insjiectors, or other like officers, of How such
such institution, are satisfied that the health and comfort of such child r^i^7^d7&l^
call for its removal, or that for any cause it is expedient that it should iws, sr, §2.
be removed, they shall give notice to the father or other relatives there-
of; and if neither can be found to receive it, to the overseers of the
poor of the city or town in which it has a legal settlement, who shall
receive it ; or if it has no settlement in this state, it shall be sent to one
of the state almshouses, as is provided in the case of alien paujiers.
Sect. 31. The keeper of each jail and the master of each house of Prisons, &c., to
correction shall, at the expense of the county, see that the same is con- ^^ ^^ept ^ieau
stantly kept in as cleanly and healtliful a comlition as maybe, and shall &c.
cause the whole interior tliereof; including the floors, to be thoroughly '-S-HS, §38.
whitewashed with lime at least twice in each year, and the walls and
floors of each room, while any person is confined therein, to be so white-
washed once in each month lietween the first t)f May and the first of
November. No permanent vault shall be used in any apartment. Every
room occupied by a jnisoner shall be furnished with a suitable bucket
with a cover made to shut tight, for the necessary accommodation of
such jn-isoner, and such bucket when used shall be emptied daily and
constantly kept in good order.
Sect. 32. The keeper and master shall see that strict attention is Cleanliness of
constantly paid to the personal cleanliness of all prisoners in their cus- Jbod"^"' *'"'"'
todv, and shall cause the shirt of each prisoner to be washed, and the k. s. 143, § 39.
prisoner himself to be shaved, once at least in each week, and to have ' '^ "
a weekly bath of cold or tepid water ajpplied to the whole surface of
the liody, unless by reason of sickness such bath would be hurtful or
dangerous. Each prisoner shall be furnisheil daily with as much clean
water as he has occasion for either as drink or for the purpose of per-
sonal cleanliness, and Avith a clean towel once a week. No clothes shall
be washed or hung out wet in any room which is occupied bj- a prisoner
862
JAILS, HOUSES OF CORRECTION, PRISONERS, &c. [ChAP. 178.
Classification
and separation
of prisoners.
K. S. 143, § 35.
See § «.
Execution of
sentence to soli-
tary iniprisou-
ment.
K. S. H3, § 20.
1854, -.m.
and to hard
labor ; but not
in eujjrraving: or
printiufr-
LiO^ uud chain
may be usihI.
K. S. 143, § ■,'!.
ISaO, 3S'.I, § 4.
Punishment of
prisoners refus-
ing to work,
&c. ; not to be
in solitary more
than three days,
&c.
K. S. 143, § 23.
1853, 34.
of refractory
prisoners.
R. S. 143, § 40.
1857, 35.
of poor debt-
ors, (tc, who
lonnnit depre-
dations.
U.S. 143, §47.
1«S3,312.
during the night. All prisoners not in solit.aiy confinement shall be
served three times each day with wholesome food, well cooked, in good
order, and in sufficient quantity.
Sect. 33. Male and female prisoners .shall not be j^ut or kejit in the
same room ; nor, unless the crowded state of the jail or house of correc-
tion requires it, shall any two prisoners, other than debtors, be allowed
to occupy the same room, except for work. Persons committed for
debt shall be kept separate from felons, convicts, and jiersons confined
upon a charge of felony or other infamous offence, and all conversation
between jirisoners in different apartments shall be prevented. Minors
shall be kept separate from notorious offenders and those convicted of
a felony or other infiimous crime. Persons committed on charge of an
offence shall not be confined with convicts, and prisoners charged with
or convicted of an offence not infamous shall not bo confined with those
charged with or convicted of an infamous crime, except while at labor
or assembled for moral or religious instruction, at which times no com-
munication shall be allowed between prisoners of different classes.
Sect. 34. When a convict is sentenced to solitary imprisonment and
hard labor in a jail or house of correction, the master or keeper shall
execute the sentence of solitaiy imprisonment by confining the convict
in one of the cells, or if there is none, then in the most retired and sol-
itary part of the jail or house, and during the time of solitary impris-
onment the convict shall be fed with bread and water only, unless other
food is necessary for the preservation of his health. No intercourse
shall be allowed with any convict in solitary imprisonment, except for
the conveyance of food and other necessary purposes.
Sect. 35. As soon as the term of solitary imprisonment has expired,
the master or keeper shall furnish the convict with tools and materials
or other means for work in a suitable manner, in which he can be use-
fully or profitably employed, cither in the house of correction or jail, or
in the close yard thereof; but no convict shall be employed in engrav-
ing or printing of any kind. Such convict may if necessary be confined
by a log and chain, or in such other manner as shall prevent his escape
without unnecessarily inflicting bodily jiain or internqiting his labor.
The overseers, or, when the punishment is inflicted in the jail, the sher-
ifl", shall oversee the execution of all such sentences.
Sect. 36. If a convict is refractory, or, during the time for which he
is sentenced to hard labor, refuses or neglects without reasonable cause
to labor in a suitable manner when required, he shall be kept in solitary
confinement and fed on bread and water as before provided so long as
he is refra-itory or refuses to labor; but no keeper of a jail or master of
a house of correction shall confine in solitary imprisonment any convict
for more than three days at one time, without informing the sheritt' or
overseers thereof and the reasons therefor.
Sect. 37. If a person confined in a jail or house of correction upon
a conviction or charge of an offence against the commonwealth, is re-
fractory or disorderly, or wilfully or wantonly destroys or injures any
article of furniture or other ])ro])erty, or any part of such prison, the
sheriff, overseers, or board of directors for public institutions, res])oc-
tively, .after due inquiry may cause him to be kept in solitary confine-
ment, not more than ten days for one oftence ; and during such confine-
ment he shall be fed with bread and water only, unless other food is
necessary for the preservation of his liealth.
Sect. 38. If a person committed to jail on mesne process or execu-
tion, or for any other cause than those mentioned in the preceding sec-
tion, is on complaint of the keeper convicted before a justice of the
pence, or police court, of either of the offences therein specified, he shall
be punished by solitary im]irisonment as directed in said section, not
more than ten days for each offence. He shall also be liable for double
Chap. 178.] jails, houses of correction, prisoners, &c. 863
the amount of tlie damage done to the jail, furniture, or other prop-
erty, to be recovered in an action of tort, wliich may be brought by
the sheriff or county treasurer in the name and to the use of the
county.
Sect. 39. The two preceding sections shall not affect the authority Sheriff's and
of a sheriff, jailer, or master of a house of correction, to preserve order Sio?ity not
and enforce strict discipline among the prisoners in his custody. affected.
Sect. 40. The keeper or master shall at the exi)onse of the county ,,' ', "'. ,'■
■ r> c 1 ■' ii-i i.'ii IT. •' Moral and reu-
provKle tor each prisoner under his cliarge, wlio is able and desirous to gious instruc-
read, a copy of the Bible or of the New Testament, to be used by such or"? &c!'"^°°"
prisoner at proper seasons during his confinement, and the county com- K- s. hs, § 40.
missioners may, in their discretion and at the expense of their county, isaslaai. '
provide moral and religious instruction for the prisoners confined in the
jails and houses of correction of their respective counties. Prisoners in
the state prison, or in any jail, house of correction, almshouse, or
other place of confinement, may, in their illness, on request to the
warden, keeper, or master, receive the visits of any clergj-man they may
desire.
Sect. 41. The county commissioners of each county, and the alder- instruction in
men of the city of Boston, with the sheriff of the county, may at the ^y^ritinS""''
expense of their county or city furnish suitable instructions in reading ifHs, sSi, § .■).
and writing for one hour each evening, except Sundays, to such pris- ^^*' ***' ^ **'
oners as may be benefited thereby and are desirous to receive the same.
Sect. 42. No sheriff, jailer, master of a house of correction, or other spirit and
officer, or under keeper of a prison, shall, under any pretence, give, sell, pro°hiBite'd"un-
or deliver, or knowingly suffer to be given, sold, or delivered, to any less, &c.
person committed to jail for debt and supported at the charge of the see''§ «?' * ^*'
creditor, or to a prisoner in confinement upon conviction or charge of
an offence, any spirituous liquor or mixed liquor, part of which is spirit-
uous, or any wine, cider, or strong beer, unless the attending physician
of the prison certifies in writing that the hcaltli of the prisoner re-
quires it, in which case he shall be allowed the cpiantity prescribed, and
no more.
Sect. 43. Whoever gives, sells, or delivers, to a person confined in Penalty for fur-
aiail. house of correction, house of industry, workhouse, or pri.son, or to "'siimi?, or at-
. ipi.rt» 111* . tenipnnjj to
a person in custodj-oi a sheriff, constable, ])olice oftiecr, jailer, master of furnish, spirits,
a house of correction, or warden of a prison, any spirituous or other eVs'.' *" p"*"""
liquors, as mentioned in the preceding section, or lias in his possession, n_s. 143, §37.
within the precincts of any jail, house of correction, or otlier place of '
confinement mentioned in this chapter, any such liquors, with intent to
convey or deliver the same to any pei-son or prisoner confined therein,
unless under the direction of the physician appointed to attend such
prisoner, shall be punished by fine not exceeding fifty dollars, or
by imprisonment in the jail or house of correction not exceeding two
months.
Sect. 44. If a sheriff, jailer, or master of a house of correction, gives, for neglect of
sells, or delivers, to any iirisoner in his custody, or willingly or negli- vi'jfJr ''ic'*''""^'^'
gently suffers such prisoner to have or drink any spirituous, fermented, if. s.'hsJjso.
or other strong or mixed liquor, jjrohibited by section forty-two, or '*'^'^' '•^•
places or keeps together prisoners in his custody of different sexes or
classes, contrary to the provisions of section thirty-three, he shall in
each case forfeit for the first offence twenty-five dollars, and for any
such offence committed after the first conviction fifty dollars, and shall
on such second conviction be further sentenced to be removed from
office and to be incapable of holding the office of sheriff, deputy-sheriff
or jailer, or master or keeper of any prison, for the term of five years.
Sect. 45. The sheriffs of the several counties, and the board of di- ' Officers iisino-
rectors for public institutions in Boston, shall forthwith remove any JfuOTs'to bcre-
officer by them respectively appointed to any position of trust or author- moved.
864 EXPENSE OP SUPPORTING PRISONERS IN JAILS, &c. [ChAP. 178.
18S8, 162, § 2. ity in the jails and houses of correction, who is known to use intoxicating
1859, 2i'j. liquors as a beverage.
Punisbment for Sect. 46. Whoever lawfully imprisoned in any place of confinement
prisoners es- established bv law, other than the state prison, breaks therefrom and
c.iping, ifec. (.'Ill 11 ■ 1 ■ 1 />
K. s. H3, §§49, escapes, or lorcibly breaks the same with intent to escape, or by lorce or
issfw. violence attempts to escajie therefrom, shall be punished by imju-ison-
4 Met. :)iu. meat in the state prison not exceeding five years, or in the jail or house
■'"••'■ of correction not exceeding three years, or by fine not exceeding one
thousanil dollars.
Recorfi of con- Sect. 47. The keeper of every jail and the master of every house of
■'"(Uorm'o'fTm Correction shall keep a record of the conduct of each convict ■\\hose
prisonment ro- term of imprisonment is not less than four months, and for every month
cases! '" '"^''*'"° that a convict appears by such record to have faithfully observed all the
1S37, 284, §1. rules and requirements of the prison, and not to have been subjected to
ml] m punishment, there shall be deducted from the whole term of his sen-
tence, whether in one or more cases, as follows : from a tenii of less
than three years, one day ; from a term of three and less than seven
years, two days ; from a term of seven and less than ten years, four
days ; and from a term of ten j-cars or more, five days : said record
shall be submitted to the sherift" and to the overseers of the house of
correction, or board of directors for public institutions in the city of
Boston, to be considered by them in recommending prisoners to exec-
utive clemency.
Removal of Seijt. 48. If disease breaks out in a jail or other ]irison, which in
prisoners in ^]j(^ oiiiuion of the inspectors of the ijrison may endanuer (he lives or
case of pcsti- ,,,'„, . ' , , ^ , •' i . i • i
lence. health of the jjnsoners to such a degree as to reniler tlieir removal
is'sa'm'^*'' necessary, the inspectors may designate in writing some suitable ])lace
within the same county, or any prison in a contiguous county, as a place
of confinement for such prisoners. Such designation being filed with
the clerk of the superior court, shall be a sufficient authority for the
sherifl:', jailer, master, or keeper, to remove all the prisoners in his cus-
tody to the place designated, and there to confine them until they can
be safely returneil to the place whence they were removed. Any place
to which the prisoners are so removed shall during their imiirisonment
therein be deemed a prison of the county in which they were originally
confined, but they shall be under the care, government, and direction of
the officers of the county in which they are confined,
in case of dan- Sect. 49. If a jail Or Other prison, or any building near thercto,_is
g<='' '■'■{"J "■"];; on fire, and the prisoners are exposed to danger thereby, the sherifi",
' ■ ' " jailer, or other person having charge of the prison, may remove such
pi-isoners to a place of safety, and there confine them so long as may be
necessary to avoid the danger, and such removal and confinement shall
not be deemed an escape of the prisoners.
EXPENSE OF SUPPOETING PRISONERS, &C.
Commissioners Sect. 50. The commissioners, except in the county of Suflfolk, shall,
plies".?!;'^'' ""^ without extra charge or commission to themselves or any person, pro-
isj9,'2Vj,'§4. cure, or cause to be procured, all necessary supplies for the jails and
houses of correction, to be furnished and purchased under their direc-
tion and at the expense of the county.
Expense of Sect. 51. All cliaiges and expenses of safe keeping, maintaining,
victs'in 'ails''™ ''>"'^ emi)Ioyins;, convicts sentenced to imjirisonment in the jail or house
&c., iiow paid, of correction, of the safe keeping of persons charged with oifences, and,
ishl' iVil'.' ^ "' ■ committed for ti'ial or sentence, and, except in the county of Suftblk, of
8 Met. 513. jirisoners committed on mesne process or execution, so long as the fees
for their board are [laid by the defendant or debtor, ])laintiff or creditor,
shall be ])aid from the county treasury, the accounts of the kecjier or
master being first settled and allowed by the commissioners, or in the
Chap. 178.] expense op supporting prisoners. 865
county of Suffolk by the board of accounts ; and no allowance therefor
shall be made by the commonwealth.
Sect. 52. Tlie county commissioners, and the aldermen of the city Advancement
of Boston, may order sucli sums of money as may from time to time toouTml ma-
be necessary, to be advanced out of the treasuries of their counties or trials, &c.
city to the master of the house of correction or keeper of the jail, for ...j' ' > ss - >
the purpose of iirovidinar such tools, materials, and otlier thinirs, as may }•''-?' H*"'' f h
be required tor the employment, restraint, and sale keejnng oi the con-
victs ; and the master or keeper shall aj^jropriate the same under the
direction of the officers ordering the advancement, and account to them
for the expenditure thereof.
Sect. .58. Each master or keeper shall cause the articles manufoc- Master, &c., to
tured by the prisoners in his custody, or the jn-oduce of their labor, earmn"s°&c! "*'
to be disposed of to the best advantage, and under the direction of said i:. s. 143, § 25.
commissioners or aldermen shall cause accounts to be kept of the pro-
ceeds thereof, and shall present such accounts to them for settlement
semiannually, and as much oftener as they deem it necessary. He shall
pay into the treasury of the county or city, at such time as said officers
direct, the amount of sales and other proceeds of the labor and earnings
of the prisoni'rs in his custody, or the balance thereof.
Sect. 54. The master or keeper shall furnish, at the expense of the to supply
county, necessary fuel, bedding, and clothing, for all prisoners in his lowancetbere-
custddv ui)on chai'ge or conviction of any offence against the common- for.
* • ' • K S 143 5 44
wealtli, and shall present to the county commissioners, or in the county ' ' '
of Suffolk the board of accounts, a full account of his charges so in-
curred, and also for necessary furniture for the ])rison; and the commis-
sioners or boanl of accounts shall make a reasonable allowance therefor,
which shall be ]iaid from the county treasury.
Sect. 55. When the commissioners or the aldermen of the city of to obey or-
Boston direct specific rations or articles of food, soap, fuel, or other n^'JhiJfg speciflo
necessaries, to be furnished to the prisoners, the keeper or master shall rations,
conform to such direction, and if he refuses or neglects to funiish the i^ s. 14.3, § 45.
same, he sliall be subject for a first and second offence to the penalties 1864, 44s, § 33.
jjrescribed by section forty-four for the offences therein mentioned.
Sect. 50. The board of directors for ]iublic institutions in Boston Compons.ation
shall from time to time determine what sum the master of the house of i°oi™ro7 car-
correction for the county of Suffolk shall receive for the board of the rcction in Suf-
persons committed to his custody, and the master shall in addition to k. s. 143, § 14.
such board receive such further compensation for his services as the city iss-, 35.
council of Boston deem just and reasonable.
Sect. 57. In the county of Suffolk the board of directors for public Overseers, &c.,
institutions, and in other counties the overseers of the houses of cor- 'oimts for sup-
rectiou, shall, twice in each year, and oftener if necessary, examine and port of con-
audit the accounts for the care and expense of supporting and ein]iloy- u. s.' 143, § 15.
iiig the ]-)ersoiis committed to the houses of correction in their county, J|^:) J^JJ-
and cerlify what sum is due for supjiorting and em])loying each person, iso^ss.
after deducting the net profit of his labor. If any of said persons re-
fuse or neglect, for fourteen days after demand in writing by the master
or keeijer, to jxij' the sum so certified to be due, the commissioners or
directors may commence an action of contract in the name of their
county, or in Suffolk in the name of the city of Boston, and recover
against such person the sum found to be due ; but the defendant may
prove on the trial that the whole sum allowed and certified by the di-
rectors or overseers was not due, and may, as in other cases, tender,
bring into court, or offer judgment for, such sum as he admits to be
due. *
Sect. 58. When they certify that a sum is due for supporting and fSSyMs^Z"
em]iloying any person who has not sufiicient estate to pay the same, recovered of
such sum may be recovered by the county, or in Suffolk by the city of &° ^^ ' """'
73 109
866 INSPECTORS OP PRISONS. [ChaP. 178.
E. s. H3, § 10. Boston, of any parent, master, or kindred, by law liable to maintain
m?' oo%l ■>' 3. ^^''^- ^^ ^^ '^^ committed for any offence mentioned in section twenty-
is i>ick.'_4ro.' one of cliajiter one Inindred and sixty-one, or section twenty-eiglit of
SMetil'i^ clia])ter one hundred and sixty-five, and has no parent, master, or kin-
dred, liable by law to maintain him, sucli sum, to an amount not exceed-
ing one dollar a week, may be recovered of the city or town Vidiere he
has his lawful settlement.
Support of poor Sect. 59. Upon refusal or neo-lect to make payment for thiity days
reMvorcdof^ after the same is demanded in writing of the parent, master, or kindred,
kindred, or or of any member of the city council of the city, or any overseer of tlie
i{."s!'h3, § 10. poor of the town, resjiectively liable by law therefor, the county, or in
is4(i, 1.54, § 1. Suffolk the city of Boston, at any time within two years after the ac-
22 Pick] ill! count has been so certified, and not afterwards, may commence and
maintain an action for the same, against the party so liable, in the form
of action and subject to the defence prescribed and allowed in section
fifty-seven,
notice to town Sect. GO. "When a person is committed for whose support a city or
i'sw%f^'§ 1. town may be liable under section fifty-eiglit, the master or keeper shall
185?, 3i. immediately give notice thereof in writing, by mail or otherwise, to the
mayor and ahleruien or selectmen of such city or town.
Jailers, &c., to Sect. 61. .Jailers and masters of houses of correction shall have a
book''ic'^'i'en- pi'isou book, in which they shall keep an account of the value of labor
ally lor neglect, of the prisoners, and salaries of officers; and also of articles furnished
isol', ~m, 1 1. ft"" the sujijiort of the jn-isoners, the quantity, of whom bought, and price
paid, classified as follows: First, cost of provisions including the por-
tion eonsunied by the f unil}' of the jailer or master: Second, cost of cloth-
ing: Third, cost of beds and bedding: Fourth, cost of medicines: Fifth,
cost of medical attendance: Sixtli, cost of instruction, religious or oth-
erwise: Seventh, cost of fuel : Eighth, cost of light : Ninth, allowance to
discharged prisoners: Tentli, allowance to witnesses in money or clotliing.
The prison book, verified by the oath of the jailers or masters, shall bo
exhibited to the commissioners or directors when their accounts are pre-
sented for examination, and at other times when demanded. A jailer
or master who neglects to keep such book, or to enter therein such facts,
or wilfully makes any false entry therein, shall forfeit one hundred dol-
lars, to be recovered by the directors or commissioners in an action of
tort in the name of the county, or, in Suffolk, of the city of Boston,
and expended by them tor tlie relief of discharged convicts.
INSPECTORS OF PEISOXS.
Inspectors of Sect. 62. Tlic Commissioners for tlie several counties, and in the
prisons,&c. countv of Suftbllc the iudse of the probate court and the iusticcs of the
K. S. liS^ § .». . .* 111,. /» I • . T • •
1813,01, §2. police court, shall be inspectors ot the prisons in tlieir counties.
Keepers, &c., to Sect. 63. The keeper, master, or superintendent, of each jail, house
make stated re- of correction, or Other place of confinement reciuired to be inspected,
turns. in» ..1 1 'I' 1
R. s. 143, §23. shall at least twice m each year make returns to said inspectors, at such
1843, 01, §2. ^jj_^_^g ,||^|| jj^ g^jpjj form as they direct, setting forth the name, age, and
residence, if known, of each person who is or has been in custody since
the last return, the cause of imjn'isoninent, and the manner in which he
has been treated and employed, the punishments inflicted, and tlie iianies
of all persons who have died, escaped, been pardoned, or discharged,
with all other circumstances require<l by the inspectors.
Inspectors, Sect. 64. The commissioners shall twice in each year, at intervals not
powers an u- gxceeding eight months, by themselves or a committee of not less than
i^|-„i«'§ 29- two of their members, visit and inspect all the piasons in their county,
and fully examine into every thing relating to the government, discii)line,
and police, thereof The committee shall as soon as may be after each
inspection make and subscribe a detailed report to the commissioners,
Chap. 1V8.] returns respecting jails and houses of correction. 867
stntins: the conrlition of ench prison as to lionltli, cleanliness, and disci- inspectors of
plinc, at the time of inspection; the number of persons confined there !^ddutle8*of!"
within the six months next preceding, or since the last insjiection, and
for what causes ; the manner in which any convicts have been employed;
the number of persons usually confined in one room; the distinction, if
any, usually observed in the treatment of the ditferent classes of persons
detained in such prisons; the punishments inflicted ; any evils or defects
in the construction, discipline, or management, of such prisons; the names
of the prisoners who have died, escaped, been pardoned or discharged;
and whether any of the provisions of law in relation to such prisons
have been violated or neglected, with the causes, if known, of such
violation and neglect.
Sect. 65. The inspectors in the county of Sufl:olk shall at tlie times in Suffolk,
and in the manner mentioned in the preceding section, by a committee JLf'jW'io?*'
ot not less than three oi tlieir members, visit and inspect the jail, house
of correction, and all other places of iniprisonnient and confinement
established by law in the city of Boston. The committee shall as soon
as may be after each inspection make and subscribe such a detailed
report to the aldermen, in relation to the prison in the city of Boston,
as is required bj' the preceding section to be made to the commissioners
in their respective counties.
Sect. 66. When the inspectors or any of them visit any of said pris- to have access
ens, either for the ]nirpose of ins]iection or any other cause, the sherift", J.oimts'pHson-
master, keener, or other officer havino; charge thereof, shall admit them crs, &c'.
when required into every apartment of such prison, exhibit all books, ' ' ' ' '
precepts, documents, accounts, and papers, relating to the concerns of
the prison, or to the detention or confinement of any person therein,
which may be required, and aftbrd to them such aid as may be rccpiested
in the performance of an\" part of their duties. The inspectors or their
committee may examine on oath to be administered by one of them,
either by interrogatories in writing to be answereil in writing and sub-
scribed, or otherwise as they may direct, an}' ofhcer, kee|icr, or other
person, in relation to the concerns or management of any jirison ; they
may also apart and without the presence of any ofticer or keejier eon-
verse with any of the prisoners.
Sect. 67. If it appears to the inspectors, from the rejiort of their to notify dis-
committee or otherwise, that any of the provisions of law in relation to t'ioi'atious'ot^ °^
prisons have been violated or neglected in their county, they shall forth- ia«-.
with give notice thereof to the district-attorney. ' ' ' '
EETUKNS.
Sect. 68. The inspectors shall on or before the fifteenth day of Octo- inspectors to
ber in each year cause to be transmitted to the governor authentic "cturnTto'^ov-
copies of any information by them given to the district-attorney in rela- crnor.
tion to any violation or neglect of the law respecting prisons, and a imo,' ]r>, § I.'
statement of the expenses incurred in providing moral and religious jjjj:;' -^' § -■
instruction for the prisoners confined in the jails and houses of correction isasUui
in their respective counties, with such further statements and sugges-
tions as may in their opinion require the attention of the government.
Sect. 69. The secretary of the commonwealth shall annually in ninnk forms of
Se]itember furnish to the sheriffs and board of directors for public insti- f,1r",i"|^j,Ji''|,y''
tutions in the city of Boston, blank forms of returns concerning jails secretary.
and houses of correction, for the year ending on the last day of Septera- ^^^'' '^'*' ^^ ''~"
ber, containing the following interrogatories, and with the two following
sections printed thereon.
Jails.
Number of prisoners in jail October first ; committed during the year ; males ;
females ; adults ; minors ; whites ; colored ; natives of this state ; natives of other
868
RETURNS RESPECTING JAILS AND HOUSES OP CORRECTION. [ChaP. 178.
Returns re-
specting jails.
respecting
Iiouses of cor-
rection.
Sheriffs, &c., to
make returns.
Abstmct.
ItHO, 15, § 2.
1857, 35, § 10.
185.S, 46.
ISofl, 139, §§ 1, 2.
See § 21.
Penalties for
ney:Iect.
\!^7, .15.
1,S3?, 200, §§ 1-3.
1839, 139, § 3.
Prosecution of
delinquents.
1859, 139, § i.
states ; natives of other countries ; who cannot read. nor write ; natives of Massachu-
setts who cannot read nor write ; who have been married ; who liave been intemperate ;
who have been in prison before ; committed as insane ; for debt ; as witnesses ; for
trial or examination ; sentenced for murder ; manslaughter ; setting fires ; robbery ;
rape ; attempts at rape ; adultery ; lewd conduct ; assault ; burglary ; perjury ;
forgery ; larceny ; making or passing counterfeit money ; drunlvcnness ; as common
drunkards ; for violation of liquor law ; keeping houses of ill tame ; for all other
offences ; dischaigcd by writ of habeas corpus ; by being recognized or bailed ; by
payment of fines and costs ; by expiration of sentence ; as poor convicts unable to
pay lines and costs ; transferred to other jails for trial ; sent to court and not returned ;
executed ; sent to the state prison ; sent to the house of correction ; sent to the state
reform school ; escaped and not retaken ; of debtors discharged on payment of debt ;
discharged by taliing poor debtor's oath ; by order of creditor ; of witnesses dis-
charged ; of prisoners that died ; discharged by processes not specified above ; remain-
ing in confinement September thirtieth. Average number of prisoners.
Amount expended for provisions ; clothing ; fuel ; light ; medicines ; medical
attendance ; lieds and bedding ; instruction ; allowance to discharged prisoners ; to
witnesses ; otiicers' salaries ; expenses of all kinds.
Value of the labor of prisoners.
Houses of Correction.
Xumber in confinement October first ; committed during the year ; males ; females ;
adults ; minors ; wliites ; colored ; natives of this state ; natives of other states ;
natives of other countries ; who cannot read nor write ; natives of Massaelm-;etts who
cannot read nor write ; wlio have been married : who have been intemperate ; who
were insane when committed ; who became insane in prison ; who have been in prison
before ; committed for adultery ; lewd conduct ; keeping houses of ill fame ; assault ;
violation of liquor law ; drunkenness ; as common drunkards ; for larceny ; vagrancy ;
all other offences ; discharged on expiration of sentence ; on payment of fines and
costs : as poor convicts unable to pay fines and costs ; on habeas corpus ; on account
of sickness ; on account of insanity ; by order of overseers ; escaped and not retaken ;
that have died ; discharged by processes not specified above ; remaining in confinement
September thirtieth. Average number of prisoners.
Amount expended for provisions ; clothing ; fuel ; light ; medicines ; medical attend-
ance ; beds and bedding ; instruction ; allowance to discharged prisoners ; othcers'
salaries ; expenses of all kinds.
Value of labor of prisoners.
Sect. TO. On or before tlie fifteenth day of October in e.ach ye.Tr, in
the county of Suffolk, tlie boanl of directors for )iublic institutions shall,
in relation to houses of correction, and the sherili'in relation to jails, and
in each of the other counties the sheriff in relation to both jails and
houses of correction, shall make an<l transmit to the secretary of the
commonwealth true answers to the inquiries contained in said blanks.
The secretary shall prepare and transmit an abstract thereof, in a j)rinted
form, to the legislature at the ensuing session thereof.
Sect. 71. Every sheriff who omits to make and transmit, according
to the preceding section, true answers to such incjuiries, and every
director, when his board omits to make and transmit such answers, shall
forfeit one hundred dollars.
Sect. 72. The secretary, when he finds that a shcvift' or director is
liable to a forfeiture under the preceding section, sh.all forthwith notify
the district-attorney for the district in which such overseer or director
resides, who shall immediately institute a complaint therefor, and the
forfeiture recovered shall be applied by the county tor the relief of dis-
charged convicts.
Chap. 179.]
STATE PRISON.
869
CHAPTER 179.
OF THE STATE PRISON.
general provisions.
Section
1. State prison and penitentiary established.
2. Concurrentjurisdictiou of Suffolk and Mid-
dlesex.
3. Process, how served within the prison.
4. Governor "and council may provide addi-
tional cells and buildiuf^s.
5. annual visitation by ; dutiep and powers of.
6. may draw warrants for money appropri-
ated.
OFFICERS AND SALARIES.
7. Officers.
8. Appointment, &c., of inspectors.
9. warden, chaplain, piiysiciau, and sur-
geon.
10. deputy-warden and other officers.
11. "Warden to report appointments.
12. Officers to have no other business.
13. Salaries of officers, and how paid. No per-
quisites except, &c.
INSPECTORS.
14. 15. Inspectors, authority and duty of.
16. to examine books, &C., semiamiuaUy.
17. to approve bills.
18. to report violations of law, &c., and make
detailed report.
CHAPLAIN.
10. Duty of chaplain.
PIIYSICL\N AND SURGEON.
20, 21. Duty of physician and surg-con.
22. Care and treatment of sick convicts.
WARDEN AND DEPUTY-WARDEN.
23. Warden to give bond.
24. Kemoval of convicts to state prison.
25. Kesidonce of warden and deputy. Officers
to perform duties required by warden, Ac.
Warden may propose alteration of rules,
&e.
to have charge of prisoners, &c.
to have chai'ge of prison, and be treas-
urer,
accounts of, to be settled annually.
30. Duty of deputy in absence, &c., of warden.
31. Power of inspectors as to deputy-warden
when the office of warden is vacant. War-
den pro tempore.
CONTRACTS.
32. Contracts made by warden, and approved
by inspectors. Suits thereon.
33. Warden may submit controversies to arbi-
tration.
34,35. Contracts, how made. Proposals there-
for.
2G,
27.
2S.
29.
Section
30. Officers not to be interested in contracts,
&c.
37. Bills to be taken of all purchases, services,
&c.
DISCIPLINE, &C., OF CONVICTS.
3S. Treatment of convicts.
39. Warden's power to maintain order, &c.
40. Convicts, how employed,
41. Solitary labor and corporal punislimcnt.
42. Solitary imprisonment.
43. Sunday school and other instruction.
44. Convicts to be kept separate.
45. interviews of, with their friends.
46. communications between, and friends,
47. Newspapers and visitors.
48. Visitors to have permit.
49. warden to keep register of.
50. Warden may refuse admission to,
RECORD OF CONDUCT.
51. Record of conduct. Deduction from sen-
tence.
52. to be submitted to gt)veruor and council.
ESCAPES, &c.
53. Punishment for escape, &c., when sen-
tenced for years.
54. when sentenced for life.
55. Punishment of officer, &c., suffering escape.
56. leaving prisoner at large, or other unlaw-
ful indulgence.
57. aiding in escape or rescue.
58. illicit conveyance of articles into prison,
&c.
RATIONS, CLOTHING, &C., OF CONVICTS.
59. Warden, &c.,to make regulations respect-
ing rations, &c.
60. Subsistence and diet in the hospital.
01. Rations, &c., may be varied, &c.
G2. Prison to bo ventilated and prisoners fur-
nished with baths.
DISCHARGED CONVICTS.
63. Convicts when discharged, to be decently
clothed, &c.
G4. Agent for discharged convicts, appoint-
ment and duties of.
65. office of.
CO. to keep account of expenditures, and pre-
sent account, not exceeding $jo0, to state
auditor.
67. may receive from warden money for dis-
charged convicts.
6S. returns of. Salary.
GEXERAL PROVISIONS. ^*
Section' 1. The state prison in Charlestown in the county of Mid- state prison '
dlesex shall be the general penitentiary and ]irison of the common- tTiry^^taw' h
wealth for the reformation as well as for the jjnnishniont of male offend- t^J-
ers; in wliich shall be securely confined, employed in hnrd labor, and Rliiiwjf/i;
governed in the manner hereafter directed, all offenders convicted Ix^fore ^^\
any court of this state, oi-, except as provided in section sixtv-one of chap- ^^^' ^^^' ^ ^^'
870
STATE PRISON — OFFICERS AND SALARIES. [ChAP. 179.
Concurrent ju-
risdiction of
Sufl'olk and
Middli'sux.
E. S. 144, § 43.
11 Picli. -is.
Process, how
served witliin.
R. S. 144, § -Jj.
Governor and
council may
provide addi-
tional cells and
buildinf^s.
E. S. 144, § 50.
annual visita-
tion by ; duties
and power of.
E. S. 144, § 4U.
may draw
warrants for
money .tpijro-
priated.
It. S. 144, §51.
Officers.
K. S. 144, §§ 2
1S50, -itiil, § J.
1852, 242.
1857, 122, § I.
Appointment,
&u., of in-
spectors.
1830,3;, §5 1,2,
3,4.
warden, chap-
Iain, physician,
and surgeon.
1{. S. 1-H,54.
deputy-war-
den and'oth.T
officers.
E. S. 114, 5.5.
1857, 122, § 1.
ter one Imndrcil and forty-four, .anj' court of the United States held
within the lii.strict of jM;i.»isaeliusetts, and sentenced accordinix to law
to tlie punishment of solitary imprisonment and confinement therein
at hard labor.
Sect. 2. For the ]nirposc of all judicial proceedings, the prison and
])recincts thereof shall be deemed to be within and a i)art of the county
of Suffolk as well as the county of Middlesex, and the courts and magis-
trates of the counties of Suffolk and Middlesex: shall have concurrent
jurisdiction of all crimes and offences committed within the same.
Sect. 3. All process to be served within the precincts of the prison
shall be directed to and served and returned by the warden or his
dejjuty.
Sect. 4. The governor with the advice and consent of the council
may from time to time cause ."idditional buildings to be erected, or alter-
ations to be made in the existing buildings of the prison, so that there
shall be at all times as many separate cells as there are convicts in the
prison. He may in like manner cause such additions or alterations to
be made as are found necessary for the accommodation of the offi-
cers required by law to reside constantly within the precincts of the
prison.
Sect. 5. The prison shall be visited by the governor and council
annually, and as much oftener as they may think proi)er, for the jnir-
])ose of examining into its concerns and ascertaining its condition.
They shall inquire into all alleged abuses or neglects of duty, and may
make such alterations in the general discipline of the prison as they find
necessary.
Sect. 6. When an ajqiropriation of money is made by the legislature
for the su]iport of the prison, the governor with the consent of the
council shall draw a warrant in fa\'or of the warden, either for jiortions
thereof from time to time, or for the whole amount at one time, as he
thinks proper.
OFFICEES AND SAL.VEIES.
Sect. 7. The officers of the jjrison shall consist of three inspectors,
one warden, one deputy-warden, one chaplain, one phj'sician and sur-
geon, one clerk, eleven turnkeys, ten permanent watchmen, and as many
additional watchmen, not exceeding seven, as the warden and inspectors
may find necessary, and as many assistant watchmen, not exceeding five,
as the warden may deem necessary.
Sect. 8. The inspectors shall be ajipointed by the governor with the
advice and consent of the council, subject to removal in like manner.
Those now in office shall continue so for the terms of their respective
appointments unless sooner removed by the governor and council. One
inspector shall be apjiointed annually in April for three years ; and the
governor sliall annually in the same montli designate one inspector
to act as chairman. Appointments to fill vacancies caused by dcatli,
resignation, or removal before the expiration of terms, sh.all be for the
residue only of sudi terms ; and no inspector shall be reappointed until
one ye.ar after the exjiiration of his term.
Sect. 9. Tlie warden, chaiilain, and ]iliysician and surgeon, shall be
a]ipointed by the governor with the advice and consent of the coun-
cil, and commissioned to liold their offices during the pleasure of the
executive.
Sect. 10. The dejiuty-warden and all other officers except the as-
sistant watchmen shall be ajipointed by the warden, subject to the
approv.al of the inspectors, ami shall liold their offices during the pleas-
ure of the warden and inspectors ; but if the warden thinks any such
officer ought to be removed, and tlie in.spectors do not consent thereto,
the warden may apj^eal to the governor and council, who after reason-
Chap. 179.] state prison — inspectors. 871
able notice to tlie inspectors may make sxicli removal. The assistant
watchmen shall be appointed by the warden, and shall hold office during
his jilcasnre.
SEfT. 11. The warden shall immediately report to the inspectors .all Ward™ to re-
appointments made by him. r. s. i44, §6. mcntB''''"'"*
Sect. 12. Neither the warden nor any officer appointed by the war- officers to iiavc
den and inspectors shall be emjiloyed in any business for priv.ate emol- ""gg""^'' ''''""
iiment, or which does not pertain to the duties of his office. it. s. i«,§r.
Sect. 13. The officers of the prison shall receive the followins; an- Sainries of oib-
nual salaries, viz.: each inspector, two hundred dollars; the warden, paui'°N'o''ner-
twenty-five hundred dollars; the deputy-warden, fifteen hundred dol- quisit^s, ex-
lars ; the chaplain, eleven hundred dollars; the physician and surgeon, i{.'s'. m, §8.
seven hundred dollars; the clerk, twelve hundred dollars; each turn- '''*'}M-?f'' f '•
key, eiylit iiundred dollars; each watchman, seven hundred and fifty is,->rrr,",>' §■,'.'
dollars; and each assistant watchman, six hundred dollars; payable in J^y'ojo'*''
montlily payments by the warden out of the treasury of the prison, and
in full for all services. No other perquisite, reward, or emolument, shall
be allowed to or received by any of them, except that there shall be
allowed to the warden and deputj'-warden sufficient house room with
fuel and light for themselves and families.
INSPECTORS.
Sect. 14. The inspectors shall from time to time establish rules and inspectors, au-
regulations consistent with the laws of the state, for the direction of the Jfit'-'^f'""'
ofKccrs of the prison in the discharge of their duty, the government, u. s. i«, §9.
cmpliiyment, and discipline, of the convicts, and the custody and pres-
ervation of the public ]n-operty. As soon as may be after the estab-
lishment of any such rules and regulations, they shall cause authentic
copies thereof to be laid before the governor and council, who may ap-
prove, annul, or modify, the same ; and the inspectors shall cause a copy
of all rules and regulations so a])])roved to be certified as soon as may
be by the clerk of the prison and delivered to the warden.
Sect. 15. The inspectors or one of them shall visit the prison at same subject,
least once in each week, and it shall be visited by the board of inspect- k. s. i-h, §io.
ors once a month, and oftener if they think necessary, for the ])urpose
of ins])ecting the books and all the concerns of the prison, and ascer-
taining whether the laws, rules, and regulations, relating to the jjrison,
are duly observed, the officers competent and faithful, and the convicts
projierly governed and employed.
Sect. 1G. All books and documents relating to the concerns of the to examine
prison shall at all times be open to the examination of the insj)ectors, scmhnmmiiv
who shall semiannually careful!}' examine said books and compare them R- s.' h4,'§ ir."
with the vouchers and documents relating thereto.
Sect. 17. All bills contracted by the warden for pm-chases on to approve
account of the prison, shall be apjiroved by one or more of the inspec- jk'-'-'oqq
tors, before iiayment.
Sect. 18. The inspectors shall forthwith report to the governor and to report vio-
council all violations of law and omissions of duty by the warden, Aj'^jind make
chaplain, or phvsieian and surgeon, coming to their knowledrje ; and detailed report.
• •• CT' O C?' Tf^ 14-1 S 11
every officer holding his place at the pleasure of the ins])eetors and 1857/40. ' '
warden, found unfaithful or incom])etent, or known to use intoxicating J^?''*'?^
liquors as a beverage, shall be by them forthwith removed : the inspect- iswl 155.'
ors shall also on or before the fifteenth day of October in each year
make a det.ailed report to the governor and council for the j'car ending
on the last day of the preceding month, stating therein the names of
the officers of the prison, with their se^•eral salaries, the name of each
contractor in the jjrison, with the number of convicts enqiloyed by him,
their daily pay, and the amount of their individual earnings, the num-
872
STATE PRISON — CHAPLAIN, PHYSICIAN, WARDEN. [ChAP. 179.
ber of volumes in the prison library, nncl tlie cost of each addition to
and change in tlie prison buildings, together with a full statement of
all the concerns of the prison.
Duty of chap-
lain.
R. S. 1«, § 12.
CHAPLAIN.
Sect. 19. The chaplain shall peifonn divine service in the chapel of
the prison, instruct the convicts in their moral and religious duties, visit
the sick on suitable occasions, and devote his whole time to the per-
formance of tlie duties of his office.
Duty of physi-
cian and sur-
geon.
K. S. 1«, § 1.3.
Same subject.
lso9, 254.
Care and treat-
ment of Kick
convicts.
K. S. in, § 14.
PHYSICIAN AXD SUKGEON.
Sect. 20. The physician and surgeon shall visit the hospital of the
prison at least once in each day, and as much oftener as necessary, pre-
scribe for convicts who are sick, and attend to the regimen, clothing,
and cleanliness, of such of them as are in the hospital. He shall keep
a regular journal, which sliall remain at the prison, of all admissions to
the hospit.al, stating the time of admission, the nature of the disease,
his prescriptions, the treatment of each jiatient, and the time of his dis-
charge from the hospital, or of his death. The journal shall also con-
tain entries of all orders given for supplies for the hospital department,
specifying the articles ordered. All such orders shall be in writing, and
the warden shall provide the supplies so ordered.
Sect. 21. He shall attend upon all insane convicts, and, when in
his opinion it can be done without detriment or danger to the other
patients or inmates of the prison sliall direct their removal to the prison
hospital, and see that they have sufficient daily exercise outside their
cells or places of confinement.
Sect. 22. When a convict complains of such illness as requires
medical aid, notice thereof shall be given to the jihysieian, who shall
visit the convict, and if in the opinion of the physician the illness is
such as to require his removal to the hosjiital, tlie warden may order
such removal, and the convict shall remain in tlie hospital until the
physician determines that he may leave it without injury to his health.
Warden to give
bond.
K. S. 144, §15.
WAEDEX AXD DEPUTY-WARDEN.
Sect. 23. Before the warden enters upon the duties of his office, he
shall give bond to the commonwealth in the sum of twenty thousand
dollar.s, witli sufficient sureties to be ai)])roved by the governor and
council, conditioned that he shall faitlifully account for all money placed
in his hands as treasurer, and ])erform all the duties incumbent on him
as warden. Such bond with the approval of the sureties indorsed there-
on shall be filed in the office of the treasurer of the commonwealth.
Sect. 24. When the wai'den receives a warrant from a sherilf in the
manner j^rescribed in chapter one hundred and seventy-four, requiring
him to cause a convict to be removed from the jail to the state prison
pursuant to his sentence, he shall by himself or such person as he ap-
points for the purpose, as soon as may be, cause such warrant to be duly
executed, make return of the manner in which he has caused the same
to be executed, file the warrant and the return, with the transcript of
the record, in his office, and cause an attested copy of the warrant and
of his rctnrn thereon to be filed in the office of the clerk from whence
it was issued. All sheriffs, jailers, and other officers, are enjoined, if
need be, to aid the warden or jierson by him appointed in tlie execution
of such warrant.
Residence of Sect. 25. The warden and deputy-warden shall reside constantly
wardenanddep- ^.itjjjm tjjg pvecincts of the prfson ; and the deputy-warden, clerk, watch-
Removal of con-
victs to state
prison.
E.S. 144,120.
Chap. 179.] state prison — contracts. 8
(O
men, and assistant watchmen, shall perform such duties in the charge uty. officers
and oversight of the prison, the care of the property thereto belonging, tk-s rcquircd'by
and the custody, government, employment, and discipline, of the con- """^den, &c^
victs, as is required of tliem by the warden in conformity to law and i857,"i22,'§if'
the rules and regulations of the prison.
Sect. 26. The warden shall from time to time propose in writing to Warden mny
the inspectors, such alterations as he thinks advisable in the rules and I'ion'uf ruler"
rearulations for the direction of the officers and the erovemment of the *«•
? = K. S. 144, § fi.
prison.
Sect. 27. He shall have the charge and custody of all convicts in to have
the prison, and shall govern and employ them in the manner jirescribed oncrsT&e.''"^
by law and pursuant to their respective sentences and the rules and k. s. i«, §§25,
regulations of the prison, until their sentences are perfomied or they
are otherwise discharged by due course of law.
Sect. 28. He shall have the charge and custody of the prison, with to have
the lands, buildings, furniture, tools, implements, stock, jirovisions, and oiwimi be troas-
everv other species of pronertv pertainint; thereto or within the pre- V"^'"-
• : ^l } TT 1 11 T .. i-?l • 1 1 11 • It. S. IH, §lfi.
cmcts thereof. He shall bo treasurer of tlio prison, and shall receive
and pay out all money granted by the legislature for the sup]iort thereof,
and shall cause to be kept in suitable books regular and complete
accounts of all the jirojjerty, expenses, income, business, and concerns,
of the establishment.
Sect. 29. He shall, as soon as may be after the last day of Septcm- accounts of,
ber in each year, cause to be made full and detailed accounts, to be nuaiiy!^
closed on that day, of all the disbursements, expenses, receipts, and 'fs. i«, §i8.
profits, of the prison, accompanied by sufficient vouchers, which accounts
after having been examined and approved by tlie inspectors shall be
deposited and filed in the office of the treasurer of the commonwealth,
for the ins]3ection of the legislature.
Sect. 30. When the office of warden is vacant, or the warden Puty of deputy,
absent from the prison or unable to perform the duties of his office, the "f warden?''"''
deputy warden shall have the powers, jierfonn the duties, and be subject H- s. i«, §20.
to the obligations and liabilities, of the warden.
Sect. 31. If the office of warden becomes vacant when the governor powcrof in-
and council are not in session, the insiiectors may require the dejiut}-- fiijjju'ty^arden
warden to give a bond to the commonwealth in the sum often thousand when the offlee
dollars, with sufficient sureties to be by them approved, conditioned "acant. "^ War-
for the fliithful performance of the duties incumbent on him as deputy- A"]j>i-otem-
wardeii and treasurer until a warden is ajipointed ; and from the time it. s. H4, §27.
such bond is approved, the deputy shall, so long as he jierforms the
duties of the office, receive the salary of the warden in lieu of his for-
mer salaiy. If the deputy-warden does not give such bond when
required, the inspectors may remove him from the office of warden and
appoint a warden pro te7nj)ore, who shall give such bond and shall have
the power and authority, perform the duties, and receive the salary, of
the warden, until a warden is duly appointed and enters ujjou the dis-
charge of the duties of the office.
%
CONTRACTS.
Sect. 32. All contracts on account of the prison shall be made by contracts made
the warden in writing, and when approved in writing liy the inspectors !^,L7ovo™by'"'
shall be binding; and the warden or his successor may sue or be sued iiiBpectors.
thereon to final judgment and execution. No such suit shall abate by k" s' i447§ 1".'
reason of the office of warden becoming vacant, but any successor of ^ rick. 17.
the warden, pending such suit, m.ay take upon himself the prosecution ii jiet. 137.
or defence thereof, and upon motion of the adverse party and notice ^'J^ay'^l^"'
he shall be required so to do.
Sect. 33. When a controversy arises respecting any contract made warden may
110
874
[Chap. 179.
Eiibmit contro-
vcTsies to arbi-
tration.
K. S. 1«,§20.
Contracts, how
made.
Proposals
therefor.
K. S. 144, §21.
Same subject.
K. S. 144, §§ 32,
23.
Offlcors not to
be interested in
contracts, &e.
R. S. 144, § 2:j.
Bills to be taken
of all pur-
chases, ser-
vices, &c.
H. S. 144, § 24.
by the warden on account of the prison, or a suit is pending thereon,
the warden may submit the same to the final determination of abitrators
or referees to be ajjproved by the inspectors.
Sect. 34. When it can be advantageously done, the principal articles
purchased for the use of the prison shall be contracted for by the year.
The warden shall give previous public notice, in two newspapers at least,
of the articles wanted, the quantity and quality thereof, the time and
manner of delivery, and the ])eriod during which proposals therefijr will
be received ; which notice shall be published a sufficient time for the
information of persons who may desire to offer proposals.
Sect. 35. All such proposals shall be in writing and sealed up, and
on the day apjjointed they shall be opened by the warden in presence
of the inspectors, who shall cause them to be entered in a book and
compared. The person olfering the best terms, with satisfixctory security
for the performance, shall be entitled to the contract, unless it appears
to the warden and inspectors that none of the offers are so low as the
fair market price ; in which case no offer shall be accepted, and tlie
warden, with the consent of the inspectors, may proceed to make con-
tracts for any of the articles wanted for the prison, in the best way he
can for the interest of tlic commonwealth. Every such contractor shall
give bond in a reasonable sum with satisflictory surety or sureties for
the performance of his contract.
Sect. 36. No officer of the prison shall be concerned or interested
directly or indirectly in any contract, purchase, or sale, made on account
of the prison.
Sect. 37. The warden shall take bills of the quantity and price of
supiilies furnisheil for the prison, at the time of the delivery ; and tlie
clerk, or such officer as the warden directs, shall compare the bills with
the articles delivered. If the liills are found correct, he shall enter them
with the date upon a book to be kept for the pui-jjose. Bills of all ser-
vices rendered for the prison shall be taken and entered in like manner.
If a bill for supplies or services is discovered to be incorrect, tlie clerk
shall omit to enter it, and immediately give notice to the warden, that
the error may be corrected.
Treatment of
convicts.
R. S. 144, §52.
Warden's
power to main-
tain order, Ac.
K. S. 144, § 4S.
Convicts, how
omploved.
R. S. 144, § :m.
1850, asa, § 4.
Solitary labor.
IsjO, -Mil, § 1.
Solitary impris-
onment.
E,S. 144, §32.
DISCIPLINE, &C., OP CONVICTS.
Sect. 38. The warden and all officers of the prison shall treat the
convicts with kindness, so long as they merit such treatment by tlieir
obedience, industry, and good conduct.
Sect. 39. All necessary means shall be used, under the direction of
tlie warden, to maintain order in the prison, enforce obedience, suppress
insurrection, and prevent escapes, for wliich purpose he may at all
times require the aid and utmost exertions of all the officers of the
institution, the inspectors, chaplain, and pliysician, excepted.
Sect. 40. Convicts sentenced to the jmnishment of hard lalior in the
prison shall lie constanth' employed for the benefit of tlie state, but no
convict shall be employe(l''fn engraving or printing of any kind.
Sect. 41. Tlie wanlen, with the consent of one or more of the in-
spectors, may, for such time as they deem necessary to produce peni-
tence, or so long as they think ex])edient for the promotion of good
order and disci]iline, confine to solitary labor such convicts as are ob-
stinate and refractory.
Sect. 4'2. Convicts against wliom the punishment of solitary im-
prisonment is awarded by sentence of court, or who are subjected to it
for violating any of the rules and regulations of the prison, shall be con-
fined in one of the solitary cells, and during such confinement shall be
fed with bread and water only, unless the physician of the prison certi-
fies to the warden that their iiealth requires other diet.
Chap. 179.] state prison — record of conduct. 875
Sect. 43. The warden, with the consent of tlie inspectors, may cause Sunduv school
a Sabbatli school to be maintained in the j)rison, for the instruction of "",Ij,^\in"" '""
the convicts in their religious duties, and permit such persons as they istn, 152, §n.
• 1 848 "i'^-i § t
deem suitable to attend tiie same as instructors, under such rules and see ch. iVs, § 40.
regulations as the inspectors may establish. And the wanlen and in-
spectors may furnish suitable instruction in reading and writing for one
hour each evening excejit Sundays, to all such prisoners as may be
benefited thereby and desirous to receive tlie same.
Sect. 44. No communication sliall be allowed lietween the convicts cmivicts to bo
an<l any person witliout the prison. They sliall be confined in separate !j,''''i "T;"'".!i;-
,1 . , • 1 • 1-11 * 11 • 1 1 n. a. H4, §.33.
cells in the night tune, ami m the day time all intercourse between them
shall, as far as is practicable, be ])revented.
Sect. 45. Tlie inspectors and warden may make such regulations as interviews of,
they think necessary or expedient in relation to interviews of the con- frjenci'!'^"^
victs with their friends from without the jirison ; during wliich inter- is5i,2ii5, §1.
views the convicts and persons in communication with them sliall be
under the eye of the warden, or of some officer of the prison designated
by him.
Sect. 46. The warden may at such time and under such circum- communica-
stances as he deems expedient, with the consent of the inspectors, make JSmends™'
known to the convicts the whole or parts of any communications received isji, auo, §->.
by him from their friends without the prison, and he may in like man-
ner make known to their friends communications made to liim by
prisoners.
Sect. 47. The warden and inspectors may adopt such regulations Newspapers
not inconsistent with the laws relating to the government of the lu-ison, i'v^n^oKo"sl'
in relation to the introduction 01 newspapers into the prison, and in
relation to visitors, as they deem necessary or expedient.
Sect. 48. No persons other than the executive government of the visitors to iiave
commonwealth, members of the legislature, officers of justice, or otlier i'55™';,v._ 5 ,
persons having business at the prison, shall be allowed to visit it without
a special permit from one of the inspectors or the warden.
Sect. 49. The warden shall cause a register to be kept of the names waiden to
and residences of all persons so visiting, and of the authority by which p"''' ''<^s''^*'-'''
they visit ; which register shall at all times be open to the ins])cctors. ik;4, soj, §3.
Sect. 50. The warden may refuse admission to any jicrson having a wardcu may
permit, when it appears that such admission would be injurious to the stoi'/'&lf"""
best interests of the prison, but he shall report such refusal to the in- issj,' 302, § 3.
specters at their next monthly meeting.
EECOED OF conduct.
Sect. 51. The warden shall keep a record of the conduct of each Record of eon-
convict, and for each month that a convict appears by such record to i"*",*- ^.
have foithfully observed all the rules and rc(]uirements of the prison sentence.
and not to have been subjected to ]iunishment, there shall, with the '857, 2Si, §1.
consent of the governor and council, be de<lucted from the term or
terms of his sentence, as follows : from a term of less than three years,
one day ; from a term of three and less than seven years, two days ;
from a term of seven and less than ten years, four daj's ; from a term of
ten years or more, five days.
Sect. 52. Said record and scale of deduction, or any part thereof. Record to be
shall be submitted liy the warden to the governor and council when Bubmitted to
required by them, that the same may be considered in tlie exercise of council.
such executive clemency on behalf of any convict, as they may deem i**''"' 284, § 2.
conducive to the interests of the prison and promotive of the reformation
and welfare of the convicts.
876
STATE PRISON — ESCAPES, RATIONS, CLOTHING, &c. [ChaP. 179.
Punishment for
escape, &c.,
when sen-
tenced for
years.
R. S. 1«,§37.
when sen-
tinieed for life.
It. S. !«,§:«.
Punishment of
officer, &c., suf-
fering escape.
E. .S. 1«, §39.
leavinj^ pris-
oner at largo,
or other unlaw-
ful indulgence.
K. S. !«,§«.
aiding in es-
cape or rescue.
K. S. 144, §il-
illicit convey-
ance of articles
into prison, &c.
1S38, 152, § 1.
ESCAPES, &C.
Sect. 53. If a convict under sentence for any limited time escapes
from the prison, or attempts by violence to escape, or assaults the war-
den, an inspector, or other officer or person employed in the government
or custody of tlie prison, he shall, in addition to his former sentence, be
punished by imprisonment in said prison not exceeding ten year.s, and
also by solitary imprisonment not exceeding one year, to be executed
forthwith, or at such time or times cither before or alter the expiration
of any former sentence, as the court directs.
Sect. 54. If a convict under sentence of imprisonment for life es-
capes from the prison, or attempts by violence to escape, or commits any
such assault as is mentioned in the preceding section, he shall be jni'ii-
ished by solitary imprisonment not exceeding one year, to be executed
at such time or times as the court directs.
Sect. 55. If an officer or other person employed in the prison vol-
untarily suffijrs a convict confined therein to escape, or in any way
consents to such escape, he shall be punished by imprisonment in said
prison not exceeding twenty years.
Sect. 56. If an officer or person employed in the prison suffers a
convict under sentence of solitary confinement to be at large or out of
the cell assigned to him, or suffers any convict confined in the prison to
be at large out of the jirison, or to be visited, conversed with, or in any
way relieved or comforted, contrary to the regulations of the prison, he
shall be punished by fine not exceeding five hundred dollars.
Sect. 57. Whoever conveys into the prison any disguise, instru-
ment, tool, weapon, or other thing, adapted or useful to aid a convict in
making his escape therefrom, with intent to ficiUt.ate the escape of any
convict there lawfully committed or detained, whether such escape is
effected or attempted or not, or by any means aids a convict in his
endeavor to escape, and whoever forcibly or fraudulently rescues or
attempts to rescue a convict held in custody under sentence of imjn-is-
onmcnt in the prison, shall be ])unished by imprisonment in said prison
not exceeding ten years, or by fine not exceeding five liundred dollars.
Sect. 58. Whoever delivers or procures to be delivered, or has in
his possession with intent to deliver, to a convict confined in the prison, or
deposits or conceals in or about the ]irison, or the de|)endencies thereof,
or in any boat, carriage, or other vehicle, going into the jH'cmises be-
longing to the prison, any article or thing, with intent that a convict
confined in the prison shall obtain or receive the same ; and whoever
receives from a convict any article or thing with intent to convey the
same out of the prison, contrary to the rules and regulations thereof, and
without the knowledge and permission of the warden or board of in-
sjiectors, .shall be punished by imprisonment in the state prison or jail
not exceeding two years, or by fine not exceeding five hundred dollars.
rations, clothing, &c., of convicts.
Warden, &c., to Sect. 59. The Warden and inspectors may, with the consent of the
make regui.a- governor and council, make such regulations in regard to the rations,
clothing, and bedding, of the convicts, as the health, well-being, and cir-
cumstances of each convict require ; but all diet, r.ations, clothing, beds,
and bedding, shall be of good qualitj", and in sufficient quantity, lor the
sustenance and comfort of the convicts. No intoxicating liquors shall
be furnished to the convicts.
Sect. 60. The subsistence and diet of the convicts in the hospital
shall be under the direi-tion of the physician; but for all articles of
comfort or indulgence not included in his regular hospital r.'itions, his
order therefor shall be in writing and for a term not exceeding one
week.
tions repectiu]
rations, &c.
1S59, 101.
Snbfiistence and
(li't in the hos-
pital.
K. S. H4, § 46.
Chap. 180.] discharged convicts, transfer of lunatics, &c. 877
Sect. 61. The warden and inspectors may make such variations or Rntions, &c.,
additions in relation to the rations, clotliing, an<l bedding, of the convicts, ^^J '"^ ^"™*^'
as the circumstances of each convict may require.
Sect. Ct2. The |)rison shall be suital)ly and sufheiently ventilated, and Prison to be
each prisoner shall have a weekly bath of cold or tepid water, which p'ris'.incr^fu"'^
shall be applied to the whole surface of the body, unless, by reason of "isiitd with
the sickness of any prisoner, such bath may be hurtful or dangerous. is48, 32i, §§i,2.
DISCHARGED CONVICTS.
Sect. G.S. The warden may pay to any convict leaving the prison. Convicts, when
who in his opinion by good conduct deserves the same, a sum not exceed- i,!*dccentiy" *"
ing five dollars out of the treasury of the ]>rison ; and no convict shall ii"*j"^f/,*5'r,
leave the prison without being furnished with decent clothing. " " ' ''"
Sect. 64. The governor with advice of the council may appoint an Aprent for tiis-
agent to hold office until another is ap]>ointed in his place, who shall vii'ts^fappoint-
counscl and advise, and when and as he deems jiroper and expedient, nirat auu duticB
furnish with clothing, board, and tools suitable for their employment, isia, iro, § i.
such discharged convicts as may seek his aid; and shall take measures I'^^'Sa. §i-
to pi-ocnre emploj'ment for such of them as may desire it, by correspond-
ing with ]K'rsons in mechanical and agricultural pursuits, and with
benevolent persons and associations.
Sect. 65. The office of the agent shall be located either in Charles- office of.
town or Boston. ^'^^' *'«' 53-
Sect. 66. He shall keep an account of the moneys expended by him to keep ac-
for the rent and other necessary expenses of his office, for correspondence d?t"ure°'iuid"^°
and travel to procure employment for discharged convicts, for furnish- present ac-
ing the clothing, board, and tools, required of him by law, and for con- cr^UugSooo^
vevinsj discharsred convicts to their homes or places of emiiloyment when to state auditor.
he deems it ]U'oper to ]iay therefor, which being a]i]iroved by the auditor isiylHc'
of accounts, the governor shall at the end of each qiiai-ter draw his war-
rant on the treasury therefor. But the whole amount so paid for such
expenditures shall not exceed five hundred dollars in any one year.
Sect. 67. The \varden mav in his discretion pay to said agent such may receive
r* 1* ii^'ii .. .1*^1 A i from warden
sums ot money as he is authorized by section sixty-three to pay to con- money for dis-
victs. The agent .shall expend what he thus receives foi- the benefit of <''."''"S'^<' 'o"
o I victs.
such convicts, and account therefor to the auditor. 1852/213, §s.
Sect. 68. He shall, on or before the fifteenth day of October in each returns of.
year, cause to be made to the governor and council a full and detailed iAi'.Ts, § 1.
account of his doings as such agent for the year ending on the last day 5^;'4o''^^'
of the preceding month, and he shall receive for his services five hun- isss,' 46.
dred dollars a year.
CHAPTER 180.
OF THE TRANSFER OF LUNATICS AND DISCHARGE OF POOR CONVICTS.
LUNATICS IN THE STATE miSON.
Section
1. CommisRioners to examine insane convicts.
2. to be notified by warden, &c., of apparent
insanity of convicts.
3. Insane convicts to be removed to hospital,
&c.
LUNATICS IN OTHER PRISONS.
4. Insane persons in prison, how removed to
hospital.
5. if sane before term expires, to be re-
turned.
74
discharge of poor convicts.
Section
G. Poor convicts, how diecharged firompriBOu
after tliree months.
7. after thirty days.
8. at any time in the county of Suffolk,
when, &c.
0. Persons under guardianship, how dis-
charged.
10. Fine and cost may be recovered of guar-
dian.
11. Fees for discharge under this chapter.
878 LUNATICS IN PRISON — DISCHARGE OP POOR CONVICTS. [ChAP. 180.
LUNATICS IN THE STATE PRISON.
Commission- SECTION 1. The physician of tlie state prison as chairman, with tlie
?^ im ST sui)orinteni.lents of the state hinatic hosiiitals, shall constitute a commis-
1844, 120, § J. . ' ,. , . . ,-, . .'.,'. , , -, , .
1850, i3j. sioii lor tlie examination oi convicts in said prison allegeil to be insane.
Each commissioner shall receive for his services in such cajiacity his
travelling expenses and three dollars a day for each day he is so em-
ployed, which shall be charged to the jjrisoii.
to benotined Sect. 2. When a convict in the ]irison apjiears to be insane, the war-
hy warden, &c., (jg,j qj. inspectors shall ffive notice thereof to the chairman of said com-
o£ insanity of . . , , n ,• i • i • ,. , i i £• ,
c-onvicts. mission, who shall lortliwith notity the members tliereoi to meet at tlie
'*»''^»'5'- prison.
Insane convicts Sect. 3. The Commission shall investigate the case, and if, in the
to ilos'pitaT Ttc opinion of a majority of them, the convict has become insane, and his
isH, ijd, §§' 1,'i. removal would be expedient, they shall so report, with their reasons, to
}^il; 2 j;; I ;]; a judge of the superior court, who shall forthwith issue his warrant under
the seal of that court, directed to the warden, authorizing him to remove
the convict to one of, the state lunatic hospitals, there to be ke})t till, in
the opinion of the superintendent and trustees thereof, he maybe recom-
mitted consistently with his health. The superintendent when so satis-
fied shall certify the fact of such restoration ujion the warrant, and give
notice to the warden, who shall thereupon cause the convict to be recon-
veyed to the prison, there to remain pursuant to his original sentence,
comjuiting the time of his confinement in the hospital as part of the term
of his imprisonment.
LUNATICS IN OTHEK PRISONS.
Insane persons Sect. 4. When a convict in a prison other than the state prison, or
removed to^'hM- ^^ the housc of correction, appears to be insane, the physician attending
pitai. the prison or house of correction shall make a report thereof to the jailer
1853," 25'j.' or master, who shall transmit the same in the county of Suffolk to a
i^^'ilu'^^' j'l'^g*' of the superior court, and in any other county to the judge of the
iSjo! 247^ § 3. ]>robate court. The judge shall make inquiry into the facts therein
stated, and if satisfied that such convict is insane, he may, at any time
lie deems necessary, cause such prisoner to be removed to one of the
state lunatic hospitals.
if sane before Sect. 5. If a person SO removed is restored to sanity before the
be™turactr'*° expiration of his sentence, he shall be forthwith returned to the prison
R. s. 143, §2. or house of coiTCCtion from which he was removed, there to remain pnr-
'-' ' suant to his original sentence, computing the time of his confinement
in the hosj^ital as part of the tenn of his imprisonment.
DISCHARGE OF POOR CONVICTS.
Poor convicts, Sect. 6. When a poor convict has been confined in a prison or house
Ivom'iJrison If-'' ^^ Correction for three months for fine and costs only, or for either of
ter tiiree them, the jailer or master shall make a report thereof, in the county of
R.°s!'i4.5, 8 3- Suftblk to the police court of the city of Boston, and in other counties
isB, si, § :s. to any two justices of the peace, one of whom shall be of the quorum, or
issiiliS, § 3! to any police court. The court or justices shall proceed to make inquiry
into the truth thereof, and may require the jailer or keeper to bring the
convict before them at the prison or such other convenient place near
thereto as they may direct. If satisfied that the statement in the report
is true and that the convict since his conviction has not had any estate,
real or personal, with which he could have paid the sum for which he is
committed, and that he is held for no other cause, they shall make a
certificate thereof to the sherift", directing him to discharge the convict.
after thirty Sect. 7. AVhen a poor convict has been confined in a prison or house
'^^^' of correction thirty days for fine, or fine and costs, not exceeding ten
Chap. 180.] bischarge of poor convicts. 879
dollars, or forty days for fine, or fine and cost, not exceeding twenty dol- 1M2, 59. _
lars, he shall be discharged if the justice or court has certified on the See Ch. i<4, § 9.
mittimus upon which he was committed that he is unable to pay the
same. When such convict has been confined thirty days and the justice
or court has not so certified, the jailer or master shall make report
thereof to a justice of the peace and of the quorum, or to a police court,
and such justice or court shall proceed therein and may discharge the
convict in the manner prescribed in the preceding section.
Sect. 8. The justices of the police court of the city of Boston when Poor convicts
assembled, may also at any time discharge from prison or the house of any timo'hi the
correction in the county of Suffolk, any convict held only for the uon- county of Suf-
p.ayment of fine and costs, if it .appears that he is poor and unable to pay e. s'.8r™i6.'''
the same : provided, that when such person is held under the sentence
of any other court, the consent of one of the justices thereof shall be
first given in writing.
Sect. 9. A person under guardianship may have the benefit of the Persons under
provisions of the three preceding sections, although it appears that he rJIw?™*'"'''
has property held under guardianship, if it also aj)pears that such prop- charged.
erty is beyond his actu.al control. '
Sect. 10. When a person is discharged under the preceding section^ Fine and cost
the commonwealth may, in an action of tort brought within one year after J^jjg ^^ ^'uSr-
tlie diseharse, recover against his sjuardian, if he has assets, the amount dian.
of fine and costs remammg unpaid. is^V 3,^,; ' "
Sect. 11. The fees of the justices for discharging a convict under Fees for dis-
this chajiter, shall be one dollar to each justice, and for travel five cents k!°s?H5, §4.
for each mile going and returning, which shall be taxed, allowed, and
paid, in the same manner as other costs arising before justices of the
peace in criminal cases.
PART Y.
OP THE GENERAL STATUTES AND THE
REPEAL OP EXISTING LAWS.
Ch.\pter 181. — Of the General Statutes and their Effect.
Chapter 182. — Of the Express Repeal of existing Laws.
CHAPTER 181,
OF THE GENERAL STATUTES AND THEIR EFFECT.
Section
1. General Statutes, how cited.
2. when to take oifect.
3. repeal by, not to revive former laws, &c.
4. not to affect acts done, &c.
5. nor penalties and forfeitures, &c., except,
&c.
Section
C. Repeal by General Statutes not to affect
suits commenced, &c.
7. Periods of limitation to continue to run.
8. Tenure of offices preserved.
9. General Statutes to be construed as con-
tinuation of former laws.
General Stat-
utes, how cited.
E. S. 146, § a.
when to take
eifect.
R. S. 1«, § 1.
repeal by, not
to revive for-
mer laws, &c.
R. S. 1-16,§§3,9.
not to affect
acts done, &c.
R. S. 146, § 5.
ISPick. 41U,M2.
20 Pick. <J9.
21 Pick. 11.1,210.
2.3 Pick. 2.S0.
4 Gr.-iy, 490.
nor penalties
or forfeitures,
&c., except, &c.
E. S. 140, § 6.
nor suits com-
menced, &c.
E. S. 140, § 7.
Section 1. This act shall not in any citation or enumeration of the
statutes be reckoned as one of the acts of the present year, but may be
designated as the General Statutes, adding when necessary the number
of the chapter and section.
Sect. 2. The General Statutes aforesaid shall take eflPect and go into
operation from and after the thuty-first day of May, in the year eighteen
hundred and sixty.
Sect. 3. The repeal of the acts and resolves, and parts of acts and
resolves, revised and reenacted herein or repugnant to the provisions
hereof, sliall not re\ive any law heretofore repealed or superseded, nor
any office heretofore abolished.
Sect. 4. It shall not affect any act done, or any right accruing,
accrued, or established, or any proceedings, doings, or acts, ratified or
confiiTned, or any suit or proceeding had or commenced in a civil case,
before the repeal takes effect, but the proceedings therein shall when
necessary conform to the provisions of the General Statutes.
Sect. 5. It shall not affect any penalty or forfeiture incurred before
it takes effect, under any of the laws repealed, except that where a pun-
ishment, penalty, or forfeiture, is mitigated by the provisions of the
General Statutes, such provisions may be extended and applied to any
judgment pronounced after said repeal.
Sect. 6. It shall not affect any suit or prosecution pending at the
time of the repe.tl for .an offence committed, or for the recovery of a
penalty or forfeiture incun-ed, under any of the acts repealed, except
(880)
Chap. 182.] express repeal — laws of ISU, 1S19, 1822, 1S35, 1836. 881
that the proceetlings therein shall when necessary conform to the pro-
visions of the General Statutes.
Sect. 7. When a limitation or period of time prescribed in any of Periods of Umi-
the acts repealed, for acquiring a right, or bari-ing a remedy, or any {fnII'e"to''rmu
other puqjose, has begun to run, and the same or similar limitation is ^>^' ''> § ^•
prescribed in the General Statutes, the time of limitation shall continue
to run, and sliall have like effect as if the whole period had begun and
eniled under the operation of the General Statutes.
Sect. 8. All persons who at the time when said repeal takes effect Tenure of offi-
hold any oiRce under any of the acts repealed, shall continue to hold Rfs.'ilMs!
the same according to the tenure thereof, except those offices which
have been abolished, and those as to which a different provision is made
by the General Statutes.
Sect. 9. The provisions of the General Statutes so far as they are General stat-
the same as those of existing laws, shall be construed as a continuation "truelra's'con^
of such laws, and not as new enactments, and references in laws not tinuation of
repealed, to provisions of laws incorporated into the General Statutes """"^ '"'^■
and repealed, shall be construed as applying to the same provisions so
incorporated.
CHAPTER 182.
OF THE EXPRESS REPEAL OF EXISTING LAWS.
The following entitled acts and resolves passed in the several years
liereinal'ter enumerated shall be expressly repealed from and after the
day specified in section two of chapter one hundred and eighty-one,
subject to all provisions contained in said chapter.
One Thousand Eight Htindred and Eleven.
Chapter 04. Resolve for paying the expense of music when the commander-in-chief shall order
out an escort.
On© Thousand Eight Hundred and Nineteen,
Chapter 20S. Ilesolve directing officers of govcrumcnt to render aumml accounts.
One Thousand Eight Hundred and Twenty-two.
Chapter 28. Resolve authorizing the gOTemor to sell or exchange certain military stores.
One Thousand Eight Hundred and Thirty-five.
Revised Statutes. An act for revising and eonsolidatiug the general statutes of the commonwealth.
One Thousand Eight Hundred and Thirty-six.
Chapter 4. An act to amend the Revised Statutes and to supply certain omissions therein.
Chapter 24. An act to provide for the engrossing of resolves.
Chapter 41. An act authorizing registers of probate to adjourn courts of probate in certain cases.
Chapter 137. An act concerning the returns of county commissioners.
Chapter 223. An act to provide for the confinement of idiots and insane persons.
Chapter 240. An act to prevent fraud in the pressing of Iiay.
Chapter 241. An act requiring returns from registers of deeds.
Chapter 245. An act to provide for the better instruction of youth employed in manufacturing
establishments.
Chapter 247. An act relating to the pay of the watchman of the state house.
Chapter 24S. An act to establish jail limits in the county of Worcester.
Chapter 258. An act in addition to the one hundred and forty-fourth ch.^pter of the Revised Statutes
" of the state prison and the government and discipline thereof."
Chapter 203. An act relating to the increased capital of banks.
74« 111
882
EXPRESS REPEAL — LAWS OP 1836, 1S37, 1838.
[Chap. 182.
Chapter 273. An act to abolish special pleading in civil actions.
Chapter 275. An act relating to certain courts in the county of Middlesex.
Chapter 277. An act concerning jailers' fees.
Chapter 278. An act concerning county commissioners.
Chapter 279. An act relating to contracts for the sale of stocks.
13.
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter 111.
Chapter HI.
Chapter 140.
Chapter 151.
Chapter 157
Chapter 15S.
Cliaptcr 104.
Chapter 100.
Chapter 107.
Chapter lOS.
Chapter 171.
Chapter 170.
Chapter 177.
Chapter 178.
Chapter 170.
Chapter 180.
Chapter 181.
Chapter 185.
Chapter 180.
Chapter 104.
Chapter 108.
Chapter 200.
Chapter 205.
Chapter 207,
Chapter 210.
Chapter 217.
Chapter 221.
Chapter 224.
Chapter 226.
Chapter 227.
Chapter 228.
Chapter 233.
Chapter 230.
Chapter 230.
Chapter 240.
Chapter 241.
Chapter 242.
Chapter 244.
Chapter 2.
Chapter 21.
Chapter 20.
Chapter
Chapter
Chapter 31.
Chapter 42.
Chapter 43.
Chapter 40.
Chapter 54.
Chapter 55.
Chapter
28.
30.
03.
One Thousand Eight Hundred and Thirty-seven.
An act relating to tlie salary of the scrgeant-at-arms.
An act concerning pilotage in New Bedford and Fairhaven.
An act relating to town meetings.
An act relating to the effecta of deeeafied paupers.
An act relating to unclaimed dividends and balances.
An act relating to the form of bank returns.
An act to increase the number ofjustices of the supreme judicial court.
An act concerning the assessment of taxes.
An act in addition to an act relating to certain courts in the county of Middlesex.
An act to increase the salaries of the judge and register of jirobate for the county of Nantucket.
An act to establish probate courts in the town of Provincetown.
An act in relation to the inspection of nails.
An act to establish the terms of the court of probate in the county of Worcester.
An act relating to the meetings of the county commissioners in the county of Berkshire.
An act concerning coimty commissioners.
An act relating to police courts.
An act concerning the inspection of salt.
An act concerning private ways.
An act to regulate tlie wcigiit offish.
An act relating to the salary of the secretary's second permanent clerk.
An act relating to the salary of the treasurer's second permanent clerk.
An act relating to guardians.
An act relating to the powers of assessors.
An act to prevent bonfires and false alarms of fire.
An act in relation to the poor of unincorporated places.
An act concerning gaming.
An act empowering proprietors of real estate held in common to dispose of the same.
An act in relation to conditional pardons.
An act relating to notices of applications for the appraisal and sale of personal property attached
on mesne process.
An act to establish a registry of deeds for the southern towns in the county of Bristol.
An act providing for a return by overseers of the poor.
An act concerning persons imprisoned for debt, and relating to bail.
An act relating to the meetings of the Norfolk county commissioners.
An act concerning the st^ite prison, and the government and discipluie thereof.
An act relating to the appointment of provcrs of fire-arras.
An act concerning the service of writs.
An act concerning roguen and vagabonds.
An act to restore the trial by jury on questions of personal freedom. ^
An act to restrain banks from issuing their notes otherwise than for immediate circulation.
An act concerning railroad corporations.
An act concerning the returns of common schools.
An act concerning lunatics.
An act concerning auctioneers.
An act concerning depositions.
An act to reduce the rate of damages on inland bills of exchange.
An act concerning the militia.
An act relating to common schools.
An act concerning licensed houses and the sale of intoxicating liquors.
An act concerning the public health.
One Thousand Eight Hundred and Thirty-eight.
An act relating to wills of personal estate.
An act concerning juries.
An act relating to the probate court in the county of Nantucket.
An act relating to the partition of real estate.
An act relating to repairs of highways.
An act relating to commitments to the state lunatic hospital.
An act to authorize justices of the peace, and others, to compel the attendance of witnesses.
An act to provide for the appointment of temporary town treasurers and collectors of taxes.
An act concerning the election of parish officers.
An act relating to the probate courts in the county of Suffolk.
An act to defray the expenses of the board of education.
An act to increase the salaries of the judge and register of probate for the county of Dukes County.
Chap. 182.]
EXPRESS REPEAL — LAWS OF 1838, 1839.
883
Chapter 71. An act to empower the tovra of Nantucket to raise money for the payment of county expenses and
for other purposes.
Chapter 73. An act in addition to an act to provide for the confinement of idiots and insane persons.
Chapter 80. An act to provide for the appointment of additional watchmen for the protection of the state house.
Chapter 92. An act rclatin;,' to the composition of debts by executors and administrators.
Chapter 98. An act concerning the o^\-nership of shares iu corporations.
Chapter 99. An act authorizing railroad corporations to make certain contracts.
Chapter 300. An act concerning' the reports of the decisions in the supreme judicial court.
Chapter 1(H. An act to exempt towns and other corporations from liability for damages in certain cases.
Chapter 105. An act concerniug schools.
Chapter 107. An act in addition to an act to provide for the better instruction of youth employed in manufacturing
establishments.
Chapter 108. An act authorizing banks to surrender tlieir charters.
Chapter 110. An act to protect the shell fishery in Chelsea.
Chapter 113. An act for the protection of the shell fishery iu Ipswich.
Chapter 121. An act concerning writs and absent defendants.
Chapter 143. An act for the protection of camp meetings against disturbance.
Chapter 14-1. An act relating to the compensation of executors and administrators.
Chapter 145. An act for an allowance to widows of deceased persons for necessaries.
Chapter 147. An act concerning police courts and the justices' court in the county of Suffolk.
Chapter 152. An act concerning the state prison, and the government and discipline thereof.
Chapter 154. An act to aid in support of common schools among certain tribes of Indians in this commonwealth.
Chapter 159. An act to prescribe the duties and fix tlie compensation of the secretary of the board of education.
Chapter 1C2. An act concerning masters in chancery.
Chapter 1G3. An act for the relief of insolvent debtors and for the more equal distribution of their effects.
Chapter 105. An act to enlarge the jurisdiction of tlie court of common pleas.
Chapter 177. An act concerning manufacturing corporations.
Chapter 181. An act in addition to an act to establish the city of Lowell.
Chapter 184. An act concerning suits on probate bonds.
Chapter 186. An act concerning the attachment of real estate.
Chapter 180. An act concerning the union of school districts.
Chapter 100. An act concerning the sale of the real estate of minors.
Chapter 196. An act concerniug banks and baukiug.
16.
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Cliaptcr 107.
Chapter 117.
Chapter 121.
Chapter 127.
Chapter 132,
Chapter 135.
Chapter 130.
Chapter 137.
Chapter 138.
Chapter 139.
Chapter 140.
Chapter 142.
Chapter 1+4.
Chapter 140.
Chapter 148.
Chapter 149.
Chapter 150.
Chapter 151.
Chapter 150.
Chapter 157.
Chapter 158.
One Thousand Eight Hundred and Thirty-nine.
An act concerning the establishment of limits for the jail yard at Lowell in the county of Middlesex.
An act providing for the examination of banks whose charters have been annulled.
An act concerning the office of attorney-general.
An act regulating appeals of persons adjudged to be common and notorious thieves.
An act for the punishment of shop-breaking in certain cases.
An act concerning elections.
An act concerning dealers in second-hand articles.
An act concerning riots.
An act concerning schools.
An act relating to proceedings of county commissioners.
An act for the protection of the shell fishery in Brewster,
An act concerning the sea-coast fisheries.
An act concerning the attachment of real estate.
An act relating to the powers of county commissioners.
An act establishing fees of notaries public.
An act in relation to contribution among devisees.
An act concerning testimony in certain cases.
An act establishing additional terms of the court of common pleas in the county of Middlesex.
An act concerning notes payable on demand.
An act for the punishment of highway robbery and burglary.
An act further regulating the inspection of pickled fish.
An act relating to criminal prosecutions.
An act concerning the salary of the attorney of the commonwealth for the county of Suffolk.
An act concerning district schools.
An act to regulate fire departments.
An act concerning the assessment of taxes.
An act concerning the taking of depositions to perpetuate testimony.
An act providing for the appointment of public administrators.
An act concerning taxes for the repairs of highways.
An act concerning houses of correction.
An act to prevent the burning of woodlands in certain tOAvns therein named.
An act in addition to an act concerning lunatics.
An act relating to the courts of common pleas in the county of Essex.
An act concerning proceedings at law.
An act concerning the maintaining of prisoners in jails and houses of correctioxi.
An act to provide for obtaining the statistics of crime.
An act concerning suits against foreign corporations.
884
EXPRESS REPEAL — LAWS OF 1839, 1840, 1841, 1842. [ChAP. 182.
Chapter 161. An act concemiiif^ appeals in criminal capes.
Chapter Ifri. An act relative to tlie partition of real estate.
Chapter 105. An act in addition to an act couceruiug' elections.
One Thousand Eight Hundred and Forty.
Chapter
9.
An act
Chapter
12.
An act
Chapter
15.
An act
Chapter
ai.
An act
Chapter
34.
An act
Chapter
40.
An act
Chapter
59.
An act
Chapter
61.
An act
Chapter
02.
An act
Chapter
06.
An act
Chapter
00.
An act
Chapter
73.
An act
Chapter
-4.
An act
Chapter
75.
An act
Chapter
77.
An act
Chapter
80.
An act
Chapter
82.
An act
Chapter
S3.
An act
Chapter
84.
An act
Chapter
85.
An act
Chapter
87.
An act
Chapter
92.
An act
Chapter
94.
An act
Chapter
97.
An act
for the protection of the shell fishery in the towns of Essex and Hull.
relatiufjf to turnpike corporatious.
concerning jails and houses of correction.
concerning the jurisdiction of justices of the peace.
to protect Indian lands from trespassers and intruders.
in addition to an act providing for the appointment of public adminiBtrators.
concerning the apportionment of the senate.
regulating tlie use of proxies at the meetings of stockholders of banks.
concerning the proprietors of meeting-houses.
relating to representative districts.
concerning toll-bridges.
relating to the inspection of mess beef.
concerning grand jurors in the county of Dukes County.
concerning the apprehension of criminals.
in addition to an act relating to the meetings of the county commissioners in the county of
ISerkshire.
concerning passenger carriers.
relating to the sale of Indian meal and cracked com.
concerning certain railroad corporations.
relating to the evidence of marriage.
in addition to an act concerning railroad corporations.
concerning the supreme judicial court and the court of common pleas.
in addition to the several acts concerning the militia.
in addition to an act for the appointment of bank commissioners.
concerning sales by guardians and others.
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter 105.
Chapter 100.
Chapter 107.
Chapter 111.
Chapter 113.
Chapter 114.
Chapter 115.
Chapter IIG.
Chapter 119.
Chapter 124.
Chapter 125.
Chapter 120.
Chapter 127.
Chapter 129.
Chapter 130.
One Thousand Eight Hundred and Forty-one.
An act relating to the choice of county commissioners in the county of Barnstable.
An act concerning the income of the Slassachusetts school fund.
An act in relation to the erection and regulation of mills.
An act in addition to an act relating to the evidence of marriage.
An act concerning timber carried upon adjoining lauds by floods.
An act in relation to recompense to prosecutors and officers.
An act concerning savings banks.
An act relating to pilotage.
An act in addition to an act concerning the supremo judicial court and the court of common picas.
An act concerning the returns of railroad corporations.
An act concerning elections.
An act relative to the cost and expenses of criminal prosecutions.
An act concerning lunatics.
An act to punish collusion in cases of divorce.
An act concerning complaints for damages caused by mill-damB.
An act concerning the expense of making highways.
An act concerning the militia.
An act concerning the election of county commissioners.
An act relating to the court of common pleas.
An act in addition to an act authorizing banks to surrender their charters.
An act concerning cemeteries.
An act in relation to main drains or common sewers.
An act concerning returns by overseers of the poor.
An act providing for the measuring of upper leather.
An act in addition to an act for the relief of insolvent debtors.
An act relating to railroads.
An act requiring county commissioners to furnisli blank returns of elections.
An act respecting the taxation of houses of public worship.
An act in relation to bills of discovery.
An act relating to the state house.
One Thousand Eight Himdred and Forty-two.
Chapter 1. An act to alter the times of holding the May and September meetings of the county commissionera
of Middlesex.
Chapter 10. An act for the protection of the shell fishery in the towns of Kingston and Falmouth.
Chapter 14. An act concerning petitions for partiti(tn.
Chapter 15. An act relating to allowance to be made to widows and minor children of deceased persons.
Chapter 22. An act relative to railroads.
Chap. 182.]
EXPRESS REPEAL — LAWS OF 1842, 1843, 1844.
885
Chapter M.
Chapter 37.
Chapter 42.
Chapter 49.
Chapter 50.
Chapter 54.
Chapter 59.
Chapter 60.
Chapter (ifi.
Chapter C>7.
Chapter 7'i.
Chapter 74.
Chapter S3.
Chapter 86.
Chapter 83.
Chapter 89.
Chapter 91.
Chapter 93.
Chapter 94.
Chapter 9(5.
Chapter 98.
Chapter 99.
Chapter 100,
Chapter 101.
An act in relation to the collection of taxes.
An act authorizing the appointment of special constables.
Au act concerning the duties of the secretary of the board of education.
An act relating to bank returns.
An act concerning the election of county commissioner.
An act concerning writs of error iu criminal cases.
An act relating to poor convicts.
Au act concerning the emiiloyment of children in manufacturing establishments.
An act in relation to toll-bridges.
An act concerning tlie taxation of costs In actions.
An act concerning dower.
An act concerning devises and wills by married women.
An act concerning guardianship of minora.
An act relating to the duties of county commissioners.
An act relating to the probate court in the county of Brietol,
An act relating to surviving of actions.
An act relating to trustee process.
An act in addition to the several acts concerning the militia.
An act in relation to law library associations.
An act concerning the state lunatic hospital.
An act concerning an allowance of interest by banks to the city of Boston.
An act to divide the commonwealth into districts for the choice of representatives in the congress
of the United States.
An act in addition to an act to provide for the confinement of idiots and insane persons.
An act relating to the bank commissioners.
Chapter 1.
Chapter 4.
Chapter 7.
Chapter 9.
Chapter 10.
Chapter 13.
Chapter 17.
Chapter 19.
Chapter 21.
Chapter 29.
Chapter .^S.
Chapter 40.
Chapter 41.
Chapter 55.
Chapter 56,
Chapter 61.
Chapter 65.
Chapter 00.
Chapter 08.
Chapter 69.
Chapter 71.
Chapter 72.
Chapter 75,
Chapter 77.
Chapter 80.
Chapter 82.
Chapter 84.
Chapter 85.
Chapter 87.
Chapter 02.
Chapter 93.
Cliapter 97.
Chapter 98.
Chapter 99.
One Thousand Eight Hundred and Forty-three.
An act to punish larceny in a dwelling-house in the night time and for other purposes.
An act relating to the probate court in the county of Nantucket.
An act relating to the court of common pleas and municipal court of the city of Boston.
An act establishing the salaries of certain public officers.
An act relating to the preservation of the bonds and mortgages from the several railroads to the
commonwealth.
An act to reduce the expenses of the office of adjutant-general.
An act relating to the office of adjutant-general.
An act relating to trusts created by deed.
An act concerning the sale of railroad stock at auction.
An act concerning probate courts in the county of Hampden.
An act in relation to the subsistence of convicts in the state prison.
An act concerning the probate courts in the county of Hampshire.
An act relating to the court of common pleas.
An act relating to costs in civil actions.
An act concerning sureties in i>robate bonds.
An act in addition to an act entitled an act relating to the court of common pleas and municipal
court of the city of Boston.
An act to establish an aqueduct for the state lunatic hospital, (except section one.)
An act in relation to the support of convicts.
An act concerning proxies.
An act further to protect personal liberty.
An act in relation to fees of justices of the peace.
An act concerning mortgages of personal property.
An act regulating tlie compensation of shcrilTs.
An act relating to divorce.
An act concerning the additional punishment of convicts recommitted to the state prison.
An act authorizing trustees to insure property held in trust in mutual fire insurance companies.
An act in addition to the several acts concerning tlie militia.
An act conccrniug the property of common school districts.
An act relating to the poll tax.
Au act concerning foreign wills.
An act to regulate banks and banking.
An act concerning executors and administrators.
An act for the more equal assessment of taxes.
An act abolishing the office of attorney-general.
One Thousand Eight Hiindred and Forty-four.
Chapter 9. An act relating to masters iu chancery.
Chapter 24. An act restoring the salaries of the justices of the supreme judicial court.
Chapter 32. An act concerning the powers of school committees.
Chapter 36. An act conccniing the sale of the stock of manufacturing companies.
Chapter 44. An act in addition to an act relating to the court of common pleas and the municipal court of the dty
of Boston.
886
EXPRESS REPEAL — LAWS OP 1844, 1845,
[Chap. 182.
Chapter
78.
An act
Chapter
ST.
An .aet
Chapter
88.
An act
Chapter
90.
An act
Chapter
101.
An act
Chapter
103.
An act
Chapter
104.
An act
Chapter
lor.
An act
Chapter
115.
An act
Chapter
KO.
An act
Chapter
127.
An act
Chapter
129.
An aet
Chapter
VIS.
An act
Chapter
143.
An act
Chapter
115.
An .act
Chapter
14(;.
An act
Chapter
147.
An act
Chapter
148.
An act
Chapter
152.
An act
Chapter
153.
An act
Chapter
loli.
An act
Chapter
157.
An act
Chapter
159.
An aet
Chapter
IfiO.
An act
Chapter
102.
An act
Chapter
107.
An act
Chapter
108.
An act
Chapter
171.
An act
Chapter
173.
An act
Chapter
174.
An act
Chapter
178.
An act
relating to elections,
reliiting' to the statistics of crime.
respcetin-' the appropriation of the property of minors to their maintenance and education,
to reduce tlie lax on sales of teas by importers at auction,
in addition to the several acts concerninij the militia,
concerning prosecutions for tlie sale of spirituous and fcrracntcd liquors,
in relation to the registry of deeds,
to prevent frauds in the conveyance of real estate.
concerning the settlement of estates of persons deceased insolvent,
entitled an act for tlie removal of insane convicts from tlie state prison,
to alter the times of holding probate courts in the town of Medway, in the county of
Norfolk.
concerning alimony.
in addition to an art concerning: masters in chancery,
concerning tlic organization of the Iiouse of representatives,
relating to the pull tax.
in addition to an aet providing for a return by the overseers of the poor.
in addition to an aet providing for the more equal assessment of taxes,
in addition to an act entitled " an act concerning mortgages of personal property."
empowering the inhabitants of villages or districts to establish fire departments witliin the
same.
concerning the journals and files of the senate and house of representatives.
for the preservation of grouse or heath hen.
in addition to '* gn act in relation to law library associations."
relating to the registry and returns of births, marriages, and deaths,
making furtlier provision for the observance of the Lord's day.
in further addition to " an act concerning the supreme judicial court and the court of com-
mon pleas."
prescribing the time for making the returns of votes for electors of president and vice-presi-
dent of the United States,
relating to the bomls of pilots.
to alter the times of holding the terms of the court of common pleas for the county of
Hampden.
authorizing the appointment of an additional master in chancery in the county of 'Worcester,
to establisli the salary of the sergeant at-arms.
in further addition to tlie several acts for the relief of insolvent debtors and the more equal
distribution of their effects.
One Thousand Eight Hundred and Forty-five.
Chapter 14. An act establishing the salary of the district-attorney for the southern district of this common-
wealth.
Chapter 22. An act authorizing the appointment of an additional master in chancery in the county of Mid-
dlesex.
Chapter 27. An act to punish unlawful attempts to cause abortion.
Cliapter 2S. An act to punisli larceny in shops and otlier places in the night time.
Chapter Sii. An act establishing the salary of the district-attorney for the northern district.
Chapter CA. An act concerning trust estates.
Chapter 07. An act to increase the duties and establish the salary of the attorney of the commonwealth for the
county of Sufl'olk.
Chapter CkS. An act to amend an act concerning notes payable on demand.
Chaiiter 70. An act requiring constables to give bonds in certain cases.
Chapter 7.1. An act to cliange the time for holiliug certain probate courts in the county of Plymouth.
Chapter 77. An act to amend an act in addition to the several acts concerning the militia.
Chapter 78. An act concerning limited partnerships.
Chapter 105. An act establishing the salaries of the first and second clerks in the office of the treasurer and
receiver-general of the commonwealth.
Chapter 113. An act establishing the salaries of the first and second clerks in the office of the secretary of the
commonwealth.
Chapter 110. An act establishing the salary of the messenger to the governor and council.
Chapter 1 18. An act concerning the punishment of convicts.
Chapter Vio. An act establishing the salaries of the judge and register of probate for the county of Kantucket.
Chapter 155. An act to increase the number of justices of the court of common pleas.
Chapter 15.S. An act authorizing judges of proliate to aiipoint trustees in certain cases.
Chapter ino. An act establishing the salary of the register of probate for Dukes County,
Chapter h'>2. An aet in relation to tlie compensation of sheriffs.
Chapter }i'\C). An act concerning bail in crimiual cases.
Chai)ter 17(1. An act relating to discharged convicts.
Chapter 17H. An act to establish the salary of the judge of probate in the county of Barnstable.
Chapter 187. An act concerning pilots and pilotage.
Chapter 18S. An act in relation to the costs of trustees.
Chapter 190. An act relatinj;; to returns of clerks of manufacturing corporations.
Chapter lUl. An act to regulate the use of railroads.
Chap. 182.]
EXPRESS REPEAL — LAWS OF 184.5, 1846.
887
Chapter 192. An act relating to the survey of the coast of Massachusetts.
Chapter 103. An act concerning principals, factors, and agents.
Chapter l'J7. Au act regulating the use of steam-engiuee and fumaces.
Chapter 205. An act concerning registers of deeds.
Chapter 206. An act to establish tlie Falaries of the assistant watchmen of the state house.
Chapter 208. Au act in addition to the several acts concerning liusband and wife.
Chapter 209. An act concerning the laying out turnpike roads as common highways.
Chapter 211. An act relating to gaming.
Chapter 213. An act relating to religious societies.
Chapter 214. An act concerning public schools.
Chapter 215. An act relating to embezzlement.
Chapter 210, An act to punish abduction.
Chapter 217. An act providing in certain cases for the election of city officers.
Chapter 221. An act concerning the duties of county commissioners.
Chapter 222. An act concerning marriage.
Chapter 227. An act concerning the fees of jurors in criminal trials.
Chapter 237. An act concerning fire districts.
Chapter 242. An act concerning the study of medicine.
Chapter 243. An act in addition to the se\'eral acts concerning the militia.
Chapter 253. An act to estiiblish additional terms of the ct)urt of common pleas for the coimty of Hampden.
Chapter 12. Resolves concerning tliV arsenals in Cambridge and Boston.
Chapter 71. Ilcsoive concerning the distribution of equipraents and camp equipage.
Chapter 126. Resolve relative to the transmission of military documents.
Chapter 11.
Chapter 40,
Chapter 45.
Chapter 49.
Chapter 52.
Chapter 02.
Chapter 78.
Chapter SO.
Chapter 88.
Chapter <H,
Chapter Ofi.
Chapter 90.
Chapter 122.
Chapter 123.
Chapter 142.
Chapter 154.
Chapter lOS.
Chapter 170.
Chapter 17!.
Chapter 103.
Chapter 105.
Chapter 107.
Chapter 108.
Chapter 190.
Chapter 200.
Chapter 203.
Chapter 200.
Chapter 211.
Chapter 210.
Chapter 217.
Chapter 218.
Chapter 219.
Chapter 221.
Chapter 222.
Chapter 223.
Chapter 2.^t.
Chapter 237.
Chapter 2'IS.
Chapter 241.
Chapter 242.
Chapter 243.
Chapter 244.
Chapter 249.
One Thousand Eight Hundred and Forty-six.
An act to provide for the government and m.-inagemcnt of houses of correction in certain cases.
An act to limit writs of scire facifis against trustees.
An act eouoerning manufacturing corporations.
An act respecting the yearly abstracts of the returns of savings banks.
An act concerning wilful and malicious injuries to personal property in certain cases.
An act concerning prosecutions for violations of by-laws.
An act in addition to an act relating to discharged convicts.
An act concerning annual returns of saving banks and institutions for savings.
An act relating to the support of convicts.
An act respecting corporations for mutual improvement and the promotion of education.
An act relating to the erection of furnaces for the making of glass.
An act to establisli teachers' institutes.
An act concerning bonds given on dissolving attachments.
An act providing for the appointment of assayers of ores and metals.
An act providing for a recompense to prosecutors and ofTiciTS in certain cases.
Au act in relation to the liouse of correction and asylum for insane persons in the county of Essex.
An act in addition to " an act for the relief of insolvent debtors and for the more equal distribution
of their effects. "
An act in addition to " an act regulating the inspection of pickled fish."
An act concerning larceny by bank officers and persons employed in banks.
An act to alter the times of holding the terms of the court of common pleas for the county of
Hampshire.
An act concerning the collection of taxes.
An act concerning marriage and divorce.
An act concerning proceedings in criminal cases.
An net concerning usury.
An act for the suppression of horse racing.
An act concerning the dedication of public ways, and for other purposes.
An act for the payment of the wages and deposits of married women.
An act concerning public administrators.
Au act concerning guardians and treasurers of Indian tribes and others.
An act establishing the salary of the first clerk in the ofl^ce of the secretary of the commonwealth.
An act in addition to the several acts concerning the militia.
An act to designate the fund for the payment of the salary of the land agent and of appropriations
for educational purposes.
An act relating to the meetings of the county commissioners in the county of Hampshire.
An act to provide for constructing town ways and private ways in certain cases.
An act relating to the duties of school committees and the distribution of the income of the school
fund.
An act concerning security for costs in proceedings in the supreme court of probate.
An act concerning the inspection of lime.
An act to establish the salaries of the watchman and assistant watchmen of the state house.
An act for the correction of the state map.
An act concerning the sale of trust estates.
An act to regulate the pilotage in Xantucket.
An act concerning hawkers and pedlers.
An act concerning the appointment of guardians of spendthrifts.
888
EXPRESS REPEAL — LAWS OF 1846, 1S47, 1848.
[Chap. 182.
Chapter 251. An act relatiu^ to railroad corporations.
Chapter 2oG. An act to establish the salary of the rcf^stcr of probate for the county of Barnstable.
Chapter 2fi0, An act establishing; the salariea of the justices of the court of common pleas.
Chapter '2Gi. An act establishing the salaries of the district attorneys of the middle and western districts of this
commonwealth.
Chapter 2^6. An act concerning warrants in cases of bastardy.
Chapter 2G8. An act to establish the salary of the register of probate for the county of Suffolk.
Chapter 271, An act relating to railroads.
One Thousand Eight Hundred and Forty-seven.
Chapter 13. An act to define the time of night time in criminal prosecutions.
Chapter 14. An act concerning the sale of potatoes in this commonwealth.
Chapter 32. An act requiring banks and savings institutions, under settlement, to make annual reports.
Chapter 37. An act authorizing the supreme judicial court to restrain the abuses of corporate power by cities
and towns.
Chapter 51. An act to regulate the keeping of gim-cotton and other like substances.
Chapter 59. An act relating to the salaries of the watchmen of the state prison.
Chapter 01. An act to establish the salary of the clerk in the office of the adjutant and quartermaster general of
the commonwealth.
Chapter 09. An act relating to agricultural societies.
Chapter 83. An act to suppress injurious publications.
Chapter 98. An act concerning the powers of constables.
Chapter 102. An act concerning the common lands in the island of Nantucket.
Chapter 1(H. An act concerning wilful disturbance of religious worship.
Cliaptcr 107. An act relating to recording officers of joint stock companies, and to the transfer of shares therein.
Chapter 153. An act relating to interest on certain judgments.
Chapter IGO. An act in addition to *' an act to provide for tlic government and management of houses of correc-
tion in certain cases."
Chapter 105. An act to establish the state reform school.
Chapter l(ii}. An act concerning the powers of cities and to\ms.
Chapter 170. An act coucerning partitions of real estate.
Chapter 181. An act relating to railroad land damages.
Chapter 183. An act relating to the abstracts of school returns and the duties of school committees.
Chapter 195.' An act concerning mortgages held by the commonwealth.
Chapter 199. An act relating to returns of county commissioners and otiier officers.
Chapter 209. An act establishing the salary of the first clerk in the office of the treasurer and receiver general of
the commonwealth.
Chapter 224. An act to prevent obstructions in the streets of cities, and to regulate hackney coaches and other
vehicles.
Chapter 220. An act concerning taxes on the real estate of deceased persons.
Chapter 22"^. An act to establish the salaries of certain registers of probate.
Chapter 237. An act establishing the salary of the messenger to the governor and council.
Chapter 242. An act concerning weights, measures, and balances.
Chapter 240. An act providing for the inspection of hay.
Chapter 254. An act relating to repairs of highways.
riiapter 250. An act relating to the employment of convicts.
Chapter 259. An act in addition to an act relating to proceedings of county commissioners.
Chapter 202. An act concerning the powers of cities.
Chapter 203. An act relating to public charities.
Chapter 207. An act relating to leasehold estates.
Chapter 274. An act to secure the payment of fees into the treasury of the commonwealth in certain cases.
Chapter 279. An act in addition to " an act to regulate pilotage."
Chapter 280. An act concerning the trustees of methodist episcopal churches.
Ch;ipter 282. An act in addition to an act requiring returns from registers of deeds.
Chapter 77. Kesolvc relating to the furnishing of camp equipage to the field officers of the militia.
Chapter SS. Resolves for the promulgation of the general laws and resolves.
Chapter
4.
An act
Chapter
9.
An act
Chapter
10.
An act
Chapter
10.
An act
Chapter
29.
An act
Chapter
35.
An act
Chapter
s-j.
An act
ri.alitiT
;«.
An act
Chapter
131.
An act
Chapter
123.
An act
Chapter
140.
An act
Chapter
112.
An act
One Thousand Eight Hundred and Forty-eight.
concerning the registry of deeds in the town of Monterey.
to increase the number of the justices of the supreme judicial court.
in addition to " an act to establish teachers' institutes."
to establish an additional district for the administration of criminal law.
to provide for the instruction of prisoners ia jails and houses of correction.
regulating the election of electors of president and vice-president of the United States.
in addition to " an act relating to disclnirged convicts."
relating to town and private ways.
relating to annual meetings of banks.
relating- to fees of witnesses in certain cases.
in relation to the plans and prnliles of niilroade.
concerning forcible entry and detainer.
Chap. 182.]
EXPRESS REPEAL — LAWS OF 1848, 1849.
889
Chapter IM.
Chapter 152.
Chapter 164.
Chapter 166.
Chapter 173,
Chapter 192.
Chapter 193.
Chapter 214.
Chapter 2M.
Chapter 23o.
Chapter 230.
Chapter 237.
Chapter 240.
Chapter 247.
Chapter 251.
Chapter 252.
Chapter 254.
Chapter 255.
Chapter 200.
Chapter 207.
Chapter 270.
Chapter 271.
Chapter 272.
Chapter 274.
Chapter 276.
Chapter 277.
Chapter 27S.
Chapter 279.
Chapter 289.
Chapter 291.
Chapter 299.
Chapter 301.
Chapter 304.
Chapter 305.
Chapter zm.
Chapter 309.
Chapter 310.
Chapter 313.
Chapter 315.
Chapter 317.
Chapter 318.
Chapter 320.
Chapter 324.
Chapter 327.
Chapter 331.
Chapter 332.
An act relating to the recording- of cxecutionB.
An act concerning the planting of oysters.
An act relating to taxation in parishes.
An act further to regulate the sale of real estate for non-payinent of taxes.
An act in addition to an act relating to abstracts of school returns, and the duties of school com-
mittees.
An act relating to town and county roads.
An act concerning the continuance of civil actions before justices of the peace.
An act for the better establishment of t!ie police court of the city of New Bedford.
An act relating to probate courts in the county of Essex.
An act concerning remedies for the colleetion of taxes.
An act authorizing the supreme judicial court to adjourn the same in certain cases.
An act to authorize towns to take land for school-houses.
An act imposing a penalty on town or city ofl&cers for neglect of certain duties.
An act concerning indigent childron.
An act limiting the liabilities of banks that have surrendered their charters.
An act relating to actions against assignees of insolvent estates.
An act concerning the writ of haheas corpus.
An act changing the place for holding certain terms of probate courts in the county of 'Worcester.
An act to establish a jiolice court in the to^vn of Lawrence.
An act in relation to costs in cases of bankruptcy and insolvency.
An act to regulate intelligence offices.
An act concerning the fees of jurors in certam caBefi.
An act in relation to town pounds.
An act relating to district school-houses.
An act in addition to an act to provide for the government and management of houses of correction
in certain cases.
An act authorizing the appointment of an additional master in chancery in the county of Essex.
An act concerning the erection of balustrades upon buildings in cities.
An act to authorize adjacent toivns to unite for school purposes.
An act for the appointment of an assistant clerk of the courts in the county of Middlesex.
An act relating to the erection and location of almshouses and houses of correction.
An act in addition to an act for the more equal assessment of taxes.
An act granting aid to county associations of teachers and others.
An act in addition to the several acts for the relief of insolvent debtors, and the more equal distri-
bution of their effects.
An act concerning the state reform school.
An act relating to ballast in the city of Boston,
An act to authorize the granting of administration upon the estates of persons deceased intestate
in certain cases.
An act in relation to the payment of annuities.
An act concerning alien passengers.
An act for the more effectual suppression of common gaming houses.
An act authorizing sheriffs and their deputies to administer oaths in certain cases.
An act in addition to " an act for the better establishment of the police court of the city of New
Bedford."
An act for the removal of insane persons confined in jail for debt.
An act in relation to prisoners.
An act relating to railroad plans and profiles.
An act concerning the compensation of the justices and clerk of the police court in Lowell.
An act in addition to " an act concerning weights, measures, and balances."
Chapter 5.
Chapter 9.
Chapter 24.
Chapter 29.
Chapter 30.
Chapter 31.
One Thousand Eight Hundred and Forty-nine.
An act to restrain printing or circulating shop bilN of the similitude of bank bUls.
An act establishing the salaries of the justices of the court of common pleas.
An act to protect sidewalks in towns.
An act for the protection of pigeon beds.
An act establishing an annual term of the court of probate at Pawtncket, In the county of Bristol.
An act concerning appeals to the municipal court in the county of Suffolk.
An act concerning stockliolders in banks.
An act estsblishing additional terms of the court of common pleas in the county of Essex.
An act respecting sales by executors and administrators.
An act to regulate the weight of clam bait.
An act to prevent prize fighting.
An act to alter the times of holding certain terms of the court of common pleas for the coimty of
Hampden.
An act to establish the office of auditor of accounts.
An act to prevent disturbances of schools and public meetings.
An act relating to teachers' institutes.
An act concerning the distribution, custody, and preservation of school returns, and other docu-
ments relating to schools.
Chapter tW. An act in relation to paupers.
75 112
Chapter 32.
Chapter 30.
Chapter 47.
Chapter 48,
Chapter 49.
Chapter 53.
Chapter oO,
Chapter 59.
Chapter 02.
Chapter (>o.
890
EXPRESS REPEAL — LAWS OP 1849, 1850.
[Chap. 182.
Chapter
08.
Chapter
74.
Chapter
81.
Chapter
86.
Chapter
87.
Chapter
93.
Chapter
il8.
Chapter
110.
Chapter
117.
Chapter
123.
Chapter
124.
Chapter
131.
Chapter
133.
Chapter 137.
Chapter
138.
Chapter
HI.
Chapter
142.
Chapter
HO.
Chapter
148.
Chapter
149.
Chapter
151.
Chapter
153.
Chapter
165.
Chapter
158.
Chapter
159.
Chapter
101.
Chapter
173.
Chapter
173.
Chapter
ISO.
Chapter
191.
Chapter
200.
Chapter
202.
Chapter
205.
Chapter
200.
Chapter
207.
Chapter
208.
Chapter
209.
Chapter
210.
Chapter
211.
Chapter
215.
Chapter
210.
Chapter
218.
Chapter
220.
Chapter
222.
Chapter
231.
Chapter
5.
Chapter
8, §2
Chapter
21.
Chapter
27.
Chapter
31.
Chapter
.34.
Chapter
37.
Chapter
41.
Chapter
44.
Chapter
45.
Chapter
40.
Chapter
48.
Chapter
57.
Chapter
08.
Chapter
83.
Chapter
88.
Chapter
90.
Chapter
91.
Chapter
97.
Chapter
98.
■Chapter 100.
An net concerning' insane jiorson?* charj^ed with criminal offences.
An act in addition to an act concerning jjiils Jind houses of correction.
An act relating to school libraries and school apparatus.
An act to establish a police court in the town of Lynn.
An act conc<?rnlng intestate estates.
An act concerning electric telegraph companiea and electric telegraphing.
An act concerning the rights of mill owners.
An act in addition to ** an act for the more equal assessment of taxes."
An act to amend " an act relating to the duties of school committees, and the distribution of the
income of the school fund."
An act in further addition to " an act providing for the appointment of public administrators.''
An act in relation to interest on judgments.
An act relating to railroad plans and profiles.
An act to extend the jurisdiction of police courts In certain cases.
An act extending the jurisdiction of justices of the peace in Suffolk county.
An act concerning the tax on sales by auction.
An act to allow women divorced from the bonds of matrimony to resume their maiden names.
An act to increase the salary of the district-attorney of the western district.
An act in relation to the concealment of wills, or testamentary papers, of deceased persoUB.
An act relating to discharged convicts.
An act concerning the taxation of income.
An act relating to the settlement of certain pauper accounts.
An act concerning railroad corporations.
An act relating to the state library.
An act for the better preservation of useful birds.
An act authorizing railroad corporations to alter the direction of hijjhways.
An act concerning railroads.
An act concerning accidents upon railroads.
An act to abolish corporal punishment in the state prison.
An act to establish the office of attorney-general.
An act to amend an act relating to railroad corporations.
An act in relation to the laying out of highways and other ways.
An act relating to the registration of births, marriages, and deaths.
An act concerning powers of attorney authorizing the conveyance of real estato.
An act in relation to school districts.
An act relative to state lunatic paupers.
An act in relation to the pay of witnesses summoned by the general court.
An act concerning school registers.
An act in addition to an act to establish the city of Worcester'
An act in relation to public health.
An act in relation to the office of the secretary of the board of education.
An act relating to agents and factors.
An act concerning the militia.
An act concerning the employment of children in manufacturing establishments.
An act in relation to railroad crossings.
An act concerning public amusements.
One Thousand Eight Hundred and Fifty.
An act concerning damages for defects in highways and other ways.
Section two only of an act for the protection of the fisheries in the vicinity of Nantucket.
An act in relation to mortgages.
An act concerning bonds to dissolve attachments.
An act to amend " an act regulating the compensation of sheriffs."
An act in addition to the several acts in relation to the competency of witnesses in certain cases.
An act in addition to the acts relating to the state prison and the government and discipline thereof.
An act in addition to *' an act concerning the distribution, custody, and preservation, of school re-
turns and other documents and papers relating to schools."
An act to provide further penalties for wilfully and maliciously obstructing the passing of car-
riages upon railroads.
An act in addition to an act concerning the sale of the real estate of minors.
An act concerning the duties of the attorney -general.
An act concerning savings banks when summoned as trustees.
An act to extend the power of collectors of taxes.
An act concerning the fees of grand jurors.
An act in addition to " an act relating to the state library."
An act concerning the board of education.
An act to prevent persons from using fraudulent marks and stamps.
An act relating to limited partnerships.
An act in addition to the several acts for the relief of insolvent debtors, and the more equal distri-
bution of their effects.
An act concerning the redemption of real estate sold for taxes.
An act relating to divorce.
Chap. 182.]
EXPRESS REPEAL — LAWS OF 1850, 1851.
891
Chapter 105. An act relating- to alien passengers.
Chapter 107. An act concerning- costB iu criminal proeecutions.
Chapter lOS. An act in addition to an act in relation to the public health.
Chapter 111. An act in relation to dower in testjite estates.
Chapter 112. An act additional to an act to establish the state reform school.
Chapter 114. An act to protect ice Intended for merchandise.
Cliapter 115. An act In relation to the qualification of school teachers.
Chapter 121. An act relating to banns of marriage.
Chapter i:Jl. An act relating to the branding of foreign pickled fish.
Chapter 133. Au act in addition to an act concerning coroners' inquests.
Chapter 141. An act concerning accounts of the guardians of Indians in this commonwealth.
Cliat)ter 143. An act iu relation to the compensation of committees and commissioners.
Chapter 104. Au act iu addition to acts for regulating the pilotage of vessels through the Vineyard Sound to
Nantucket.
Chapter 1G5. An act to regulate the storage and sale of camphene and other like fluids.
Chapter 177. An act concerning the inspection of sole leather.
Chapter 179. An act concerning the duties and powers of school committees.
Chapter 182. An act in relation to the state library.
Chapter 185. An act concerning persons under guardianship imprisoned for non-payment of fines.
Cliapter 18G. Au act relating to tlio powers and duties of the watch in the cities and towns of this common-
wealth.
Chapter 104. An act in relation to the carrying of slung shot.
Chapter 190. An act in relation to bonds to be given to judges of probate.
Chapter 199. An act concerning bail iu civil actions.
Chapter 200. An act in addition to an act concerning devisee and wills by married women.
Chapter 204. An act relating to probate courts in t!ie county of Plymouth.
Chapter 207. Au act in addition to the several acts for the relief of insolvent debtors, and the more equal distri-
bution of their etfects.
Chapter 209. An act concerning the return of executions issuing from the supreme judicial court and court of
common pleas.
Chapter 213. An act prescribing the mode of calling and warning school district meetings.
Chapter 230. An act to establish the compensation of the messengers, doorkeepers, and pages.
Chapter 232. Au act for regulating the sale of intoxicating drinks.
Chapter 235. An act allowing fees to judges of probate.
Chapter 230. An act to establish the office of assistant-clerk in the courts in the county of Worcester.
Chapter 239. An act concerning the partition of lands owned by several persons.
Chapter 241. An act to facilitate the settlement of trust estates.
Chapter 244. An act concerning the probate court in the county of Frankliu.
Chapter 249. Au act concerning partition of real estate.
Chapter 258. An act to establish additional terms of the court of common pleas for the county of Berkshire.
Chapter 2(>1. An act regulating the measurement of cranberries and other berries. •
Chapter 2'Vl. An act in addition to the acts for the punishment of drunkards.
Chapter 275. An act in addition to au act to prevent obstructions in the streets of cities, and to regulate hack-
ney-coaches and other vehicles.
Chapter 276. An act concerning the assessment of taxes.
Chapter 277. An act to prevent the explosion of steam-boilers.
Chapter 278. Au act concerning proceedings for partition of real estate.
Chapter 2S4. An act concerning sales of personal property under mortgage.
Chapter 28C. An act concerning district school-houses.
Chapter 287. An act establisliing the times and places for holding the probate court in the county of Hampden.
Chapter 28S. An act concerning the inspection of beef and pork.
Chapter 289. An act in addition to the several acts relating to the state prison.
Chapter 291. An act for the better preservation of order at muster-fields, and other places of public gathering.
Chapter 292. An act requiring returns from superintendents of alien passengers.
Chapter 294. An act concerning truant children and absentees from school.
Chapter 295. An act in addition to " an act concerning weights, measures, and balances."
Chapter 299. An act providing commissioners for the towns of Chelsea and North Chelsea.
Chapter 301. An act relative to school districts.
Chapter 303. An act to extend and punish the crime of larceny in certain cases.
Chapter 305. An act in addition to an act to cstablich a police court iu the city of 'Woreeflter.
Chapter 307. An act in relation to commissioners of the public lands.
Chapter 308. An act to require certain corporations to make returus to assessors.
Chapter 310. An act to establish a police court in the town of Pittsfield,
Chapter 315. An act in addition to " an act in relation to the state library."
Chapter 319. An act concerning notifications of creditors of insolvent estates.
Chapter (55. Kesolve concerning teachers' institutes. •
Chapter 89. Kesolve for the promulgation of the general laws and resolves.
One Thousand Eight Hiindred and Fifty-one.
Chapter 14. An act to enable the owner of equitable estates tail to convey the same in fee simple and unite the
legal estate therewith.
Chapter 16. An act relating to returns of votes for county commie sloners.
892
EXPRESS REPEAL — LAWS OF 1851.
[Chap. 182.
Chapter
24.
An act
Chapter
29.
An aet
Chapter
31.
An act
Chapter
38.
An act
Chapter
40.
An act
Chapter
12.
An act
Chapter
57.
An act
Chapter
58.
An act
Chapter
08.
An act
Chapter
70.
An act
Chapter
71.
An act
Chapter
82.
An act
Chapter
87.
An act
Chapter
88.
An aet
Chapter
91.
An act
Chapter
92.
An act
Chapter
93.
An act
Chapter
94.
An act
Chapter
96.
An act
Chapter
100.
An act
Chapter
102.
An act
Chapter
112.
An act
Chapter
127.
An act
Chapter
129.
An act
Chapter
133.
An act
Chapter
1.3G.
An act
Chapter
138.
An act
Chapter
147.
An act
Chapter
151.
An act
Chapter
156.
An act
Chapter
158.
An act
Chapter
161.
An act
Chapter
1C2.
An act
Cliapter
167.
An act
Chapter
186.
An act
Chapter 189.
An act
Chapter
190.
An act
Chapter
193.
An act
Ch.aptcr
201.
An act
Chapter
206.
An act
Chapter
20.8.
An act
Chapter
211.
An act
Chapter
213.
An aet
Chapter
214.
An act
Chapter
215.
An act
Chapter
216.
An act
Chapter
217.
An act
Chapter
218.
An act
Chapter
227.
An act
Chapter
2.38.
An act
Chapter
216.
An act
Chapter
247.
An act
Chapter
252.
An act
Chapter
253.
An act
Chapter
255.
An act
Chapter
250.
An act
Chapter
258.
An act
Chapter 261.
An act
Chapter 267.
An act
Chapter 268.
An aet
Chapter
273.
An act
Chapter
287.
An act
Cliapter 289.
An act
^"hnpter
290.
An act
Chapter
295.
An act
Chapter 298.
An act
rclnting- to the election of reg^isters of deeds and county treasurers,
authorizing^ notaries public to administer oaths,
concerning- probate bonds.
for the appointment of an assistant-clerk of the courts for the county of Middlesex,
conceruiug the election of representatives in congress and electors of president and vice-pres-
ident of the United States.
relating- to accounts for the support of state paupers.
concerning mortgages of ships or vessels.
to authorize shcriifs and their deputies to administer oaths to appraisers,
in further addition to an act conceruiug weights, measures, and balances,
to authorize members of city councils to hold other offices,
to provide for the taking of depositions in criminal cases,
relating to libels for divorce,
relating to writs of error in criminal crises.
to protect towns from injury by the neglect of railroad corporations.
in addition to an aet for the better preservation of order at muster-fields and other places of
public gathering,
concerning bail in criminal cases,
relating to jail breach,
concerning constables.
concerning prosecutions for the maintenance of bastard children,
to regulate tlie measurement of marble,
relating to the annual reports from railroad corporations.
to increase the Mas sachii setts school fund,
to establish a board of bank commissioners,
concerning malicious mischief,
relating to joint stock companies.
to facilitate the settlement of estates of deceased persons.
regulating the publication of advertisements issued under the authority of probate judges
and commissiouors of insolvency.
, concerning effects of passengers transported by railroad corporations and other common
carriers.
concerning larceny of real property,
relating to shop breaking and aggravated larceny,
in relation to the clerks of courts.
for the better preservation of municipal and other records,
providing for the appointment of police officers.
concx?rning vacancies in ward officers.
in addition to " an act to authorize towns to take land for school-houses."
in further addition to the several acts for the relief of iusolvent debtors, and the more equal
distribution of their effects,
for the appointment of land agent,
to prevent disturbances at funerals.
exempting the members of the ancient and honorable artillery company from jury duty,
to provide further remedy for creditors.
to authorize judges of probate to take the proof of the execution of deeds in certain cases,
concerning illegitimate children,
concerning the levy of executions,
concerning the location of highways.
to exempt agricultural societies from taxation,
providing for returns of moneys received by public officers,
to provide for the inspection of belt leather,
in relation to easements.
to provide for an additional term of the county commissioners for the county of Essex,
regulating the measurement of chestnuts and walnuts,
concerning arrests for offences committed on the Lord's day.
in addition to the " act concerning electric telegraph companies and electric telegraphing."
relating to stockholders in corporations,
concerning judges of probate.
concerning defendants in actions on jomt contracts,
to provide for change of the names of persons,
requiring returns from treasurers of institutions for savings.
in addition to "an act concerning the supreme judicial court and the court of common
pleas."
to authorize the business of banking,
concerning the police court of the city of Worcester,
concerning the powers and duties of justices of the peace,
concerning the powers of the police court of the city of Worcester,
concerning the recovery of damages against aqueduct corporations,
in relation to damages sustained by the laying out of highways,
concerning intercourse with convicts in the state prison.
in addition to an act concerning hawkers and pedlera. "^
Chap. 182.]
EXPRESS REPEAL — LAWS OF ISoI, 1852.
893
Chapter ;J0'>. An act to amend an act concerning the militia.
Chapter 303. An act in addition to au act in relation to sehoo! districts.
Chapter 305. Au act to authorize cities and towns to establish and maintain public libraries.
Chapter 315. An act conc^rnhig- stockholders in mauufacluring- corporations.
Chapter 317. An act relatinj^ to railroad crossings.
Chapter 319. An act relating- to the erection and use of buildings for 8t,ibleB and bowling alleys.
Chapter 32'J. An act in addition to the several acts for the relief of insolvent debtors, and the more equal distribu-
tion of their effects.
Chapter 324. An act to provide for the adoption of children.
Chapter 325. An act concerning proceedings and practice in civil actions before justices* courts, police courts,
justices of the peace, and trial justices.
Chapter 337. An act to secure the equal distribution of the property of insolvent corporations amongst their cred-
itors.
Chapter 330. An act to increase the number of justices of the court of common pleas.
Chapter 336. An act to authorize the county commissioners of Middlesex county to exercise certain powers in
Chelsea and North Chelsea, in Suffolk county.
Chapter 339. An act in addition to an act concerning banks and banking.
Chapter 342. An act to appoint a board of commissioners in relation to alien passengers and state paupers.
Chapter 343. An act to secure to mechanics and laborers their payment for labor by a lien on real estate.
Chapter 346. Au act relating to the punishment for offences mentioned in the one hundred and forty-third chap-
ter of the Revised Statutes.
Chapter 348. An act concerning the indictment of corporations.
Chapter 349. Au act in addition to the several acts for the relief of insolvent debtors, and the more equal distri-
bution of their effects.
Chapter
1.
ChapttT
4.
Chapter
9.
Chapter
10.
Chapter
14.
Chapter
29.
Chapter
33.
Chapter
37.
Chapter
41.
Chapter
44.
Chapter
40.
Chapter
51.
Chapter
54.
Chapter
55.
Chapter
56.
Chapter
M.
Chapter
75.
Chapter
76.
Chapter
86.
Chapter
104.
Chapter
112.
Chapter
113.
Chapter
114.
Chapter
115.
Chapter
119.
Chapter
123.
Chapter
126.
Chapter
127.
Chapter
129.
Chapter
132.
Chapter 137.
Chapter
140.
Chapter
142.
Chapter
143.
Chapter
144.
Chapter
154.
Chapter
159.
Chapter
163.
Chapter
169.
Chapter
175.
75*
One Thousand Eight Hundred and Fifty-two.
An act concerning the appointment of appraisers in civil process.
An act relating to shop breaking and aggravated larceny.
An act in addition to an act relating to joint stock companies.
An act concerning the custody of records.
Au act to amend the ninth and fourteenth sections of the one hundred and thirty fourth chapter of
the Revised Statutes.
An act to remove all disability to take and hold real est,ite by reason of alienage.
An act concerning bills of expenses against the commonwealth.
An act to define felony.
An act in addition to an act to facilitate the settlement of estates of persons deceased.
An act relating to tlie state lunatic hospitals.
An act concerning police courts.
An act giving concurrent jurisdiction to the supreme judicial court and court of common pleas, in
certain cases.
An act authorizing arbitrators, referees, and auditors to administer oaths.
An act for the voluntary closing of corporations.
An act in addition to an act concerning cemeteries.
An act to prevent the wilful injury of bank bills.
An act concerning judicial proceedings in the county of Dukes County.
An act relating to bonds.
An act to protect titles to real estate derived from aliens.
An act concerning the militia.
An act for the appointment of one additional commissioner of insolvency for the county of
Worcester.
An act in relation to the house of correction in the county of Suffolk.
An act to establisli additional terms of the court of common pleas for the county of Hampshire.
An act concerning auctioneers. ,
An act concerning the powers of school districts.
An act concerning the public schools.
An act to authorize reviews of judgments upon recognizances to the commonwealth.
An act to increase the number of justices of the supreme judicial court.
An act in addition to an act relating to the erection and use of buildings for stables and bowling
alleys.
An act concerning savings banks and institutions for savings.
An act in addition to an act concerning mutual marine insurance companies.
An act concerning tender in actions at law and suits in equity.
An act to establish a state board of agriculture.
An act to divide the commonwealth into districts for the choice of representatives in the congress
of the United States.
An act in relation to easements of light and air.
An act concerning the admission of aliens as attorneys at law.
An act concerning police justices.
An act in regard to the county commissioners for Chelsea, North Chelsea, and Winthrop.
An act concerning tlie duties of assessors.
An act concerning parishes and religious societies.
1
894
EXPRESS REPEAL — LAWS OF 1852, 1853.
[Chap. 182.
Chapter 181.
Chapter 186.
Chapter 18r.
Chapter 189.
Chapter 191.
Chapter 195.
Chapter VM.
Chapter 199.
Chapter 200.
Chapter 509.
Chapter 211.
Chapter 212.
Chapter 213.
Cliapter 210.
Chapter 222.
Chapter 224.
Chapter 234.
Chapter 2:W.
Chapter 2.38.
Chapter 240.
Chapter 241.
Cliapter 242.
Chiipter 245.
Chapter 240.
Chapter 247.
Chapter 248.
Chapter 249.
Chapter 254.
Chapter 250.
Chapter 259.
Chapter 202.
Chapter 207.
Chapter 209.
Cliiipter 275.
Chapter 279.
Chapter 282.
Chapter 283.
Chapter 287.
Chapter 288.
Chapter 289.
Chapter 291.
Chapter 592.
Chapter 293.
Chapter 294.
Chapter 290.
Chapter 298.
Chapter 299.
Chapter .302.
Chapter 303.
Chapter 304.
Chapter 307.
Chapter 312.
Chapter 314.
Chapter 318.
Chapter 319.
Cliapter .321.
Chapter 17.
Chapter 27.
J4.n act for the better establishment of the police court of the city of Newburyport.
An .act in regard to obstructinj^ engines or carriiiges on railroads.
An act coucerning the support of defendants committed to prison under the provisions of the forty-
ninth chapter of the Kevised Statutes.
An act in addition to the several acts for the relief of insolvent debtors, and the more equal distri-
bution of their effects.
An act to regulate the use of steam engines.
An act to authorize the manufacture of silk and other goods.
An act to estabhsh an adJitiou.al district for the administration of the criminal law.
An act in relation to district school-houses.
An act in addition to an act to establish the office of assistant clerk of the courts in the county of
Worcester.
An act concerning returns of elections.
An act respecting bail bonds in civil actions.
An act concerning trustees.
An act relating to discharged convicts.
An act concerning teachers' institutes.
An act conceruiug disturbances of schools and public meetings.
An act to prevent Jiud punisll fraudulent arrests.
An act conceruiug the assessment of taxes.
An act in addition to an act entitled an act to authorize the business of banking.
An act concerning the powers of county commissioners.
An .act concerning the attendance of children at school.
An act concerning inventories in tlie courts of probate.
An act concerning the stjite prison at CharIesto\vn.
An act in addition to an act coucoruing arrests for offences committed on the Lord's day.
An act concerning agricultural societies.
An act further to guard .against tlie explosion of steam boilers.
An act concerning the powers of guardi.ins.
An act to establish an additional term of the probate court in the county of Plymouth.
All act in addition to the act to punish abduction.
An act in regard to .appraisers of real estate taken on execution.
An act to punish the crimes of treason, rape, and arson.
An act in addition to an act to provide for the adoption of children.
An act in addition to an act to establish the office of assistant clerk of the courts in the county of
Middlesex.
An act relating to the treasurer of the state lunatic hospital.
An act in relation to paupers having no settlement in this commonwealth.
An act concerning alien passengers.
An act concerning certificates of elections.
An act in addition to an act concerning tru.ant children and absentees from school.
An aet concerning the counties in which actions may be brought.
An act relating to the court of common pleas in Hie county of Essex.
An act reliiting to returns by justices of the peace and other ofBcers.
An aet in addition to the several acts for the relief of insolvent debtors, and the more equal distri-
bution of their effects.
An act relating to trust estates.
An act in addition to the several acts for the relief of insolvent debtors.
An act to facilitate the settlement of the estates of deceased persons.
An act in addition to an act in relation to the carrying of slung shot.
An act relating to tlie police court of Worcester.
An act in relation to the jurisdiction of justices of the peace and police courts in regard to offences
against property in cemeteries.
An act to regulate tlie measurement of charcoal.
An act concerning r.ailroad corporations.
An act to establish a police court in the to\vn of Fall River.
An act in addition to an act to secure to mechanics and laborers their payment for labor by a lien on
real estate. »
An act relating to the proceedings, practice, and rules of evidence in actions at law.
An act to extend the jurisdiction of justices of the peace in civil actions.
An act to allow the auditor a further sum for clerk hire.
An act relating to parishes and religious societies.
An act to protect the right of suffrage.
Resolve for the compilation of a m.anual for arms with percussion locks.
Resolve concerning Scott's System of Infantry Tactics.
One Thousand Eight Hundred and Fifty-three.
Ch.aptcr 5. An act relating to railroad and highway damages in certain cases.
Chapter 23. An act concerning decrees of alimony.
Chapter 27. An act to prevent gambling in and about muster fields and places of public gathering.
Chapter 31. An act concerning the adoption of children.
Chap. 182.]
EXPRESS REPEAL — LAWS OF 18.53.
895
Chapter 3.3.
Chapter 34.
Chapter 3fi.
Chapter 49.
Chapter 5".
Chapter 69.
Chapter 74.
Chapter 78.
Chapter 90.
Chapter 93.
Chapter Ilfl.
Chapter 119.
Chapter 1J2.
Chapter l;;7.
Chapter 149.
Chapter 15f).
Chapter 100.
Chapter 174.
Chapter 179.
Chapter 184.
Chapter 188.
Chapter 193.
Chapter 194.
Chapter lur..
Chapter 253.
Chapter 25r..
Chapter 257.
Chapter 259.
Chapter 2fi9.
Chapter 275.
Chapter 281.
Chapter 2*4.
Chapter 295.
Chapter 305.
Chapter 310.
Chapter 312.
Chapter 315.
Chapter 3l(i.
Chapter 318.
Chapter 319.
Chapter 325.
Chapter 335.
Chapter 337.
Chapter 347.
Chapter 351.
Chapter 352.
Chapter 300.
Chapter 3150.
Chapter 309.
Chapter 371.
Chapter 378.
Chapter 380.
Chapter 388.
Chapter 389.
Chapter 392.
Cli.apter 303.
Cliapter 394.
Chapter 401.
Chapter 403.
Chapter 405.
Chapter 407.
Chapter 409.
Chapter 410.
Chapter 412.
Chapter 413.
An act to secure more equal taxation.
An act in relation to the powers ami duties of jailers and masters of houses of correction.
An act concerning the manner of voting at certain elections.
An act in addition to an act in relation to tlie office of secretary of the board of education.
An act for the butter establisliment of the police court of Salem.
An act in relation to sheriffs' bonds.
An act altering the times and places of holding certain probate courts in the county of Bam-
stable.
An act in addition to an act for the more equal assessment of taxes.
An act for the more speedy trial of actions by law.
An act concerning lunatics furiously mad.
Aa act in addition to the several acts for the relief of insolvent debtors, and the more equal distri-
bution of their etfects.
An act to establish the pay of watchmen of the state house.
An act to provide for the taxation of certain real estate belonging to the commonwealth.
An act in rebation to agricultural societies.
An act in addition to an act to authorize towns to take lands for school-houses.
An act to prevent the transaction of business under unauthorized names.
An act to amend the laws for the regulation of the inspection of pickled fish.
An act concerning the militia.
An act concerning the police court of the city of Boston, and the justices" court for the county of
Suffolk.
An act relating to receivers and concealers of stolen and embezzled property.
An act concerning armories for the use of the volunteer militia.
An act establishing state scholarships.
An act concerning implements of burglary.
An act to extend the jurisdiction of police courts in cases of assault and battery.
An act concerning illegitimate children whose parents intermarry.
An act concerning the rights of pew owTiers.
An act concerning partition of real estate.
An act concerning insane persons confined in houses of correction.
An act relating to the levy of justices' executions.
An act establisliing the salaries of the first and second clerks in the office of the secretary of the
commonwealth.
An {let relating to returns of justices of the peace and other officers.
An act relating to the salaries of certain officers of tlie state prison.
An act concerning the powers of commissioners of Middlesex county in the towns of Chelsea,
North Chelsea, and Winthrop.
An act to regulate the measurement of charcoal.
An act concerning county debts.
An act to regulate agricultural, horticultural, and ornamental tree associations.
An act in relation to the grades of certain streets and ways.
An act to define the coraraencement of suits in equity in certain cases.
An act concerning the state lunatic hospital at Taunton.
An act for the equalization of taxes.
An act for the correction of the county maps.
An act in addition to an act relating to banns of marria^'e.
An act relating to artillery companies.
An act in addition to an act entitled an .act to authorize towns to take lands for school-houses.
An act in addition to the several acts rcl.ating to county commissioners, and also in relation to rail-
roads.
An act concerning the state pauper establishments within this commonwealth.
An act concerning the transit of alien passengers.
An act relating to the commutation of bonds taken by superintendents of alien passengers.
An act relating to costs in civil actions.
An act giving equitable remedies in suits at law.
An act to facilitate the detection .and to prevent the circul.ation of counterfeit bank bills.
An act establishing the salaries of the judges of probate for the counties of Worcester, Essex,
Norfolk, and Plymouth.
An act in relation to pauper convicts.
An act relative to trust funds of parishes and religious societies.
An act to restrain the issue or circulation of bank bills for any fractional part of a dollar.
An act relating to the filing of affidavits of notice of sale of real estate.
An act to prevent the adulteration of drugs and medicines.
An act concerning bank directors.
An act concerning the adoption of children.
An act defining the liability of innkeepers for losses of their guests.
An act concerning probate courts in the county of Essex.
An act for the sale of the public lands in Maine.
An act concerning the partition of real estate. ■ ,.,.
An act to punish the offence of obtaining money by threatlli'
An act to change the jurisdiction of cases within the county of Suffolk, under the acts for the relief
of poor debtors and for the approval of bail.
896
EXPRESS REPEAL — LAWS OF 1853, 1854.
[Chap. 182.
Chapter 414. An act concerning the liability of railroad corporations for loss of life in certain cases.
Cliapter 418. An act to prevent carelessness and neglect of common carriers of persons.
Chapter 419. An act in further addition to an act providing for tlie appointment of public administrators.
I:;.
0.
Chapter 2
Chapter 7
Ch.iptcr 1 1
Chapter
Chapter 17.
Chapter :i3.
Chapter 24.
Chapter 34.
Chapter 39.
Chapter 4.i.
Chapter 59.
Chapter 00.
Chapter
Chapter 74
Chapter 77
Chapter 81,
Chapter 87.
Chapter 88.
Chapter 92.
Chapter 93.
Chapter 95.
Chapter 97.
Chapter 129.
Chapter 131.
Chapter 189.
Chapter 20().
Chapter 215.
Chapter 219.
Chapter 2.3s.
Chapter 25S.
Chapter 2r>2.
Chapter 270.
Chapter 277.
Chapter 28li.
Chapter 30O.
Chapter 302.
Chapter .307.
Chapter .308.
Chapter 309.
Chapter 314.
Chapter 318.
Chapter 322.
Chapter 320.
Chapter 327.
Chapter 328.
Chapter 329.
Chapter 335.
Chapter .339.
Chapter 341.
Chapter 34fi.
Chapter 354.
Chapter .358.
Chapter 301.
Chapter 307.
Chapter .372.
Chapter 373.
Chapter 377.
One Thousand Eight Hundred and Fifty-four.
An act authorizing the supreme judicial court to restrain railroad corporations by ii^unctioD from
entering upon aud using land in certiun cases.
An act concerning loans by banks to the commonwealth.
An act concerning the militia.
An act relating to the obtaining of property by false pretences.
An act relating to commissioners to take depositions and acknowledgments in other states.
Au act relating to the transportation of baggage on railroads.
An act concerning the adoption of children, and the change of name of persons.
An act to establish a police court in the town of Haverhill.
An act concerning the election of city, town, aud county officers.
An act relating to the state reform school and the state board of agriculture.
An act in addition to an act concerning the manner of voting at certain elections.
An act to establish a police court in the town of Milford.
An act relating to the election of representatives in the congress of the United States.
An act in relation to the division of water-rights.
An act concerning county commissioners.
An act to establish the salary of the clerk in the office of the acijutant and quartermaster-general of
the commonwealth.
An act in addition to au act in relation to public health.
An act concerning truants in the city of Boston.
An act relating to notices of meetings of commissioners upon the insolvent estates of deceased
persons.
An act in relation to delivering intoxicating liquors to persons in custody.
An act in addition to an act entitled " au act in addition to an act to provide for the conhncment of
idiots and insane persons."
An act in addition to " au act relating to the state library."
An act in addition to an act to establish the police court in the town of Milford.
An act establishing the salaries of certain public officers.
Au act in addition to an act concerning the state pauper establishments within this commonwealth.
An act relating to contracts for public works.
An act concerning the salary of the assistant-clerk of the courts of the coimty of Worcester.
An act in addition to an act concerning the transit of alien passengers.
An act in addition to an act concerning county debts.
An act relating to religious societies.
An act in relation to the hosi)ital on Rainsford Island for state paupers.
An act establishing the salaries of the warden, deputy-warden, chaplain, and inspectors of the state
prison.
An act to establish a police court in the town of Adams.
An act to authorize railroad comp.anies to issue bonds.
An act providing for the increase of the Massachusetts school fimd, and for the disposition of its
income.
An act in relation to visiting at the state prison.
An act concerning the publication of the condition of banks.
An act establishing the salary of the governor of the commonwealth.
An act concerning the returns of banks, made on the requisition of the governor.
An act relative to supcrintendenta of schools.
An act changing the place for holding certain terms of the probate court m the county of Worcester.
An act relating to the venue of transitory actions.
An act concerning fees of witnesses in cases of contested elections of members of the house of rep-
resentatives.
An act relating to mill and reservoir dams.
An act to authorize justices of the peace to impose imprisonment instead of fine in certain cases.
An act in arldition to the several acts for the relief of insolvent debtors, .and for the more equal dis-
tribution of their elfects.
An act to establish a police court within the city of Cambridge.
An act for the better security of property in logs, masts, spars, and other timber.
An act to establish the compensation of the messengers and door-keepers of the senate and house of
representatives and assistant-messenger to the governor and council.
An act relative to the police court in Worcester.
An act in addition to an act relating to the annual reports of r.ailroad corporations.
An act to protect the property of the Humane Society of Massachusetts.
An act to regulate the inspection and measurement of bark.
An act in relation to the militia.
An act establishing the salaries of judges and registers of probate.
An act concerning the salary of the adjutant-general.
An act relating to sales under powers in mortgage deeds.
Chap. 182.]
EXPRESS REPEAL — LAWS OP 1854, 1855.-
897
Chapter 37S. An act to prevent the obstruction of streets by railroads.
Chapter :i*0. Au act to prevent extortion by witnesses.
Chapter .1-so. An act concerniug- witness fees.
Chapter 400. An act in further addition to the act concerning the manufacture and sale of spirituous and intoxi-
cating liquors.
Chapter 401. An act iu relation to county commissioners.
Chapter -iOQ. Au act relating to the descent and distribution of the estate of intestates.
Chapter 410. An act in relation to female convicts.
Chapter 419. An act in relation to prosecutions for fines inuring to the use of cities.
Chapter 4'.i3. Au act in addition to the acts relative to the returns to be made by railroad corporations.
Chapter 4*,'4. An act to prevent incendiarism.
Chapter 4'-i-<. An act to make further provisions for mdows in certain cases.
Chapter 4*jy. An act to authorize cities and towns to appropriate money for certain purposes.
Chapter 437. An act concerning- lunatic state paupers, and admission to the state pauper establishments.
Chapter 4.'W. An act in addition to an act relating to joint stock companies.
Chapter 439. An act in addition to the acts for the relief of poor debtors.
Chapter 440. An act relating to actions at law.
Chapter 450. An act concerning the possession and use of billiards, bowls, and other like implements, for other
purposes than gaming.
Chapter 454. An act to authorize tlie business of loan and fund associations.
Chapter 32. Resolve authorizing the atljutant-gcueral to enlarge the '* manual of arms."
Chapter 3.
Cliapter 4.
Chapter 8.
Chapter 9.
Chapter 10.
Chapter lii.
Chapter 15.
Chapter 23.
Chapter 26.
Chapter 27.
Chapter 2S.
Chapter 43.
Chapter 45.
Chapter 53.
Chapter 50.
Chapter 64.
Chapter 05.
Chapter 06,
68.
69.
79.
83.
93.
93.
95.
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter 101.
Chapter 104.
Chapter 111.
Chapter 116.
Chapter US.
Chapter 120.
Chapter 121.
Chapter 122.
Chapter 124.
Chapter 126.
Chapter 128.
Chapter 132.
Chapter 135.
Chapter 137.
Chapter 140.
Chapter 140.
One Thousand Eight Hundred and Fifty-five.
An act in addition to an act concerning county commissioners.
An act to amend the two hundred jmd lirst section of the twenty-eighth chapter of the Revised
Statutes.
An act to amend the fifteenth chapter of the Revised Statutes, as to the election of selectmen.
An act to amend the sixty-first section of the thirty ninth chapter of the Revised Statutes and pro-
viding further remedies for persons whose lands are taken by railroad corporations.
An act in relation to laying out toAvn ways, and land taken for school-houses.
An act to amend the three hundred and twenty-second chapter of the statutes of eighteen hundred
and fifty-four, " in relation to transitory actions."
An act relative to the numbering of persons between the ages of five and fifteen years.
An act to amend the second section of the two hundred and twenty-third chapter of the acta of
eighteen hundred and forty-six, " concerning the duties of school committees."
An act to establish a police court in the town of Chelsea.
An act relating to the jurisdiction of the supreme judicial court in cases of divorce.
An act restricting the several courts established by the laws of this commonwealth from exercising
jurisdiction in cases of naturalization.
An act to authorize cities and to\vns to establish sidewalks.
An act to aid police officers and watchmen in the discharge of their duties.
An act concerning the punishment of drunkenness.
An act in relation to the trial of libels for divorco.
An act in addition to an act to prevent incendiarism.
An act to amend the first section of the eighty-second chapter of the acts of eighteen hundred and
fifty-one respecting libels for divorce.
An act to amend the fifth section of the one hundred and twenty -fourth chapter of the acts of eigh-
teen hundred and forty-one relative to the dissolution of attachments.
An act in addition to an act relating to joint stock companies.
An act to punish and prevent the crime of night- walking.
An act to establish a registry of deeds in the northern district of Middlesex.
An act to establish a police court in the town of Williamstown.
An act concerning the election of county treasurers and registers of deeds.
Au act in relation to school reports and returns.
An act to compel the erection of bounds at the termination and angles of roads.
Au act to amend an act entitled ** an act concerning the publication of the condition of banks."
An act to authorize the making of roads and drains in certain cases
An act relating to fiUug executors' bonds.
An act further to prevent and punish fraudulent arrests.
An act respecting watchmen.
An act relating to the fees of jurors and witnesses.
An act to regulate the business of pawu brokers.
An act to make pews personal property.
An act to establish a board of insurance commissioners.
An act concerning the payment of teachers' wages.
An act to authorize towns to establish fire departments.
An act to perpetuate evidence of the appointment of executors and administrators.
An act to punish certain frauds and cheats.
An act in relation to libels for divorce.
An act relating to the organization of corporations.
Au act relating to gas light companies.
113
898
EXPRESS REPEAL-
•LAWS OF 1855.
[Chap. 182.
Chapter 151. An act relative to state paupers.
Chapter 152. An act concerning the duties and riglits of jurors.
Chapter 153. An act to establish a police court in the city of Roxbury,
Chapter 157. An act relating to the limitation of actions.
Chapter 101. An act relating to volunteer fire engine companies.
Chapter 163. An act in furtherance of the discipline of academies.
Chapter ir>8. An act for the prevention of counterfeiting.
Chapter 172. An act in addition to the acts relating to state almsliouses and the support of paupers.
Chapter 177. An act concerning sales of real CKtate encumbered by mortgage or otherwise.
Chapter ISO. An act to prevent delays and expense in criminal proceedings.
Chapter ISo. An act relative to new trials in the supreme judicial court.
Chapter 188. An act regulating the sale of anthracite, bituminous or mineral coal.
Chapter 193, An act relating to the court of common pleas when held in and for the county of Bristol.
Chapter 114. An act relating to jurisdiction and proceedings in equity.
Chapter 197. An act for the better preservation of useful birds.
Chapter 213. An act to prevent the sale or disposition of collateral security.
Chapter 214, An act relating to the time of holding courts in the county of Worcester.
Chapter 215. An act concerning the manufacture and sale of spirituous and intoxicating liquors.
Chapter 222. An act relating to orrlinancos and by-laws of cities and towns.
Chapter 223. An act in relation to seals of corporations.
Chapter 224. An act establishing the pay of assessors and selectmen.
Chapter 226. An act in relation to proceedings in insolvency.
Chapter 231. An act concerning liens on ships and vessels.
Chapter 232. An act to regulate the sale of wheat, corn, and other grain, and meal.
Chapter 233. An act authorizing the sale of real c*state held by married women, who are insane, in certain cases.
Chapter 236. Au act concerning loan fund associations.
Chapter 239. An act concerning offences against public health.
Chapter 244, An act concerning the duties of school committees in signing school returns.
Chapter 245. An act in addition to an act to protect the Indian lands from trespassers and intruders.
Chapter 247. An act concerning the assessment of damages for mortgaged land taken for railroads.
Chapter 249. An act concerning' arrest in cases of tort.
Chapter 256. An act in amendment of" an act concerning public schools," passed March twenty-fifth, eighteen
hundred and forty-five.
Chapter 257. An act concerning burials and burying-gronnds.
Chapter 205. An act concerning bail in criminal cases.
Chapter 270. An act in addition to " an act to establish a police court in the city of Lawrence."
Chapter 274. Au act empowering the inhabitants of villages to establish watch districts within the same.
Chapter 275. An act to establish an additional district for the administration of the criminal law.
Chapter 276. An act in relation to persons committed to prison on warrants of distress.
Chapter 280. An act requiring guardians to render their accounts as provided for in the fifth section of the
seventy-ninth chapter of the Ilevised Statutes, as often as once in three years.
Chapter 383. An act concerning suits against executors and administrators.
Chapter 287. An act relating to by-laws of cities and towns.
Chapter 290. An act concerning manufacturing corporations.
Chapter 2W. An act in relation to savings banks.
Chapter 302. An act concerning trustees of charitable funds given or bequeathed to cities and towns.
Chapter 304. An act to protect the property of married women.
Chapter 307. An act in addition to " an act concerning executors and administrators, guardians and trustees."
Chapter 309. An act in addition to " an act concerning the attendance of children at school."
Chapter 311. An act regulating the fees of registers of deeds and other recording officers.
Chapter 312, An act to establish a police court in the town of Lee.
Chapter 314. An act in relation to conveyances and devises of estates for religious purposes.
Chapter 318. An act to amend an act to authorize towns to take land for school-houses.
Chapter 320. An act to change the place for holding certain probate courts in the county of Plymouth.
Chapter 321. An act for the better establishment of the police court of Ncwburyport.
Chapter 323. An act concerning the study of anatomy.
Chapter 32S. An act to establish the salary of the attorney of the commonwealth for the county of Suffolk.
Chapter 339. An act in further addition to the several acts concerning husband and wife.
Chapter 334. An act relating to the salaries of certain oflftccrs in the state prison.
Chapter 340. An act in relation to the accounts of committees of the legislature.
Chapter 350. An act to prevent obstructions to highways and town ways by railroads.
Chapter 350. An act to prohibit the use of poisonous substances in the manufacture of spirituous and intoxicat-
ing liquors.
Chapter 361. An act relating to savings banks and institutions for savings.
Chapter 303. An act in addition to various acts in relation to insolvent debtors, and for the more equal distribu-
tion of their effects.
Chapter 364. An act relating to summoning in defendants in real and mixed actions.
Chapter 366. An act relating to the registration of births, marriages, and deaths, in the state almshouse.
Chapter 369. An act in addition to an act in relation to public health.
Chapter 374. An act relative to the specific performance of written contracts.
Chapter 379. An act in addition to an act concerning the employment of children in manufacturing establish-
ments.
Chap. 182.]
EXPRESS REPEAL — LAWS OF 1855, 1856.
899
Chapter ;J9I. Au act in relation to offensive trades.
Chapter :J'J0. An aet in relation to trials tor libels.
Chapter 31*7. An act to authorize certain forms uuilcr " an aet concerning the manufacture and sale of spirituous
and intoxicatinf; liquors."
Chapter 399. An act c'dncerniug the places of holding certain terms of the supreme judicial court and the court of
common pleas in the county of Essex.
Chapter 405. An act for the supi)re9sion of certain common nuisances.
Chapter 410. An act to secure the daily reading of the IJihle in the public schools of the commonwealth.
Chapter 413. An act in relation to the houses of correction in the county of Essex.
Chapter 414. An aet to secure general vaceiuatiou.
Chapter 4H). An act in relation to voting lists.
Chapter 418. An act in additiou to an aet relative to " proprietors of lands, wharves, general fields and other real
estate lying in common."
Chapter 4'31. An act to establish a board of pilot commissioners for this commonwealth.
Chapter -i-^'i. An act supplementary to au act entitled " au act to regulate the sale of wheat, corn, and otiicr grains
and meals."
Chapter 42G. An act relating to divorce.
Chapter 427. An act relative to the justices of the court of common pleas.
Chapter 428. An act for the better establishment of the police court in the city of Fall River.
Chapter 429. An act to regulate billiard rooms aud bowling alleys.
Chapter 431. An act to secure to mechanics aud others payment for labor and materials by them expended.
Chapter 432. An act in addition to the several acts concerning executors, administrators, guardians and trustees.
Chapter 434. An act regulating the passing of vessels through railroad drawbridges.
Chapter 438. An act in relation to the a^-tion of dower.
Chapter 439. An act to secure a decennial census.
Chapter 4-10. An act in additiou to an act entitled " an act establishing the salaries of certam public officers."
Chapter 442. An act to establish a state reform school for girls.
Chapter 445. Au act relative to state paui)ers.
Chapter 4-i6. An act to prevent and punish incendiarism.
Chapter 449. An act to establish the superior court of the county of Suffolk.
Chapter 451. An act concerning filling vacancies in the office of prudential committee.
Chapter 452. An aet to secure the safety of passengers at railroad crossings.
Chapter 453. An act relating to the attachment of real estate conveyed in fraud of creditors.
Chapter 457. An act for the better protection of orchards, nurseries, gardens, &c.
Chapter 403. An act to establish a police court in the town of Chieopee.
Chapter 464. An act relative to lunatics or insane persona.
Chai>ter 466. An act in addition to " an act to require certain coriJorations to make returns to assessors."
Chapter 4G9. An act for abating nuisances.
Chapter 470. An act concerning the purchase of spirituous and intoxicating liquors for town agents.
Chapter 477. An act in addition to an act to establish a police court in the town of Chelsea.
Chapter 478. An act in further addition to *' an act relating to joint stock companies."
Chapter 486. An act in addition to " an act to appoint a board of commissioners in relation to alien passengers
and state paupers."
Chapter 487. An act for the punishment of embezzlement by county, city, and town officers.
Chapter 489. An act to protect the rights and liberties of the people of the commonwealth of Massachusetts.
Chnpter
1.
An act
Chapter
4.
An act
Chapter
10.
An act
Chapter
13.
An act
Chapter
18.
An act
Chapter
24.
An aet
Chapter
34.
An act
Chapter
.37.
An act
Chapter
38.
An act
Cllapter
3».
An act
Chapter
40.
An act
Chapter
47.
An act
Chapter
53.
An act
Chapter
CO.
An act
Chapter
03.
An act
Chapter
07.
An act
Chapter
08.
An act
Chapter
70.
An act
Chapter
71.
An act
Chapter
95.
An act
Chapter
90.
An act
Chapter
99.
An act
One Thousand Eight Hiindred and Fifty-six.
establishing a probate court in North Andover, in the county of Essex.
in addition to an act to establish a police court in the town of Tittsfield.
to establish the salaries of the justices of the supreme judicial court.
in addition to an act to establish a police court in the town of Chieopee,
requiring a new promise of an insolvent debtor, after his discharge, to be in writing.
respecting the custody of minor children whose parents are living separate.
amending the forty -ninth chapter of the Revised Statutes respecting the manner of sureties
surrendering their principals in bail bonds.
to establish the office of assistant clerk of the supreme judicial court in the county of Suffolk.
giving further remedies in equity.
relating to the unlawful use of private property.
in addition to an act in relation to female convicts.
respecting naturalization,
to authorize county commissioners to administer oaths and affirmations.
to change the name of the state reform school for girls.
in addition to " an act to establisli a state reform school for girls."
to establish the office of assistant attorney for the county of Suffolk.
in relation to lands mortgaged to the commonwealth.
relating to the venue of certain actions.
in further addition to an act in relation to law library associations.
in relation to the Boston clearing house.
relating to the return of writs in civil actions before justices of the peace and police CO ^ '''?•
concerning husband and wife.
900
EXPRESS REPEAL — LAWS OP 1856.
[Chap. 182.
Chapter 102. An act in addition to " an act suppressing horse racing'," approved on the eighth day of April, in
the year eiy^htcen hundred and forty-six.
Chapter 108. An act relating to lunatics and idiots.
Chapter 113. An act concerning the observance of certain days.
Chapter IIG. An act concerning the registry of deeds in the town of Littleton.
Chapter 118. An act to provide for the election of a register of deeds for the county of Suffolk.
Chapter 121. An act to prevent tiic evasion of the laws for the suppression of lotteries.
Chapter 122. An act establishing a probate court in North Bridgewater, in the county of Plymouth, and changing
the time of holding the probate court at Middleborough, in said county.
Chapter 123. An act to punish frauds in officers of corporations, and other persons.
Chapter 12o. An act relating to lists of jurors.
Chapter 130. An act in relation to appeals in criminal cases.
Chapter 135. An act in addition to an act entitled " an act for the removal of insane convicts from the state
prison."
Chapter 13G. An act in relation to ordering a stay or supersedeas of executions.
Chapter H2. An act relative to the house of correction and jail iu the county of Plymouth.
Chapter 150. An act relating to the support of certiun inmates of the state relbrm school for boys and the state
industrial school for girls.
Chapter 151. An act in relation to the salary of the physician and surgeon of the state prison.
Chapter 152. An act coneerniug the jurisdiction of justices of the peace.
Chapter 157. An act concerning the election of civil officers.
Chapter 15S. An act in addition to an act to establish the city of Springfield.
Chapter 102. An act in relation to probate courts in the county of Worcester.
Chapter 104. Au act in relation to the rights of children under guardiansliip to attend tlie public BchoolB.
Chapter 1(35. An act in addition to the acts relating to the annual reports of railroad corporations.
Chapter 10'.). Au act jiuthorizing the release of dower in behalf of married won\eu who are iusaue.
Chapter 170. Au act in relation to the court of common pleas in and for the county of Middlesex.
Chapter 171. An act concerning state paupers.
Chapter 172. An act concerning the police court of the city of "Worcester.
Chapter 173. An act concerning the election of clerks of courts and other county officers.
Chapter 174. Au act in addition to an act concci-ning mortgages of personal property.
Chapter 177. Au act concerning the salary of the register of probate for the county of Dukes County.
Chapter 181. An act in addition to an act concerning agricultural societies which receive the bounty of the state.
Chapter 184. An act in addition to an act in relation to law library associations.
Chapter IS5. Au act in relation to sherilTs and their deputies.
Chapter 186. An act coucerning idle and disorderly persons.
Chapter 202. An act to authorize the appointment of auditors, and defining their powers.
Chapter 20S. An act in relation to certain proceedings in probate courts.
Chapter 200. An act relating to the record of attachments.
Chapter 214. Section two only of an act for the protection of the fisheries on the south side of the town of Barn-
stable and district of Marshpee.
Chapter 216. An act concerning general fields.
Chapter 222. An act to punish fraud by the sale of adulterated milk.
Ciiapter 224. Au act concerning the election of representatives in congress.
Chapter 232. An act in addition to an act relative to superintendents of schools.
Chapter 239. An act in relation to the assessment and collection of taxes.
Chapter 245. An act for the better protection of the public at railroad crossiugs.
Chapter 246. An act to secure uniformity of fees in the courts of this commonwealth.
Chapter 247. Au act establishing boards of trustees for tlie state lunatic hospitals and in addition to the acts con-
cerning lunatic hospitals.
Chapter 249. An act in relation to the salary of the district- attorney of the middle district.
Chapter 252. An act concerning insurance companies.
Chapter 253. An act to authorize the governor to appoint commissioners of deeds in foreign countries.
Chapter 254. An act relating to the registry of deeds for the northern district of Jliddlesex.
Chapter 255. An act iu relation to the returns of votes.
Chapter 250. Au act concorning- the plantin<; of shade trees.
Chapter 257. An act iu relation to insolvent debtors.
Chapter 202. An act in addition to an act to establish a police court in the to\^ of Milford.
Chapter 2(V4. An act limiting the time for the organization of corporations.
Chapter 205. An act in addition to an act concerning probnto courts in the county of Dukes County.
Chapter 2('»0. An act changing the time of holding a term of the jjrobate court in the county of Bristol.
Chapter 208. An act in addition to " an act concorning judges of probate."
Chapter 271. An act concerning the sale of onions in this commonwealth.
Chapter 277. An act to fix the salary of the district attorney for the south-eastern district.
Chapter 278. An act to prevent waste.
Chapter 284. An act in addition to the several acts for the relief of insolvent debtors, and the more equal distri-
bution of their effects.
Chapter 292. An act concerning the indexing of deeds.
Chapter 294. An act relating to the board of commissioners on alien passengers and state paupers.
Chapter 298. An act to establish additional terms of the court of common pleas in the county of Worcester.
Chapter 307. An act to divide the commonwealth into districtR for the choice of councillors.
Chapter 308. Au act coneerniug the superior court of the county of Suffolk, and the court of common pleas.
Chap. 182.]
EXPRESS REPEAL — LAWS OP 1857.
901
Chapter
1.
Chapter
13.
Chapter
15.
Chapter
16.
Chapter
21.
' Chapter
20.
Chapter
30.
Chapter
34.
Chapter
30.
Chapter
3S.
Chapter
40.
Chapter
4S.
Chapter
50.
Chapter
51.
Chapter
55.
Chapter
50.
Chapter
CO.
Chapter
04.
Chapter
05.
Chapter
CO.
Chapter
71.
Chapter
rs.
Chapter
so.
Chapter
82.
Chapter
84.
Chapter
88.
Chapter
97.
Chapter
105.
Chapter
107.
Chapter
In.
Chapter
113.
Chapter
115.
Chapter
122.
Chapter
125.
Chapter
132.
Chapter
133.
Chapter
131).
Chapter
141.
Chapter
149.
Chapter
153.
Chapter
150.
Chapter
157.
Chapter
159.
Chapter
100.
Chapter
103.
Chapter
108.
Chapter
171.
Chapter
178.
Chapter
185.
Chapter
189.
Chapter
191.
Chapter
194.
Chapter
196.
Chapter
198.
Chapter
200.
Chapter
200.
Chapter
209.
Chapter
213.
Chapter
214.
Chapter
215.
One Thousand Eight Hundred and Fifty-seven.
An net coucerning clerks of county commissioners.
An act coueerniug' the police court of the city of Worcester.
An act to amend the tweuty-tirst section of tUe eighty -third chapter of the Revised Statutes, relative
to the bonds of registers of jirobate.
An act concerning' probate courts in tlie county of Berkshire.
An act to amend the four liundrod and sevcuty-eiglith chapter of tlie acts of eighteen hundred and
fifty- five.
An act for the better establishment of the police court of the city of Springfield.
An act to amend chapter fifty-live of tlic Ueviscd Statutes relating to fisheries.
An act in addition to an act rehitin<:^ to banns of marriage.
An act to change the place of holding the September meeting of the county conunissioners Of Mid-
dlesex.
An act to amend " an act concerning the indexing of deeds."
An act in relation to i)ubUc reports and tloeuments.
An act concerniug the trustees of African Methodist Episcopal churches.
An act concerning loan fund associations.
An act concerning police courts.
An act in addition to an act relating to leasehold estates.
An act to amend chapter two hundred and fifteen of the laws of one thousand eight hundred and
lifly-six, entitled " an act relatiug to the organization of corporations for educjxtional, charita-
ble, and religious purposes."
An act for taking the census of the legal voters and inhabitants of this commonwealth.
An act in relation to the removal of snow and ice from the sidewalks of cities.
An act concerniug the state honsc.
An act in relation to the jurisdiction of the supreme Judicial court.
An act i^ relation to the accounts of executors, admmistrators, and guardians, and the examination
of persons suspected of embezzlement in certain cases.
An act to establish the terms of tlie court of ]>rol)jite iu the county of Middlesex.
An act concerning the oflfence of obtaining property under false pretences.
An act relating to the pasturing of cattle or other animals in streets or ways.
An act authorizing transcripts of town or city records.
An act in relation to the form of bond to be given by executors who are residuary legatees.
An act for the better preservation of municipal records.
An act iu addition to an act entitled " an act iu relation to mortgages."
An act regulating the payment of fines and forfeitures in criminal cases.
An act to establish the salary of the assistant-clerk of the superior court of the county of Suffolk.
An act to establish terms of tlie iirobate court for the county of Barnstable.
An act to authorize cities and towns to set out shade trees.
An act concerning the state prison at Charlestown.
An act concerning the crimiual courts iu tlie county of Worcester.
An act to define the rights of the children of non-resideut pjirents to attend public schools.
An act relating to land taken for public ways.
An act to protect mariners and ship-owners from imposition.
An act to amend and consolidate the several acts couccruing imprisonment for debt and the punish-
ment of fraudulent debtors.
An act concerning petitions for partition.
An act to authorize the overseers of the poor to remove destitute and neglected children to alms-
houses.
An act to prevent the fraudulent sale of personal property leased or hired.
An act concerning the jurisdiction of poli<^e courts.
An act establishing terms of the probate court for the county of Bristol.
An act concerning wilful and malicious injuries to dams and reservoirs.
An act in addition to an act relating to mill and reservoir dams.
An act concerning railroad returns.
An act concerning election returns.
An act relating to trustees under railroad mortgages.
An act iu addition to " an act concerning the election of civil officers."
An act relating to common schools.
An act concerning the appointment of members of the legislature to certain offices.
An act in rel.ition to gaming, billiard tables, and bowling alleys.
An act relatiug to the salaries of certain officers of the state prison.
An act concerning the location of horse railroads.
An act relating to the trustee process.
An act concerning the branches to be taught in the public schools, and for other purposes.
An act relating to persons committed to the state lunatic hospitals, not having a known settlement
in this commonwealth.
An act in relation to crossings.
An act in addition to the several acts giving jurisdiction in eqnity to the supreme judicial court.
An act concerning the donation of Henry B. Kogors to the state industrial school for girls at Lan-
caster.
76
902
EXPRESS REPEAL — LAWS OF 1857, 1858.
[Chap. 182.
Chapter 221. An act exempting' certain classes of vessels from compulsory pilota-^e.
Chapter 222. An act concerning ecliool houses and other public building^s.
Chapter 224. An act authorizing' passports.
Chapter 225. An act concerning; drains and sewers in the city of Boston.
Chapter 228. An act relating to divorce.
Chapter 229. Au act to perpetuate the evidence of title to real property obtained under mortgage deeds eontoiSr
ing a power of sale.
Chapter 231. Au act in relation to worthless bank bills.
Chapter 2:{2. An act relating to auctioneers.
Chapter 233. An act concerning the crime of embezzlement.
Chapter 235. An act to exempt certain articles from attachment and execution.
Chapter 23r. Au act in relation to common carriers.
Chapter 240. An act concerning the annual returns of railroads.
Chapter 24:{. An act to regulate the use of proxies in banks.
Chapter 247. An act to amend the sixty-sixth chapter of the acts of eighteen hundred and fifty-five relative to
the dissolution of attachments.
Chapter 24S. An act relating to the inspectors of the hospital on Rainsford Island,
Chapter 249. Au act in addition to an act to protect the property of married women.
Chapter 2o5. An act in relation to the trial of libels for divorce.
Chapter 258. An act relating to imprisonment on execution.
Chapter 259. An act in addition to an act concerning insurance companies.
Chapter 200. An act to provide for the approval of bills of purchases for the state prison.
Chapter 261. An act relating to applications to the general court.
Chapter 2(>4. An act concerniug the police court of the town of Milford.
Chapter 2115. An act concerning the police court iu Lowell.
Chapter 200. Au act concerniug vacancies in school committees.
Chapter 207. An act respecting trials by the court.
Chapter 269. An act iu addition to an act establishing the salaries of certain public officers.
Chapter 270. An act providiTig for the election of school committees.
Chapter 272. An act establishing the salary of the clerk of the courts for the county of Hampden.
Chapter 274. An act establishing the salaries of the judges and registers of courts of insolvency.
Chapter 270. An act in addition to an act relating to joiut stock companies and for other purposes.
Chapter 277. An act in addition to an act concerning the indexing of deeds.
Chapter 280. An act relating to the sale of deadly poisons.
Cliapter 284. An act concerning the discipline of the state prison.
Chapter 287, An act in relation to the powers of county commissioners in laying out ways across railroads.
Chapter 289, Au act in relation to fugitives from justice.
Chapter 290. An act to secure returns from keepers of jails and overseers of houses of correction.
Chapter 291. An act in addition to " an act to regulate the use of railroads." ,
Chapter 292. An act concerning the draining of low lands.
Chapter 293. An act concerning the purchase and sale of spirituous liquors by city and town agents.
Chapter 294. An act in addition to an act to establish a police court m the town of Adams.
Chapter 295. An act in relation to the returns of votes.
Chapter 298. An act to exempt from levy on execution the homestead of a householder.
Chapter 300. An act concerning cases arising under the forty-ninth chapter of the Revised Statutes concerning
the maintenance of bastard children.
Chapter 301. An act in relation to the taxation of horses.
Chapter 305. An act to enable parties in civil actions and proceedings to be witnesses therein.
Chapter 300. An act for the equalization of taxes.
Chapter 307. An act relating to elections.
Chapter 30S. An act to apportion representatives to the several counties.
Chapter 309. An act to divide the commonwealth into forty districts for the choice of senators.
Chapter 310. An act to arrange the senatorial districts into eight districts for the choice of the council.
Chapter 311. An act concerning elections of representatives in the general court.
Chapter 19. Resolve for the payment of certain general expenses not otherwise provided for.
Chapter 49. Resolves in aid of the state library.
Chapter
1.
An act
Cliaptci-
2.
An act
Chapter
3.
An act
Chapter
5.
An act
ChaptCT
fi.
An act
Chapter
7.
An act
Chapter
]0.
An act
Chapter
12.
An !ict
Chapter
ai.
An act
Chapter
25.
An act
■Chapter
2fi.
An act
Chapter
ai.
An act
One Thousand Eight Hundred and Fifty-eight.
to establish a better system for the administration of the finances of this commonwealth.
to regulate the compensation of members, officers, and attendants of the legislature.
to perpetuate the evidence of foreclosure of mortgages of personal property.
concerning the branches to be taught in the public schools.
in addition to an act concerning elections of representatives to the general court.
relating to the distribution of the annual reports of railroad coi-p orations.
in addition to " an act to regulate the use of railroads."
relating to the state lunatic hospitals.
coucerning complaints before justices of the peace and police courts.
in addition to an act entitled " an act to establish the state reform school."
relating to the estates of deceased paupers.
relating to costs of coroners' and fire inquests.
Chap. 182.]
EXPRESS REPEAL — LAWS OF 1858.
903
Chapter
32.
An act
Chapter
33.
An act
Chapter
34.
An act
Chapter
40.
An act
Chapter
4.'!.
An act
Chapter
44.
An act
Chapter
45.
An act
Chapter
40.
An act
Cliapter
47.
An act
Chapter
48.
An act
Chapter
49.
An act
Chapter
54.
An act
Chapter
55.
An act
Chapter
50.
An act
Chapter
57.
An act
Cliapter
01.
An act
Chapter
C-'.
An act
Chapter
64.
An act
Chapter
07.
vVn act
Chapter
OS.
An act
Chapter
09.
An act
Chapter
70.
An act
Chapter
71.
An act
Chapter
72.
An act
Chapter
73.
An act
Chapter
70.
An act
Chapter
77.
An act
Chapter
78.
An act
Chapter
S.1.
An act
Chapter
S4.
An act
Chapter
.V).
An act
Cliapter
9.'i.
An .act
Chapter
103.
An .act
Chapter
KM.
An act
Cliapter
100.
An act
Chapter
Kir.
An act
Chapter
109.
An act
Chapter
110.
An act
Chapter
111.
An act
Chapter
IH.
.Vn act
Chapter
115.
An act
Chapter
110.
An act
Chapter
117.
An act
Chapter
118.
An act
Chapter
119.
An act
Chapter
120.
An .act
Chapter
121.
An act
Chapter
122.
An act
Chapter
132.
An act
Chapter
133.
An act
Chapter
135.
An act
Chapter
130.
An act
Chapter
137.
An act
Chapter
138.
An act
Chapter
141.
An act
Chapter
142.
.\n act
Chapter
143.
An act
Chapter
144.
An act
Chapter
145.
An act
Chapter
150.
An act
Chapter
151.
An act
Chapter
152.
An act
Chapter
154.
An act
Chapter
155.
An act
concerning the records of courts of insolvency.
in addition to nn act entitled " an act relating to the descent and distribution of estates of
intestates."
to amend the two hundred and sixth chapter of the acts of the year eighteen hundred and
fifty-one, to provide further remedy for creditors.
relating to the trustee process.
relating to the exemption of the property of widows and unmarried females from taxation,
to amend the forty-seventh chapter of tlie acts of the year eighteen hundred and fifty-six
respecting naturalization.
relating to police courts and justices of the peace.
in addition to " an act in relation to public reports and documents."
in relation to alimony.
concerning investments of savings banks and mutual insurance companies,
in relation to returns by agents of foreign insurance companies.
to amend the thirty-first section of the two huudred and eighty-fourth chapter of the acts
of the year eighteen hundred and fifty six.
to amend the four huudred and tliirty -first chapter of the acts of eighteen hundred and tifty-
five relating to liens of mechanics ami otliers.
relating to dower.
concerning the care of infant children of female convicts.
to amend '* an act in relation to tlie office of tlio secretary of the board of education."
in addition to an act entitled " im act to exempt from levy on execution the homestead of a
householder."
concerning the commitment of lunatics to hospitals.
to prevent the use of blanks for counterfeiting bank bills, certificates, and not«9.
concerning the measurement of fruit and vegetables,
to increase the amount of specie iu the commonwealth,
concerning notes payable on demand.
to amend the act providing for trial by jury before justices of the peace in certain cases,
relating to executors* bonds.
relating to the sale of property of insolvent debtors,
concerning proxies.
concerning the discipline of jails and houses of correction.
to establish tlie compensation of the lieutenant-governor, arid the members of the executive
council.
concerning the employment of children in manufacturing establishments.
to establish a police court in the town of Tauutou.
to abolish the land office.
to change the jurisdiction in matters of probate and insolvency.
in addition to the several acts in relation to the police court of the city of Xew Bedford.
concerning officers attending on the suiireme ju<lioiiil court in the county of Suffolk,
to provide for the preservation of books, reports, and laws received by cities and towns from
the commonwealth.
in addition to *' an act concerning the duties of assessors."
concerning the writ of certiorari,
concerning tlie state industrial school for girls.
to establish the salary of the district-attorney for the middle district,
in addition to an act to punish frauds in officers of corporations,
requiring certain additional bank returns,
concerning tlie officers of the Protestant Episcopal church,
concerning guardians and wards.
to fix the salaries of the district-attorneys for the northern, eastern, and southern districts,
concerning the preferred claims of operatives againRt insolvent debtors and corporations,
in relation to the court of common pleas for the county of ^yo^ce8te^.
concerning discharges in insolvency,
in relation to special administrators.
defining the salary of the superintendent of alien passengers.
in relation to conveyances and devises of estates for religious purposes.
relating to criminal jurisdiction in Uoston harbor,
to establish a police court in the town of Gloucester,
concerning the partition of real estate.
to provide for the better administration of the criminal law.
concerning the assignees of insolvents,
concerning fees in certain cases in insolvency.
in relation to limited partnerships,
to protect the rights of stockholders in corporations,
in relation to school districts,
to amend an act concerning insurance companies,
relating to public diversions.
in addition to an act concerning public amusements,
in relation to the crime of murder.
to amend the two huudred and eighty-ninth chapter of the acta of the year eighteen hundred
and fifty-two, concerning returns by justices of the peace.
904
EXPRESS REPEAL — LAWS OF 1838, 1859.
[Chap. 182.
Cbapter 156. An act to define tlie enlary of the adjutant-general.
Chapter 158. An act to regulate certain matters of finance, (except sections two, four, five, six, seven, eight, nine,
and sixteen.)
Chapter 159. An act for the appointment of watchmen and fireman to the state house.
Chapter IGl. An act in addition to an act relating to persons committed to the state lunatic hospitals, not having
a known settlement in this commonwealth.
Chapter 1G2. An act relating to the government of prisons.
Chapter KA. An act concerning the survey of lumber, ornamental wood, and ship timber.
Chapter l(i5. An act to amend the act to increase the amount of specie in the commonwealth.
Chapter IGO. An act concerning the militia.
Chapter lOS. An act in relation to the state almshouses.
Chapter 170. An act in relation to delinquent agents of foreign insurance companies.
Chapter 172. An act concerning the purchase and sale of spirituous and intoxicating liquors for town agents.
Chapter 175. An act to amend *' an act to protect the rights and liberties of the people of the commonwealth of
Massachusetts."
Chapter 177. An act for t!ie better establishment of the board of insurance commissioners.
Chapter 2. Resolve relating to the state library.
Chapter
7.
Chapter
10.
Chapter
2*2.
Chapter
25.
Chapter
27.
Chapter
30.
Chapter
37.
Chapter
39.
Chapter
50.
Chapter
.07.
Chapter
m.
Chapter
01.
Chapter
02.
Chapter
04.
Chapter
67.
Chapter
on.
Chapter
80.
Chapter
SI.
Chapter
8(1.
Chapter
01.
Chapter
93.
Chapter
90.
Chapter
101.
Chapter
102.
Chapter
103.
Chapter
ICH.
Chapter
100.
Chapter
107.
Chapter 108.
Chapter
no.
Chapter
114.
Chapter
110.
Chapter
118.
Chapter
110.
Chapter
121.
Chapter
125.
Chapter
120.
Chapter
127.
Chapter
128.
Chapter
131.
Chapter
132.
Chapter
133.
Chapter
1.3(i.
Chapter
13S.
Chapter
139.
Chapter
142.
Chapter
143.
Chapter
140.
Chapter
14S.
Chapter
1.55.
Chapter
157.
Chapter
15S.
One Thousand Eight Hundred and rifty-nine.
An act concerning the mileage of members of the council.
An act extending the time for taking out executions.
An act relating to the printing of the documents of the public series.
An act to amend an act to authorize cities and towns to establish and maintain public libraries.
An act relating to returns of elections.
An act relative to the specific performance of written contracts.
An act concerning real actions.
An act to amend an act entitled " an act to secure the safety of passengers at railroad crossings."
An act in addition to the several acts concerning courts of probate in the county of Dukes County.
An act relating to school reports.
An act concerning the selection and employment of teachers in public schools.
An act in addition to an act to provide for the adoption of children.
An act relating to paying fees of witnesses.
An act to increase the salary of the assistant-librarian and clerk of the secretary of the board of
education.
An act relating to damages from alterations in highways.
An act in relation to assignees of insolvent debtors.
An act in addition to " an act providing for the election of school committees."
An act relating to fugitives from justice.
An act concerning the attendance of children at school in adjoining towns.
An act to revive the laml office.
An act relating to school books and changes in the same.
An act to prevent cruelty to animals.
An act in relation to the diet, clothing, and bedding of convicts in the state prison.
An act relating to a return of pickled and smoked fish.
An act establishing the pay of members of school committocs.
An act concerning issues of stock by corporations.
An act to amend an act relating to the fisheries.
An act concerning the state lunatic hospitals.
An act to amend an act concerning the discipline of jails and houses of correction.
An act in relation to judges of probate and insolvency.
An act relating to the taxation of ships.
An act to punish and remedy the wrongful detention of bank bills.
An act to equalize taxation.
An act concerning the investment or deposit of money belonging to the estates of insolvent debtors.
An act concerning elections.
An act in relation in railroad crossings.
An act relative to horse and steam railroad crossings.
An act to secure the payment of rents.
An act relating to the division of water rights.
An act relating to bail in criminal cases.
An act providing for the registration of surveys made in laying out highways.
An act to establish the salary of the second clerk in the office of the secretary of the commonwcalth-
An act concerning school districts.
An act concerning the police court in Pittsfitld.
An act in relation to returns from jails and houses of correction.
An act exempting certain articles from execution.
An act in addition to the several acts concerning special administrators.
An act in addition to an act concerning insurance companies.
An act establishing the compensation of bank commissioners.
An act relating to the reports of the warden and inspectors of the state prlsoa.
An act relating to poll taxes.
An act relating to exhibitions of the fighting of birds and animals.
Chap. 182.]
EXPRESS REPEAL — LAWS OF 1859.
905
Chapter 160. An act relating to proof in criminal cases.
Chapter IGl. An act relating to tlie probate court in the county of Xantucket.
Chapter lfi2. An act relating to the removal of actions.
Chapter ltJ3. An act fi.ving the salaries of county commissioners.
Chapter 164. An act to establish the salary of the clerk in the office of the adjutant and quartermaster-general of
the commonwealth.
Chapter 166. An act relating to the collection of money fraudulently mthheld by attorneys at law.
Chapter 167. An act in addition to an act to establish a police court in the town of Chicopec,
Chapter iro. An act concerning the state reform school for boys.
Chapter 171. An act concerning collectors of taxes.
Chapter 172. An act in addition to the acts in relation to law library associations.
Chapter 174. An act regulating the manufacture and sale of bread.
Chapter 176. An act to establisli the pay of the watchmen of the state house.
Chapter 177. An act concerning the public charitable and reformatory institutions of the commonwealth.
Chapter 17S. An act relating to the salary of the register of probate and insolvency for the county of Dukes
County.
Chapter 1S3. An act relating to attachments of real estate.
Chapter 1S5. An act concerning actions on judgments.
Chapter isS. An act in addition to the several acts concerning the attendance of children at school.
Chapter IS'J. An act in relation to dividends by savings banks.
Chapter 100. An act extending the jurisdiction of the justices' court of the county of Suffolk.
Chapter 193. jVn act relating to the titles of justices of the peace designated and comuiissioned to try criminal
cases.
Chapter 194. An act concerning the liability of assignees for costs in certain cases.
Chapter 196. An act establishing the superior court.
Chapter 199. An act in relation to the carrying of dangerous weapons.
Chapter 200. An act relating to the attorney's fee in certaiu criminal prosecutions.
Chapter 201. An act relating to returns of police justices.
Chapter 203. An act relating to farmers' clubs.
Chapter 200. An act in addition to an act to punish fraud by the sale of adulterated milk, and to provide for seal-
ing measures used in the sale of milk.
Chapter 207. An act to abolish the office of crier of the courts.
Chapter 200. An act concerning the delivery of freight to connecting railroads.
Chapter 214. An act in addition to an act to establisn the state industrial school for girls.
Chapter 215. An act relative to coroners* and fire inquests.
Chapter 216. An act fixing the salaries of district-attorneys.
Chapter 21S. An act to amend the sixty-ninth and the one hundred and sixty-fifth chapters of the acts of the year
eighteen hundred and fifty-eight.
Chapter 219. An act relating to billiard rooms and bowling alloys.
Chapter 221. An act in addition to an act to regulate certain matters of finance.
Chapter 223. An act in relation to conveyances of laud or flats belonging to tlie commonwealth.
Chapter 224. An act to authorize the appointment of a surveyor-general of lumber, and the establishment of a
lumber district.
Chapter 225. An act concerning dogs.
Chapter 236. An act relating to military accounts.
Chapter 227. An act concerning taxation and returns of corporations to assessors.
Chapter 22S. An act concerning applications for juries to assess damages.
Chapter 229. An act relating to boarding-house keepers.
Chapter 230. An act concerning the competency of witnesses.
Chapter 231. An act to limit the contracting of county debts.
Chapter 232. An act relating to agricultural societies.
Chapter 233. An act concerning returns by officers of precepts in criminal cases.
Chapter 234. An act to prevent the infringement of trade marks.
Chapter 235. An act in addition to an act to i>rotect mariners and ship-o^vncrs from imposition.
Chapter 236. An act relating to police courts.
Chapter 237. An act to regulate proceedings in equity.
Chapter 23S. An act relating to schools, school committees, and school returns.
Chapter 239. An act relating to the bastardy process.
Chapter 240. An act relating to officers in the state prisou.
Chapter 241. An act relating to blank writs.
Chapter 245. An act in addition to an act to authorize the business of loan and fund associations.
Chapter 246. An act concerning mortgages of personal property.
Chapter 247. An act to define the right to take kelp and otiier sea-weed between high and low water mark.
Chapter 248. An act concerning persons sentenced to the state prison.
Chapter 249. An act in relation to the control and management of jails and houses of eorrecfion.
Chapter 200. An act in addition to an act entitled '= an act to regulate the measurement of charcoal," passed May
fourth, eighteen hundred and fifty-three.
Cliapter 252. An act to abolish the school district system.
Chapter 253. An act relating to county treasurers.
Chapter 254. An act in relation to insane convicts in the state prison.
Chapter 255. An act concerning state paupers.
Chapter 257. An act relating to tlie compensation and duties of shcrifl's.
7G. 114
906
EXPRESS REPEAL — LAWS OF 1859.
[Chap. 182.
Chapter 258. An act concerning the taxation of minors.
Cliapter 259. An act to regulate tlic use of Bteara-boilers.
Chapter 200. An act in addition to " an act concernlug electric telegraph companies and electric telegraphing."
Chapter 2()1. An act for the further protection of trees on higliways.
Chapter 202. An act relating to the annual returns of railroad corporations.
Chapter 20.'!. An act relating to schools.
Chapter 204. An act in addition to " an act providing for the election of school committees."
Chapter 207, An act in addition to an act to authorize the business of banking.
Chapter 200. An act establishing the salary of the messenger in the office of the secretary of the commonwealth.
Chapter 274. An act concerning the terms of the supreme judicial court in the county of Worcester.
Chapter 275. An act relating to terms of courts.
Chapter 276, An act in aildition to an act to authorize the .appointment of a surveyor-general of lumber, and the
establishment of a lumber district.
Chapter 282, An act relating to the jurisdiction in criminal cases.
Chapter 2&4, An act concerning the supreme judicial court.
Chapter 2S5, An act for the establishment of a nautical school.
Chapter 280, An act concerning the reform school, .and the nautical branch of the same.
Chapter 280, An act declaring the territorial limits of the commonwealth and establishing the limits of certais
counties.
Chapter 291, An act relating to the writ of habeas corpus.
Chapter 294. An act for the removal of constables for cause in cities.
Passed to be enacted.
House op Representatives, December 28, 1859.
CHARLES HALE, Speaker.
Passed to be enacted.
In Senate, December 28, 1859.
CHARLES A. PHELPS, President.
December 28, 1859.
Approved.
NATH. P. BANKS.
GENERAL ACTS
PASSED SUBSEQUENTLY TO THE PASSAGE OF THE REVISED
STATUTES, AND EXPRESSLY REPEALED BEFORE THE
PASSAGE OP THE GENERAL STATUTES.
statutes
Expressly repealed by
Statutes of
Statutes
Expressly repealed by
Statutes of
Year
Chapter
Year
Chapter
Section
Year
Chapter
Y'ear
1816
Chapter
Section
1830
154
1846
170
3
1843
79
196
1
"
208
1851
453
44
l&H
42
1846
170
3
"
231
1846
128
((
82
1854
453
44
"
238
1856
103
"
154
1857
141
31
"
235
1S37
224
3
1845
17
1854
453
44
"
250
1843
40
2
"
65
1854
453
44
i83r
128
1840
CS
5
"
70
1818
313
11
"
147
1849
81
2
"
100
1849
65
3
"
105
18H
127
1
"
111
1817
69
7
"
1-0
1855
102
1
"
153
1815
248
1
(t
1S3
1810
06
9
"
157
1819
209
2
"
192
1851
453
44
"
252
1840
190
"
238
184S
313
11
1816
82
1850
252
36
1838
14
IMS
43
1847
137
1857
189
3
"
2.3
1839
120
"
150
1855
479
(t
35
1851
453
44
"
248
1854
433
44
"
124
1840
03
6
u
201
1867
232
3
"
126
1857
228
4
"
273
1854
453
44
«
157
1840
1
1848
81
1854
453
44
"
178
1851
453
44
(C
85
1849
29
2
"
182
1856
113
3
"
134
1848
255
2
1839
75
1857
235
2
ti
168
1857
141
31
ISIO
63
ISH
51
"
210
1857
78
1
"
68
1857
00
5
"
280
1857
141
31
"
70
1848
2S3
"
290
1855
231
7
"
90
IvlS
202
1849
41
1857
16
2
u
96
1818
313
11
"
101
1854
453
44
1811
7
1855
102
1
«
127
1855
305
"
123
1813
11
1
"
139
1850
277
i
1812
9
1851
453
44
((
143
1850
25
"
21
1854
453
«
"
144
1857
260
4
"
31
1847
09
7
"
213
1850
239
6
"
46
1843
70
1S50
42
1857
232
3
"
56
1844
154
13
"
212
1857
141
31
"
95
1844
159
9
"
218
1850
239
0
18-13
22, §2
1847
208
2
"
229
185S
5
3
**
39
l&H
101
**
245
1859
225
15
(907)
908
ACTS PREVIOUSLY REPEALED.
Statutes
Expressly repealed by
Statutes of
Statutes
Expressly repealed by
Statutes of
Year
Chapter
Year
Chapter
Section
Year
Chapter
Year
Chapter
Section
1850
269
1851
308
2
1853
355
1858
43
2
272
1851
92
3
376
1854
453
44
274
1857
206
3
399
1854
450
2
279
1854
453
«
1854
63
1855
249
3
296
1855
197
5
72
1856
81
1
314
1851
328
1
295
1856
39
3
1851
90
1854
453
44
317
1855
192
1
157
1864
453
44
345
1856
81
1
105
1854
453
44
453
1850
252
SO
170
1854
453
44
1855
33
1857
10
2
226
1853
36
3
37
1855
432
2
233
1852
312
86
52
1859
129
239
1852
318
2
78
1859
89
2
257
1852
1
1
91
1856
113
3
262
1857
235
2
106
1859
258
2
281
1854
453
44
119
1855
398
2
301
1857
150
167
1856
125
3
307
1852
185
I
219
1857
202
2
jl856
101
3
220
1855
406
2
309
1 1857
266
4
238
1857
298
18
325
1852
312
SO
204
1857
235
2
331
1S54
453
44
290
1856
181
3
11855
238
7
300
1857
20O
3
340
il857
298
18 ■
412
1856
171
4
1852
197
1859
234
4
436
1857
200
3
227
1854
453
41
437
1857
151
"
231
1854
453
44
444
1857
141
31
274
1857
37
1
448
1857
157
3
281
1857
141
31
458
1850
99
2
284
1853
30
3
480
1856
1
1
286
1857
232
3
1856
101
1867
206
4
301
1857
275
(t
188
1857
305
3
"
311
1854
453
44
"
215
1857
56
0
322
1855
215
39
>i
273
1857
78
1
1853
153
1857
254
a
291
1857
262
2
2*3
1856
179
1
1857
102
1858
70
2
286
1857
37
1
>i
220
1858
118
2
333
1854
453
44
i(
303
1858
166
8
313
1854
88
6
1858
139
1859
225
15
349
1855
426
2
"
167
1859
104
2
A GLOSSARY
OF SUCH WORDS AND PHRASES CONT.UNED IN THESE STATUTES AS BELONG
TO FOREIGN LANGUAGES, AND THE MORE OBSCURE OF SUCH
OTHERS AS ARE MERELY TECHNICAL.*
Peepased by virtue of Chaptek 138 of the Resolves of 1859.
A.
ABATEMENT, plea of, is when for any default the
tk'feudaut prays that the writ or plaint do abate ; that
is, cease ag-aiust biiu for that time. Bmivier.
AD DAMNUM, {to the damage.) The declaration of
the phiiatilTs case in all personal and mixed actions
coneludes with the words " to the damage of the plain-
litf, as he says, the sura of ; " and this is called the
" ad damnum."
ALIAS, (another.) When prefixed to writ or execu-
tion, it means the second ; as, alias execution^ alias
wHt of capiaSt the second execution, the second writ
of capias.
AIiIEN. A subject of another government. An un-
naturalized foreigner.
ALIENATION, an act by which the property and
possession of real estate is transferred from one per-
Bon to another, wliich may be done by deed, devise,
or by matter of record.
ALIMONY, the allowance which is made by order
of court to a woman for her support out of her hus-
band's estate, upon being separated from hiui by
divorce, or pending- a suit for divorce.
ANS"WEIl is in this state used technically to mean
the stutomcnt of the matter intended to be relied upon
by the defendant in avoidance of the plaintiff's action,
and takes the place of special pleas in bar, and the
general issue, except in real and mixed actions and
actions before justices of the peace and police courts.
(Sec p. 650.)
In equity cases defences may be made by answer.
(See p. 559.)
ASSUMPSIT, action of, a form of action for the re
covery of damages for the non-performance of a con-
tract not under seal, nor of record. This action is
abolished in this state, and the cases to which it
applied may now be brought by action of contract.
(Seep. C5:t.)
ATTAINDER, the st^iin, forfeiture, and corruption of
blood which followed upon being condemned for cer-
tain crimes. The consequences of attainder were, 1st,
forfeiture of all the felon's estate, real and personal ;
2d, the corruption of his blood by which his posterity
were prevented from inheriting property from him,
or through him for any remote ancestor.
Bill of Attainuku, a bill brought into parliament
for attainting persons condemned for high treason.
Uy tlie constitution of the United States, art. 1,
sect. 10, states are prohibited from passing any bill of
attainder j and by art. .3, sect. 3, congress has " power
to declare the punishment of treason, but no attainder
of treason shall work corruption of blood or for-
feiture except during the life of the person attainted."
AUDITA QUERELA, a writ applicable to the case
of a defendant against whom a judgment has been re-
covered, and who is therefore in danger of execution, or
perhaps actually in execution, grounded on some mat-
ter of discharge which happened after the judgment,
and not upon any matter whicli might have been
pleaded as a defence to the action. Boumer.
AVOIRDUPOIS, a weight of which apound contains
sixteen ounces ; its proportion to a pound Troy being
as seventeen to fourteen. It is the weight of larger
and coarser commodities. Webster,
B.
BONA FIDE. In good faith.
BONUS, a premium.
BOTTOMRY, a contract in the nature of a mortgage?
of a sliip, on which the owner borrows money to em*-
ble him to fit out the ship, or to purchase a cargo for a
* In the preparation of this glossary, the editors have endeavored to give the ordinary meaning of the words and phrases
as they are used in this volume, in concise languajie, and with such illustrations ami citations as may be useful to the
general reader. Many of them have also other significations when used in different connections ; and the general definitions
to most of them, probably, are subject to limitations and modifications which cannot well be given in a glossary, but may
be found in dictionaries, and in treatises on the various subjects.
(909)
910
GLOSSARY.
voyage proposed, aud ho plodQ^es the keel or bottom of
the ship as a security for the repayment ; and it is stip-
ulated that if the ship should be lost in the course of
the voyaf,''e by any of the perils enumerated in the con-
tract, the lender also loses his money ; but if the ship
should arrive iu safety, then he sliall receive back his
principal and also the interest ag-reed upon, which is
generally called marine interest, however tliis may
exceed the legal rate of interest. Not only the ship
and tackle, if they arrive safe, but also the person of
the borrower, is liable for the money lent and the
marine interest. Bonvier.
c.
CAPIAS, {take you., or that you take.) A writ or pro-
cess commanding the officer to take the body of a per-
son is called a "capias," or a ■* writ of capias." A writ
directing the officer to " attach the goods and estate of
the defendant, and for want thereof to take his body,"
is called, a " writ of capias and attachment."
CAPITAL CRIME, a crime punishable with death.
CERTIORARI, the name of a writ issued by tlie su-
preme court to certain courts of inferior jurisdiction,
commanding them to certify and return to the supreme
court their records in a particular case, in order that
any errors or irregularities whicli appear in the pro-
ceedings may be corrected. It is the proper process
by which to bring before the supreme court for inves-
tigation the doings of county commissioners. It lies
for the purpose of correcting errors in proceedings
which are not according to the course of the common
law. (Seep. 743.)
It does not lie to the probate court. (S Cush. 529.)
CIVIL LA'W, the municipal code of laws of the
llomans. Degrees of kindred are by statute, in this
state, to be computed according to the rules of the civil
law. (See p. 474.)
Such computation is from one of the persons whose
relationship is sought, up to the common ancestor, and
then from tlie common ancestor, down to the other of
such persons.
COCCULtJS INDICUS, (.Indian berry.) A poison-
ous fruit, sometimes used in the adulteration of
liquors,
COMMON LA'W, in England, the unwritten law,
founded on custom and deriving its force and author-
ity from the universal consent and immemorial prac-
tice of the people.
In Massachusetts, " Our ancestors, when they came
into this new world, claimed the common law as their
birthright, and brought it with them, except such
parts as were judged inapplicable to their new state
and condition."
" So much of the common law of England as our
ancestors brought with them, and of the statutes then
in force, altering or amending it ; such of the more
recent statutes as have been since [before the revolu-
tion] adopted in practice ; and the ancient usages afore-
said, may be considered as forming the body of the
common law of Massachusetts." (8 Pick. 310, 317.)
(See also 2 Met. 1^:1. 10 Pick. lt>-:.».)
CONTINGENT REMAINDER, the remainder
of an estate in lands limited to take effect on an event
or condition wliich may never happen or be performed,
or which may not happen or be performed till after
the determination of the preceding particidar estate ;
in wliich case such, remainder never can take elfcct.
CONUSOR. As used in the statutes of Massachusetts,
conusor means the party entering into a recognizance
for debt, and comisee the party to whom the debt is
payable in such recoguizjuu-e. (See p. 771.)
CORRUPTION OF BLOOD. See Attainder.
COPARCENARY. COPARCENERS. In Eng-
land, an estate in coparcenary arose where a person
seised of lands and tenements in fee-simple or in tail
died, leaving only daughters, sisters, aunts, or other
female Iteirs ; in which case the estate descended to all
such daughters, sisters, Ac, jointly. By custom, in
certain cases, an estate descended to all the male heirs,
wlio became coparceners.
In this state, lands descend to all the children equally,
and there is no substantial difference between copar-
ceners and tenants in common. Grccnlea/'s Cruise.
COUNT, derived from the French cotiie, a. narrative.
The statement of each cause of action included in the
plaintiff's suit. The declaration which includes the
statement of the plaintifi''8 whole case may include one
or more counts for the same or different causes of
action.
COURT OP RECORD, technically, a court hav-
ing cuniiuDu law jurisdiction, with a clerk or other
officer required by law to keep a record of its pro-
ceedings. Such are the supreme judicial and superior
courts.
Police courts, ha\ing clerks, are courts of record.
(8 Met. 1G«.)
Courts of insolvency are so named by statute. (See
p. 581.)
Probate courts are not courts of record. (14 Mass.
227.)
COVERTURE, the state or condition of a married
woman.
CROZED. Crozing is the making of that place in
casks into which the head is fitted, being done with
a cooper's instrument called a " croze."
CURTESY, When a married woman is, during cov-
erture, seised of real estate, her husband is entitled to
hold the same after her death, for liis life, if, duriugtheir
marriage, they had issue born alive. This is called an
" estate by the curtesy," The rights given to married
women to hold property to their sole and separate use
do not take away the husband's estate by the curtesy.
(See pp. 471, 538, 539.)
CURTILAGE, the open space situated witliin a com-
mon enclosure of a dwelling-house and the buildings
connected therewith. (See 10 Cush. 480.)
D.
DE BONIS NON, (of the goods vot.) "When upon
the death, resignation, or removal of an executor or
administrator before the estate is fully settled, another
person is appointed to administer the estate not al-
ready admUiisteredy he is called "administrator do
bonis non," or if there is a will, "administrator de
bonis non with the will annexed."
DEBT, action of. A form of action for the recovery
of money due upon certain liabilities of record, under
seal or on penalties ; also for moneys due on contracts
" whenever the demand for a sum is certain, or is ca-
pable of being reduced to a certainty." It is now abol-
ished in this state. The cases to which it applied may
be brought by action of contract or tort. (See p. 653.)
GLOSSARY.
911
DEFEASANCE. A collateral deed, made at the
caiUL' tiuio with a conveyance, contuiuinjj conditions
upon the perfurmauce of which the estate may be de-
feated.
The terms of the condition of a mortgage, if made
by a separate instrument at the same time with the
deed, would be a defeasance, and the two instruments
constitute a mortgage. (See p. 71G.)
To be valid against third parties, the defeasance
must, in this state, be recorded in the registry of
deeds. (See p. 407.)
DEMURHEK, {to wait or stay.) When the declara-
tion, pUa, or rt'plication, &c., appears on tlic face of it,
aud without reference to extrinsic matter to bo defec-
tive either iu substance or form, the opi)osite party
may iu p"oncral demur, which has been defined to be a
declaration that the party demurrjug will 'go no
further,' because the other has not shown sufficient
matter against him." Chitttj.
" It confesses the facts to be true, as stated by the
opposite party, but denies that, by the law arising
\ipou these facts, auy injury is done to the pljiintiff, or
tliat the defendant has made out a legitimate excuse."
Jjlacl-^tone.
For particular cases, in which by statute parties
may raise issues in law by demurrer, see p. 655.
DISCLAIMER, (1*0 ahamlont to renounce.) A plea in
a real action, by which the defendant declares that he
has nothing and claims notliing in tlie demanded prem-
ises, aud wholly disavows and disclaims to have any
thing therein.
" It resembles a plea of tender of the whole sum de-
manded in an action of debt or assumpsit, in whi<li
case the defendant admits the plaintiff's riglit to tlie
thing in controversy, but shows that he had no right
of action for it." (KJ Mass. 442.)
DISCOTTTINUANCE, respecting real estate.
An alienation made or suH'ered by the tenaut in tail, or
other tenant seised in right of anotlier, by wliieh the
issue iu tail, or heir, or successor, or those in rever-
sion or remainder, are driven to their action aud can-
not enter. It is used to distinguish those cases where
a party, whose freehold is ousted, can restore it only
by action, from those iu which he may restore it by
entry. Bouvicr.
By statute, in this state, a discontinuance does not
take away or defeat any right of entry, or of action for
reeovery of real estate. (See p. 6'J2.)
DISSEISIET. See Seisin.
DISTRAIN", DISTRESS. A distress is the takinjr
of personal property, witliout process of law, from
tlie possession of a wrong doer, as a pledge to a party
injured for redress of the injury, or the performance
of some duty, or for the satisfaction of some claim.
Collectors may distrain for payment of taxes. (See
pp. SI, 82.)
Field drivers and others may distrain cattle going
at large or doing damage. (See p. 185.)
DURESS. " An actual or threatened violence of a
man's person contrary to law, to compel him to enter
into a contract, or to discharge one." Bouvicr.
E.
EASEMEWT. A liberty, privilege, or advantage in
hmil without profit, distinct from o^vncrship of the
soil ; sueli ns a right of way over the land of another,
or iu a public highway, &c.
ESCHEAT. The falling orpassingofreal estate to the
goveriinu'ut in the nature of reversion, by reason of
there being no person legally entitled to hold the
same.
In this state only two causes of escheat have ever
been recognized — one wlieu an alien purchased land,
and could not hold against the government ; and the
other, when a person died without heirs, seised of
land which he had not devised by will. (9 Mass. 3GS.)
The first of tliese is aboUshed by statute. (Sec p. 473.)
The second is still the law. (See p. 474.)
EX OFFICIO. Ly virtue of ofice,
EX PARTE, {of the one part.) Auy thingdono when
only one party is present is said to be done cj: parte.
EX POST FACTO. Something done after, and in
relation to, a former act. ^Vfter the deed is done, R&-
trospective. Worcester.
An e.v 2>ost facto lair is, technically, one which ren-
ders an act punishable iu a manner in which it was
not punishable when it was comnutted. Fletch^^r v.
Peck^ G Cranch, 87.
By article I, section 10, of the constitution of the
United States, the states are prohibited from passing
such a law. (See p. 5.)
It applies to laws respcctiu:; crines only. (9 Mass.
303.)
EXECtTTORT DEVISE. An executory devise of
lands is such a dispositiuu of them by ivill, that
thereby no estate vests at tlic death of the devisor,
but only on some future contingency. It differs from
a remainder in three very material points : First, that
it needs no particular estate to support it. Second,
that by it a fee-simple or other less estate may be lim-
ited after a fee-simple. Third, that by this means a
remainder may be limited of a chattel interest, after a
particular estate for life created in tlic same. Black-
stone.
It is a limitation by will of a future contingent in'
terest in lands, contrary to the rules of limitation of
contingent estates iu conveyimces at law. Bouvier,
F.
PEE, inheritance PEE-SIMPLE, a simple inher-
itance. An estate in fee, or fee sini])!''. is nn estate iu
lands held to a person, to him and his heirs forever,
generally, absolutely, and simply, without mention-
ing what heirs.
FEE-TAIL. An estate in tail, or in fee-tail, is an estate
in lands descendible to some particular heirs only of
the person to whom it is granted, and not to his heirs
general, Blachstone. Cruise.
PELONIT. By statute in this state, any crime ]iun-
ishable by death or imprisonment in the state prison,
and no other, is a felony. (See p. S2o.)
FEME COVERT. A married woman.
FORMEDOIxT, writ of. I'pon an alienation of the
tenant in tail, by which the estate in tail was discon-
tinued, and the remainder or reversion is, by the fail-
ure of the particular estate, displaced and turned into
a mere right, the remedy was by ai-tion of formodon,
because the writ comprehends the form of the gift.
Bouvicr.
This writ is abolished in this state. (See p. G96.)
FREEHOLD. A freehold estate is an interest in
lands held in fee, for life, or for some other uncertain
period. An estate for years, however long the time,
912
GLOSSAHY.
is not, by common law, r. freehold, because i!;:; duration
is certain.
But by statute, in this state, whoever holds lands
under u lease for one hundred years or more, so long-
as fifty Vf-'ars thereof remain imcxpircd, is regarded
as a freeholder. (See p. 471.)
G.
GENERAL ISSUE. A form of plea by a defendant
making a {general deniidofthe whole of the allegations
in the declaration, indictment, or complaint ay^ainst
him.
This plea is abolished in this state in all civil actions,
except real and mixed actions and actions before
justices of the peace and police courts, and an answer
&ubstituted. (See p. G50.)
HABEAS CORPUS, (have the body.) The writ of
habeas corpus is a writ i.ssued by a judge, magistrate,
or court, commanding: that some person held in cus-
tody or under restraint shall be brought before the
same or some other judge, magistrate, or court at a
certain time or place for the purpose of inquiry into
the leg^ality of tlie restraint, or of having the person in
court, for trial as a party, or as a witness, or for some
other cause making his personal attendance necessary.
HEREDITAMENTS. An inheritance or an estate
which descends to one by succession.
Incorporeal Hereditament is such a right issu-
ing out of, or eonci'rning-, or annexed to, or exercisable
within a thing- corporate or tangible, such as an annu-
ity charged on lands, and granted to a person and his
heirs.
HYPOTHECATION, a certnin kind of pledge of
personal property without delivery to the pledgee,
originally peculiar to the civil law.
In the common law, cases of hypothecation, in the
strict sense of the civil law, that is, of a pledge of a
chattel, without possession by the pledgee, are scarcely
to be found. Cases of bottomry bonds, and claims for
seamen's wages ag-ainst ships, are the nearest a]>proach
to it ; but these are liens and privileges rather than
hypothecation. Story.
I.
INNUENDO. An averment which explains the meau-
uig, or points out the application of some words or
matters expressed, commonly used in actions of slan-
der, but now, by statute, not necessary. (See p. Oiid.)
INSIKTUL COMPUTASSENT, (.they hnrl ac-
couitttd tof/rf!iry.) TIio tcclmical name of a count in
the plaintifTs declaration for a balance found due him
by the parties on accounting together. (Sec p. Gfi4.)
INTERLOCUTORY. Intermediate. An interlocu-
tory judgment, decree, or order, is one entered be-
tween the eommenct-'ment and the end of a suit, decid-
ing some particular point, without making a final
decision of the matter in issue.
ISSUE. In relation to kindrof], it means all persons
who have descended from a common ouccBtor,
In pleading, it is the close or result of the pleadings,
by which the single material point depending in the
suit is presented for determination.
J.
JOINT TENANTS, ESTATES IN JOINT
TENAJMCY. Applii/d to i-oal estate. Tlio peculiar
incident of an estate in joint tenancy, rtisting-uishing
it from an OHtate in common, is tlie rig-ht of survivor-
ship, by whicli, upon the death of any joint tenant, the
entire estate goes to the survivors or sui-vivor, and
the last survivor holds it to himself and his heirs. It
is a life estate to all but the last survivor.
L.
LEVY". A seizure. Commonly used in the statutes
to express the taking of property on executions to
satisfy judgments, or on warrants for the collection
of taxes.
LIEN. In its most extensive signification, it includes
every case in which real or personal property is
charged with or held for the payment of any debt or
dury. In a more limitt-'U sense, it is the right of de-
taining the property of another until some claim is
satisfied. Jiouvicr.
M.
MANDAMUS, (we nwnDnvd.') A mandamns is a
writ issuing in the name of the conmionwcalth, from
the supreme judicial court, and is directed to some
inferior court, or to some person or corporation exer-
cising a public authority, commanding tln-m to do
some particular thing specified in the writ, which it
belongs to their office or their duty to perform. And
generally in all cases of omissions or mistakes where
there is no other adequate specific remedy, resort may
be had to this writ.
MAYHEM is the unlawfully and violently depriving
andther of the use of such of his members as may ren-
der liim the less able in lighting either to defend him-
self or to annoy his adversary. And therefore, the cut^
ting off", or disabling, or weakening a man's hand or
finger, or striking out his eye or fore tooth, are held to
be mayhems. But the rutting ofl" his ear, or nose, or
the hke, arc not held to be mayhems at common law,
because they do not weaken but only disfigure hin.
Jilarkstone. Bovvier. (For the punishment of this
offence, see p. 792.)
MESNE PROCESS. Intermediate process, which
issues prnding the suit upon some collateral interloc-
utory order, as to summon juries, witnesses, and the
like. lilackstone.
It includes any process between original and final
process ; that is, between the original writ and the
execution. Bouvier.
With us, mesne process in common s|)eech, seems to
denote the original writ, or first process, by virtue of
which the proper officer attaches property, arrests
the body, or makes service on the defendant.
MESNE PROFITS. The value of the premises
(hiring tlie time that tin? owner has been wrongfully
kept out of the possession of Ms estate.
GLOSSARY.
913
MESSUAGE. Dwelliug-lionse. A g^ant ordcriseof
a inc!^su;ige will pass a house and the building^s bolong-
iiiy to it, its curtihigc, g^arden, aud orchard, and the
close ou which the house is built. Bouvier.
MINOR. In En^'laud and the United States, a person,
whotlior male or female, who has not attained the age
of twentynane years. Minors are also in law called
iilfants.
MISPKISION OP TREASON is the bare knowl-
edge and concealment of treason by being merely pas-
sive, and without any degree of assent thereto. Any
assent makes the person a principal traitor.
MITTIMUS, (we seiid.) It is the name of a precept
in writing, under the hand and seal of a justice of the
peace, or, if issued by a court, under the seal of the
court aud signed by the clerk, directed to the jailer,
commanding him to receiTeand safely keep the person
named therein until he shall be delivered by due couTBe
of law.
N.
NISI, (unless.) This word is used in legal proceedings
to indicate that any order, &c., shall take c3bct at a
given time, unless before that time the order, &c., is
modified, or something else is done to prevent its tak-
ing effect.
Nisi prlus, (unless be/ore.) Nisi prius^ applied to
terms of court, denotes those terms at wliich jury
trials are heard.
Cases in court are sometimes said to be continued
nlfi, which means that they are continued ftir a spe-
cial purpose, and that they \vill be entered on the
docket of the next terra, unless they are before that
time othi Twisc disposed of.
NOL. PROSSED, NOLLE PROSEQUI, (is not
(h'siroiis of prosecuting further.) Nol. prossed, ap-
plied to indictments and criminal prosecutions, indi-
cates that the prosecuting officer has discontinued
them.
NOLO CONTENDERE, (Ido not v?isk to contend.)
The namu of a plea by a defendant to an indictment or
criminal complmut, the legal effect of which is to
admit tlic truth of the charges in the indictment or
comphuut, and upon which the defendant may be sen-
tenced.
NON COMPOS. Xot of sound mind, memory, or
understanding. This is a generic term, and includes
all the species of madness, whether arising from
idiocy, sickness, lunacy, or drunkenness. Bouvier.
In this state, by statute, a person non compos is in-
cluded iu the words "insane person" and " lunatic."
(Sec p. 51.)
NON TENURE. A plea in a real action, by which
the defendant asserts that he does not hold either the
wliolo land, or some part of the land mentioned in the
pliiintiff's declaration. (See Discladier.)
NUNCUPATIVE "WTLL, A will made verbally.
A nuncupative will or testament is a verbal declara-
tion by a testator of his will before a competent num-
ber of legal witnesses. Bouvier.
In tliis state, by statute, a " soldier in actual mili-
tary service, or a mariner at sea, may dispose of his
wages and otlier personal estate by a nuncupative
will." fSecp. 477.)
77 115
O.
OLEOMETER. An instrument fbr testing the qual-
ity or purity of oil.
OUSTER, OUSTED. An ouster is the actual turn-
ing out, or keeping excluded, the party entitled to
possession of any real property corporeal. Any con-
tinuing act of exclusion from the enjoyment consti-
tutes an ouster.
Ousted indicates the condition of the party so kept
excluded.
OYER, (to hear; the hearing.) It 1b a term used in
pleading, and denotes that the person making the plea
asks that he may hear the bond, or deed, or instru-
ment, read, which is declared on.
P.
PETIT TREASON, (little treason.) This offence
was formerly the killing of a master by his sen'ant;
of a husband by his wife ; of his superior by an eccle-
siastical person, «ither secular or regular. It was
called petit (little) treason because of the civil or
ecclesiastical connections between the person killed
and the one taking his life. In this state, there is no
distinction between petit treason and murder. (See
p. 791.)
PLEA. A term in pleading denoting the defendant's
answer by matter of fact to the plaintiff's declaration.
The word is sometimes erroneously used to denote
the argument or address of counsel, either to the jury
or the court.
POSTHUMOUS, (after the death of) A posthumous
child is one born after the death of its parent. Posthu-
mous children by our statutes are considered as Uving
at the death of their parents, ibr the purpose of inher-
itance of property. (See p. 475.)
PRIMA FACIE, (on the first view or appearajice ;
at first sight.) Prima facie evidence of a fact, is that
which in law is sufficient to establish the fact, unless
rebutted.
*' Prima facie evidence is competent evidence
tending to prove a proposition of fact, and if it is not
rebutted or controlled by other evidence, will stand
as sufficient proof of such proposition of fact." (IGray
500.)
PROCHIEIN AMI, (next friend.) Where one as a
minor, cannot sue in his own name, he may sue in the
name of some person competent to sue, who is called
his prochein ami, and he is then said to bring the suit
by his prochein ami, or next friend.
PROPERT, (produces,) PROFERT IN CURIA,
(produces in court.) Where a plaintiff declares on a
deed, or a defendant pleads a deed and makes title
under it, he does it with aprofert, or profert in curna,
by declaring that he " brings here into 20urt the aaid
writing obligatory."
PRO RATA. Proportional.
PRO TEMPORE, PRO TEM. For the time
PROVOST MARSHAL. An officer of the army,
whose duties are to take steps for the prosecution of
914
GLOSSARY.
crimes and offences against military discipline, to seize
and secure deserters, to punish marauders, &c., to talce
charge of prisoners, and superintend tlie execution of
ponlslimcnts.
Q.
QUARAWTIWE. The apace of time iforty daijs,
more or loss) durin*? which a ship or vessel, com-
ing- from a port or place infected, or supposed to be
infected with a contagious or epidemic disease, is de-
tained, after her arrival, witliin certain desin^ijitcd lim-
its, g-cnerally called the quarantine ground, and during;
whicli time lier crew and passeng-cra are required to
remain on board, without intercourse with those on
shore.
Tlio word quarantine^ by the law of England, indi-
cated the space of forty days, during which the widow
of a landed man had a right to remain in lier hus-
band's principal mansion immediately after his death.
The right of the widow was also called her quaran-
tine.
QUAKE CIjAITSXTM. This is an abbreviation for
quare clausumf regit-, ** wherefore he broke tlie close."
It is generally used in connection with actions of tort
or trespass ; a.s, " (r(?s;>(iss quare clausum.*^ In such
connection, it means an action to recover damages for
breaking and entering the close {or premises) of the
plain till'.
QUASHED, QUASH, {overthrown., annulled, made
void.) Where proceedings in courts, whether civil or
criminal, are clearly irregular and void, the court will
qiinsk them ; that is, declare them void.
QUORUM signifies the number of persons belonging
to a legislative assembly, or corporation, or a society,
or other body, required to transact business.
Tlie word is also used to designate a class of jus-
tices of tlie peace, as justices of the peace and of the
quorum, to which class of justices of the peace some
special duties are assigned, and without whose pres-
ence, or the presence of one of them, such duties can-
not be transacted.
The duties imposed by statute, in this state, upon
justices of the peace and of tlie quorum, are the dis-
charge of poor debtors arrested on mesne process or
execution, and the approval of bail bonds.
QUO WARKAWTO, {l»j n-hat authority or war-
rant.) A writ issued from the supreme judicial court,
in the name of the commonwealth, against any person
or corporation that usurps a francliise or office, com-
manding the sheriff of tlie county to summon the de-
fendant to appear before the court from which the writ
issued to show by wimt authority (qtto warranto) he
claimB the franchise, or ofHcc meutioned in the writ.
R.
BE COGNIZANCE. An obligation of record, entered
into before a court, or ofBcer duly authorized for that
purpose, with a condition to do some act required by
law wliieh is therein specified, or pay the sum of
money theruin mentioned. In criminal cases, the con-
dition is, that the defendant shall appear before the
proper court to answer there to the charges against
him, and meanwhile to keep the peace, and be of good
behavior. Witnesses are required to recognize to
testify.
In civil cases, recognizances are entered into by bail,
conditioned that they will pay, upon certain contin-
gencies, the debt, interest, and costs recovered by the
plaintiff. There are also recognizances uuder the au-
thority of statutes. (Sec pp. 770, 772.)
REMAINDER. An estate in remainder is an estate
limited to take effect and be enjoyed after another
estate is determined. As if a man seised in fee simple
granteth lauds to A for twenty years, and fifter the
determination of the said terra, then to B and his
heirs forever; here A is tenant for years, and B has
the remainder in fee. BlacJcstone.
Contingent or executory remainders are
wlicre the estate in reinaiiHk'r is liniifed to take effect
cither to a dubious and uncertain person, or upon a
dubious and uncertain event; so that the particular
estate may chance to be determined, and the remain-
der never take effect. lUnelcstone.
Vested remainders are where the estate is inva-
riably fixed, to remain to a determinate person after
the particular estate is spent. Blackstone.
REPLEVIN. An action of replevin lies for the re-
covery spccijicaUo (in specie) of any personal chattel
wiiich has been wrongfully taken and detained from
the owner's possesBion, together with damages for the
detention.
REPLICATION. A term of pleading. It is the
reply wliich the plaintiff makes to the defendant's
plea or answer.
REPRISAL, writ of. {See Withernam.)
KES JUDICATA, (a inatter adjudged.) A question
settled by judicial decision.
RESPONDENTIA. A loan of money on maritime
interest, on goods laden on board of a ship, which in
the course of the voyage must from their nature be
sold or exchanged, upon this condition, tliat if the
goods should be lost in the course of tlie voyage, by
any of the perils enumerated in the contract, the lender
shall lose his money ; if not, that the borrower shall
pay him the sum borrowed, witli the interest agreed
upon. The contract is called respondentia, because
the money is lent on the personal responsibility of the
borrower. Bouvier. (See Bottomuy.'
REVERSION. An estate in reversion is the resi-
due of an estate left in the grantor, to commence in
possession after the determination of some particular
estate granted out by him. Blackstone.
s.
SOIRE FACIAS, {that you malce Icnonm or show
cause.) The name of a judicial writ, foun<led upon
eome record and requiring the defendant to slioio cause
why the plaintiff should not have the advantage of
such record.
SEISIN. The possession of an estate of freehold.
In the absence of other evidence, a deed of land duly
acknowledged and recorded, raises a presumption that
the grantor had sufficient seisin to enable him to con-
vey, and also vests the legal seisin in the grantee.
(15 Pick. 185.)
Disseisin is an ouster of the rightful owner from
the seisin or estate in the land and the commencement
GLOSSARY.
915
of a new estate in the wrong- doer. Notorious and ex-
clusive adverse possession without right, constitutes
a disseisin. (5 Met. .33.)
Disseised, unlawfully ousted, or expelled from,
and keptoutof the possession of, an estate of freehold.
SEVERAIj tenancy, a tenant in severalty is
he who holds lauds and tenements in his own right
only, without any other person being joined or con-
nected with him in point of interest during his estate
therein. Blackstone.
SOLE CORPORATION. A sole corporation con-
sists of ouly one pcrsou, to whom and his successors
belongs that legal perpetuity, the enjoyment of which
is denied to all natural persons.
SOLE TENANCT. A sole tenant is one who holds
lands in his own right, without being joined with any
other. Bourier.
SUBORNATION OP PERJURY. Procuring
another person to commit perjury, fp. 812.)
"To constitute subornation of perjury, the party
charged must have procured the commission of the
perjury, by inciting, instigutiug, or persuading the
guilty party to commit the crime." (5 3Iet. 215.)
SUBPCENA, (under penalty ; at your peril.) It is a
summons issued by a court or magistrate to compel
a witness to attend before a court or magistrate, or
some person or persons named in the process at the
tame and place therein mentioned, to testify what he
may know relating to the cause or matter described
therein. It usually concludes with words similar to
these : " Hereof fail uot, at your peril. ^*
Subpcena duces tecum, (at your peril bring loith
you.) This is a process issued by a court for compel-
ling the attendance of a witness, with a direction re-
quiring the witness to " bring with him " and produce
to the court the books, papers, &c., named in the pro-
cess, that are in his possession, or under his control,
tending to elucidate the matter in issue.
Subpoena, in equity practice. A mandatory writ
or process from the court, directed to and requiring
the person or persons, or corporation, &c., named
therein, to appear at the time and place mentioned
therein, and answer the matters charged against it,
him, or them.
SUMMONS. The name of a writ commanding the
sheriff, or otlier authorized officer, to notify a party to
appear in court to answer a complaint made against
him and in the said writ specified, on a day therein
mentioned. lionvier.
SUPERSEDEAS, iihat you stay or supersede.) The
name of a writ containing a command to stay the pro-
ceedings at law. Bouvier.
TAIL, ESTATE. (See Feb Tail.)
Tenant in tail. The holder of an estate tail Is
called a tenant in tall.
TALESMAN. A person returned by order of the
court from among the bystanders, or from the county
at large, to serve as a juror in order to complete the
panel. In this state, not more than five talesmen can
be returned for one jury, as the statutes provide that
there must be on the jury "not less than seven of the
jurors who were originally drawn and summoned."
(See p. CS2.)
TERMXNT. Limits, boundaries.
TORT. A legal iujury, a wrong. In this state, actions
of tort include actions of trespass, trespass on the
case, trover, and actions for penalties. (See p. 653.)
TRESPASS. An unlawful act committed with force
directly applied to the person or property.
Trespass on the case. The name of an action in-
stituted for the recovery of damages caused by an in-
jury unaccompanied with force, or where the damages
sustained are only consequential. Bouvier.
TROVER, {to find.) The name of an action brought
to recover the value of personal cliattcls wrongfully
converted by another to his own use. Bouvier.
TROY "W^EIGHT. A scale of weight used for
weighing gold, silver, diamonds, &c. The pound
contains twelve ounces, or five thousand seven hun-
dred and sixty grains.
VENTRE, VENIRE FACIAS, {to come, that you
cause to come.) The name of a writ issued by the clerk
of the court, directed to the sheriff, commanding him
to cause to come before the court on a specified day,
from certain towns of the county named in the writ,
a cert;iin number of persons qualified to serve aa
jurors.
VENUE OF ACTIONS. The venue is the county
from which tlie jury are to come who arc to try the
issue. Bouvier.
As used in tlie eUitutes, it means the county where
the action is to be brought. (See pp. 020, G21.)
w.
WASTE. A Bpoll, or dcetructlon in bouses, gardens,
trees, or other corporeal hereditaments, to the disher-
ison of him that hath the remainder or reversion in fee
simple or fee tail. Jlluckstone.
■WITHERNAM. The name of a writ used in con-
nection with the action of replevin.
In this state, when, in an action of replevin to deter-
mine the legality of the distraint or impounding of
cattle, the defeud.ant has judgment th.it the cattle be
returned and restored, a writ of return may issue to
carry a judgment of that kind, when rendered before a
justice of the peace, into execution, by which writ the
officer is directed to restore to the defendant the same
beasts that the plaintiff had replevied from him. If
the officer upon this writ makes return tliat the prop-
erty is withheld so that he cannot get it, a writ of
withernam may issue, by which the officer is directed
to take other goods of the plaintiff in witliemam, (Jjy
way of reprisal,) and hold them until the plaintiff re-
stores to the defendant the beasts he took from hun
by the writ of replevin. In this state, the writ of
withernam is called a ^vrit of reprisal. (See pp. 732,
733.)
INDEX.
A.
ABATEMENT.
of actions broug-ht in wronof county, . . . . 620,001
non-tenure, disclaimer, several tenancy, and joint
tenancy may be pleaded in, or in bar
in writs of entry 093
upon plea of, judgment of slng^le judge to be
final, 5GG
pleaded for non-joinder of other defendants,
plaintiff may have leave to amend,
508, 057, 058, 759
provisions respecting pleas In, to apply to com-
plaints under laws relating to mills, . 759
of complaints for flowing- land, on account of
defects of form, &c., ne^v may be
brought within one year, 759
of proceeding's for assessments of damng^es for
land taken by railroads, new may be
brought within one year, 353
of real or personal action in certain cases, new
may be brought within one year, al-
though otherwise barred by statutes
of limitation, ' 777,778
Answer in, may be made of any defence which
might have been made by jilea in abate-
ment, 655
when overruled or amendment made by
plaintiff on account thereof, defendant
to answer or plead to merits, . . . 055, 050
may be amended by defendant, or he may on
leave answer over, 058
when issue of fact is joined on, how final
judgment to be entered, 058
forms of, 007, 008
Not to be had, in writs, processes, &c., for
cirruinstautial errors, nor defects of
form, 057,830
for defects which can be, and arc on leave
amended, 658
by nonjoinder of other defendants, ag"ainst
whom action of contract is barred by
limitation, 779
by reason of use of fictitious name for an
unknown defendant, 022
by parties becoming insane, 050
by marriag-e of female plaintiff or defendant, 650
by return or release of husband after action
brought by wife in her own name by
reason of his abandoning her, or of Ills
imprisonment, 542
77*
ABATEMENT — coH^/HMfrf.
hi/ resignation, removal or death of public
ofiicers or statute trustees, 650
of superintendents of industrial and state
reform schools, 417, 420
of assignees of insolvent debtors, .... 589
of executors and administrators, . . . 050-052
of public officers, in case of process of man-
damus, 744
by death of parties in complaints for flow-
ing land, 759
in action for waste, 709
in petitions for jury in highway cases, . . 235
in petitions for partition, 049
of trustee, in trustee process, .... 725, 720
of parties in real and personal actions and
proceeding's, general provisions, 048, 040,050
in insolvency proceeding's, 583
In criminal cases, pleas of, to an indictment,
may be refused to be received by court
until proved, 840
of indictments and complaints not to take
place for certain defects of form, . . , 842
Of nuisances, 453,710
Of taxes, 79, 80, 81
ABDUCTIOISr.
of unmarried female, under sixteen years, for a
clandestine marriage, how punished, 817
of unmarried women for prostitution, 817
prosecution therefor limited to two years, . 817
ABOBTION.
punishment for unlawfully procuring' or at-
tempting to procure, 818
for aicUng and assisting, 818
for advertisiiitr means for procuring, 818
ABSENT DEFENDANT.
when and how liable to actions 045, 640
personal actions against, when may be main-
tained, 645
actions of tort against several, to be conducted
against any one absent as if he were
sole defendant, CACy
60 in real and mixed actions, . , 047
of contract may proceed against those who
are served with process, although
some defendant is absent, 047
and again'^t him who is absent only in the
same manner as if he were the only
defendant, G47
918
INDEX.
ABSENT D^'F'E'N'D ANT — continued.
Cross actions ;i;^^:iinst, 645
if plaintiir ie out of state, defendant may
bring cross action , 645
if there are several defendants, each may
bring such action, and set off judg-
ments, 645
writ in such cases, liow served, .... 045, 640
actions may be continued to enable absent
parties to attend, or execution to be
set off, 64G
not subject to otlicr provisions respecting
absent defendants, 640
Service of writs against, how made in differ-
ent eases, 62;J, 040, 647
Bummous or copy to be left at last and usual
place of abode, or with tenant, ageut,
or attorney, 623
ifhehasno such abode in the state, tenant,
agent, or attorney, officer need make no
fui'ther service, except, &c., 623
if there is a eo-defendant, summons or copy
for absent defendant to be left with
him, 623
in real actions, summons or copy to be left
with tenant or occupant of, or on con-
spicuous place on premises, 623
Purttier notice to be given whore service is
defective, or defendant is out of state,
or his residence unkuoAvn, .... 023, 646
may be ordered on suggestion of phuntilT, . 646
may in any case, when defendant does not
appear, be ordered by court, 646
cases to be continued until such notices
have been given, G46
how given in cases before justice of the peace, 005
Judgment and execution against, . . . 640, 047
not appearing and answering after notice
given as ordered by court, to be dc-
ftiulted, and judgment to be entered
.tgainst, 005, 040
execution ou such judgment in personal ac-
tion not to be taken out within one
year, unless plaintiff gives bond, 005, 040
bond to be deposited with clerk, 046
if execution so issued is levied on real es-
tate, absent defendant may I'ctake same
on review in certain cases, 040
if judgment is for seisin in a real action, bond
need not be given, 646
writ of seii^iu in such case may issue and be
levied, 640
if judgment is reversed on review, defendant
may have restitution of his land, . . . 040
when part only of defendants in actions of
contract are absent, how judgment
rendered, 040
effect of such judgment on liability of other
parties, Cti7
action on judgment obt-uned by default in
certain cases subject to sjmic defence
as upon review, 602
May have review as of right, witliin one
year after judgment by default, , . . 747
and on petition and leaveof court, within one
y<'ar after notice of judgment, .... 747
On petitions for partition, 040, 701-703
how notified when proceedings are pending
in supreme or superior court, .... 000
in probate court, 703
agent for, to be appointed when petition is
pending in probate court, 703
ABSENT DEFENDANT — co«/ui««;.
may have new partition within three years
alter judgment, 701,702
in proceedings for the enforcement of
liens, 763
ABUSE.
of female child under ten years of age, . . . 793
ABUSES.
and errors in inferior courts, how corrected
by supreme court, 553
ACADEMIES.
preceptors and teachers of, incorporated, ex-
empt from serving as jurors, 080
to impress principles of piety, temperance,
&c., 216
ACCESSORY.
liEFOitE THE Fact.
to burning, by wilfully, Ac, cutting, &c., bell
rope, injuring fire engine, &c., within
twenty-four hours of fire, 796
convicted of tliree distinct larcenies at same
term, bow punished, 798
to larceny of real estate, 798
jurisdiction in such cases, 799
to a felony, how to be punished, S25, 826
bow, wlien, and where to be tried, 826
After the Fact.
to burning, by wilfully, &c., cutting, &c., bell
rope, injuring fire apparatus, &c.,
preventing the giving of an alarm, or
obstructing the extinguishing of
fires, 790, 797
to larceny of real estate, 798
jurisdiction in such cases, 799
to a felony, who to be deemed, and bow jjun-
ished, S26
how, when, and whore to be tried, S2G
ACCIDEWT AJSTD MISTAKE.
suits in cases of, may be brought in supreme ju-
dicial court in equity, 559
ACCOUNT.
money of, to be dollar, cent, and mill, 292
otherwise made, not vitiated, but to be re-
duced to dollars, &c., 292
ACCOUNT CURRENT.
in actions to recover balance due on, limitation
to run from last item proved, . . . 777, 778
ACCOUNTS.
suits in equity upon such as cannot properly be
adjusted at law, 559
annexed, in action of contract, when and how al-
lowed, ('>54, 064
when may be stated by auditors in actions of
contract, tort, and replevin, 010
allowed in set-off, 009-(;71
of e.vecutors, administrators, and guardians, 494,
405, 504, 545
of assignees of insolvent estates, , . . , 5SS, 5W, 505
ACCUSED.
right of persons, at trial, to defend themselves,
have counsel, produce and meet wit-
nf sses. 0, 15, 70O
ACKNOWLEDGMENT.
or new promise, in actions of contract, . . 778, 779
must be in writing, and signed by the party
chargeable, 778
by one of several joint debtors, not to affect
the others, 779
and proof of deeds, 467
of the discharge of mortgages, 409
after execution for possession is levied, . . 715"
INDEX.
919
ACQUITTAL.
when by reason of prisoner's insanity, to be so
stated by jury, 842
Former, when a bar to proceedings against
duellists, &c., 702
on the merits, a bar to subsequent prosecu-
tion for same offence, 790
on the ground of variance, or on exception
to form, &c., of indictment, not a bar, 790
ACTIONS.
Divisions of personal, only three, contract,
tort, and replevin, 653
of contTact^ to include assumpsit, covenant,
and debt, except for penalties, .... G53
oftort^ to include trespass, trespass on the case,
trover, and all actions for penalties, . C53
writ in, need not contain declaration unless
an arrest is made, C55
ofreplet-in, 730-733
Civil, to be commenced by original writ, ... 02
not barred by criminal proceedings for same
offence, 840
unless such proceedings are stayed upon
representation to party injured, &c.,
payment of costs, 839, 840
forms of, may be amended before final judg-
ment, 058
may be commenced against unkno\\Ti defend-
ant by fictitious name, 622
against corporations and persons not liable
to arrest, commenced by writ of at-
tachment and summons, 621, 622
by and against married women, in what
cases may be brought, . , , . 538, 541, 050
in what cases not to be brought against hus-
band for wife's debts, 538
parties to, may manage their own in court, or
specially authorize any person to act, 015
not to be brought agaiast parties out of state,
unless they have lived in state, or an
attachment is made, G45
cross-nctious against such parties may be
brought for purposes of set-off, . , , 045
(.Vce Absent Defcndanis.)
Where and how to be brought, in different
cases, 020, 021
transitory, to be brought where one of the
parties lives or has his usual place of
business, if cither lives in this state, . 020
if neither lives in the state, may be brought
in any county, 020
trustee process, in county where one of trus-
tees dwells, or has his usual place of
business, 721
whether local or transitory, by or against
counties, whore to be brought, .... 021
where, by or against corporations otiier than
the city of Boston, or any coimty, . . 021
where, by or against towns, cities, parishes,
religions societies, and school districts, 621
by or against Boston, may be brought in
Suffolk, Essex, Middlesex, or Norfolk,
or where jjlaintiff lives, 621
if brought in Suffolk, by Boston, may be re-
moved by defendant to another county, 021
concerning land in different counties, may be
brought in cither county in certain
cases, 620, 021
for forfeitures, to be brought in county where
offence was committed, 621
on recognizances, 564,641,835,830
{See Recognizances.)
ACTIONS — continued.
how brought, and judgment, &c., entered
on bonds, &c., with penalties, . . 685,686
(^See Bonds.)
upon judgments obtained upon default, sub-
ject in certain cases to same defence
as upon review, 602
one action may be brought against persons
severally liable on same contract, . . 654
declaration in such case, 654
trial may be had on different issues, ac-
cording to order of court, 654
one or more executions may issue therein, 654
may, before final judgment, be amended so
as to enable parties to maintam their
case for causes intended, 658
cause of, to be deemed same for which action
was brought, when, &c., 602
when 60 adjudged, conclusive of the facts
against parties to the record, 062
other parties, not notified, not bouud by
such adjudication, 062,663
may be brought in their own names by the
purchasers of claims sold by assignees
of insolvent estates, 595
what may be brought for money advanced
for repairs of mills in different cases, 761
{See Mills.)
By and against executors, &c., all actions
which survive may be commenced
and prosecuted by and against execu-
tors and administrators, 651
they may voluntarily take upon themselves
the prosecution or defence of actions
commneced by their deceased,
648, 049, 651, 652
or may be cited in, 048, 652
judgment, how entered when they do not
appear, G48
they may apply to county conmiissioners in
cases where deceased had a right of ap-
plication, but did not apply before his
decease, 650
actual damages only to be recovered against
executors and administrators for torts
committed by deceased, 051
proceedings in actions by and against execu-
tors and administrators,
491, 414, (H8, 049, 651, 652
special administrator may maintain, but not
liable to, by creditor, 484
not to be brought against executors, &c.,
after estate is represented insolvent,
except for preferred debts, &c., . . . . 498
on bonds given by, how brought, &:c., . . . 505
{Sec Executors, Administrators^ LimitationSj
Sitrririiiff of Actions.)
Against officers and stockholders, liable
for deltts of corporations, . . 30'.), 340, 386
For damages for land taken for railroads,
may be had anew in certain cases, . 353, 354
Limitation of. (See Limitation.) 777-779
Not abated, by circumstantial errors and de-
fects of form, 057, 836
by plea or answer in abatement, if defect is
amended, 058
by death, removal, resignation of public of-
ficers, assignees, and others,
(See Abatement.)
Continued, nisi, in supreme court, how judg-
ment to be entered, 557
{See Continuance.)
920
INDEX.
ACTIONS — coutinued.
Deemed at issue, when allegatione are closed,
or plea iu real action is filed, 657
Trial, by jury iu» may be waived, 001
Changes, in matters in, may be euggeated on
record, 6C2
Costs, in, at law, "80,781
those that might have been joined, 781
where there arc Bcveral counts, and some
are found for plaintiff and some for
. defendant, 781
Heal and respecting real estate.
of dower, C97
of entry-, 01)2-096
for foreclosure and redemption of mort-
gages, 712 717
of forcible entry and detainer, 707, 708
for partition of lands, GOS-706
of petitions for settlement of titles, GOG
for private nuisances, 710,711
of information for intrusion, ^-c, , . . 717-719
ofii-atife and trespass on real estate, . . 708-710
ACTS AND RESOLVES. {See Laws.)
to be bound in separate volumes, 49
acts of incorporation to be deemed public acts, . 50
list of repealed actP, 900, 907
ADJOURNMENT.
Of senate and house of representatives,
roppeotively, 20, 21
Of general court, 23
Of congress, or either house thereof, .... 3
Of courts, iu case of war, pestilence, or other
calamity, 017
Of supreme and superior courts, by any
officer upon order of court, 018
when judge is absent, how adjourned, and
notice given by sheriff, 508
from one shire town to another, 508
Of probate courts, by the judge, as occasion
i-equires, 577
by register when judge is absent or office is
vacimt, 577
Of coxirts of insolvency, jndge may adjourn
court or meeting of creditors, .... 581
register may, when judge is absent or ofiico
is vacant, 582
of meeting, business done at to have same
effect as if done at original meeting, . 581
Of police courts, from time to time, to same
or different places in district, 571
to a future day, parties and witnest;es in
criminal cases not required to attend
from day to day, 571
Of cases before justices of the peace, to
other times and places, as occasions
require, 010
not exceeding teu days in certain cases, . . 832
when a justice fails to attend at time and
place to which a civil process is re-
turnable or continued, any other jus-
tice may adjourn case, G05
Of sale of personal property taken on
execution, 088
not to exceed seven days at one time, . . . 088
notice of, how given, OSS
ADJUTANT-GENERAL. (See Militia.) . 95, 101
ADMINISTRATION.
to whom granted, and in what order, 4S3
not to be granted after twenty years, 483
except when property accrues or first be-
comes known after that time, .... 483
or when necessary to distribute the divi-
ADMINISTRATION- coHr/ww^rf.
deuds of insolvent estate of deceased
person, 499, 500
to be revoked on proof of will, 4s3
jurisdiction of probate court in granting, . . . 574
court first diking cognizance of, iu any case to
retain jurisdiction throughout, . . . . 574
first granti-'d to extend to all estate of deceased
in this state, 574
wlien to be granted to public administrator, . . 483
De bonis non, how and when granted, &c., 492, 503
With will annexed, when to be granted, . . 482
bond in such cases, 482
during executor's minority, 482
Special, when may be granted, 484
Ancillary, 508
ADMINISTRATORS.
who entitkil to be, and in what order, 483
of married woman, husband to be, unless, &c., . 483
bond to be given with condition, &c., 483
to bo approved by judge of probate court, . 505
when exempted from giving, for proceede
of sale of real estate, 505
when new, may be required, 505
provisions concerning surety, &c., on, . 505-507
to give notice of appointment, 491
to make affidavit of notice, 491
to return inventory within three mouths, . . . 488
may foreclose mortgage, 489, 490
to hold premises iu trust until redeemed, . . . 490
may sell real estate held iu mortgage, or after
foreclosure by obtaining license, . . . 490
limitation of actions against, by creditors, . . . 491
when assets are received after two years, . 491
when action fails from defect in form, in-
sufficient service, »S:c., new action may
be commenced, 491
proceedings when right of action accruee
after two years, 401, 492
provisions not to affect rights of action
against heirs, 492
not liable to actions within a year, except,
&e., 492
when not liable for deficiency of assets, . . 492
when may be discharged on payment of whole
estate, before notice of other demands, 492
if he pays away part, and remainder of estate
is insufficient to pay subsequent de-
mands, when to be liable only for part
that remains, 492, 493
if there are two or more such demands, he may
represent estate insolvent, 493
not liable to creditors, when estate Is exhausted
by paying preferred debts, 493
when may demand security of legatee, &c., to
refund, 493
liabUity of, for unnecessary delay in collecting
debts, 493,404
claims of, &c., may be submitted to arbitration, 494
or same decided by court or jury, on appeal, 494
to account for personal estate at appraisal, . . . 494
to be charged with increase, and allowed for de-
crease, of appraisal, 494
upon petition of, court m<iy order sale of personal
property and outstanding claims, . 404, 495
may transfer mortgages, 495
not chargeable with bad debts, 495
chargeable with certain effects not iu inventory, 495
with income of real estate, if received, . . , 495
to render account witliin one year, and further
accounts when required by the court, 495
how liable for not rendering accounts, 495
INDEX.
921
ADMINISTHATORS — conitHMe<i.
allowances to, for services, 495
costs against, how paid and allowed, .... 49(3, G51
duties and liabilities of, when estate is insol-
vent, 496, 499
may be sued after eighteen months, if question
of insolvency of estate is not settled
at that time, 499
penalty on, for neglect to settle accounts within
six months of commissioner's return, 499
of trustee not required to accept trust, . .... 501
powers and duties of, as to redeeming lands of in-
testate, &c., taken, &c., on execution, . 523
register of probate and insolvency not to be in
his county, G02
suits between co-administrators and their rep-
resent^atives, may be brought in equity
in supreme court, 559
to pay in full judgment recovered for goods at-
tached against the deceased as an offi-
cer, 548
may voluntarily take upon themselves the pros-
ecution or defence of actions com-
menced by or against deceased, 648,
649,651,652
or may be cited in, 648, 652
if they do not appear in sueli cases, judg-
ment, how entered, 648
may apply to county commissioners in case^
where the deceased had a right of
application, 650
in actions against, for tort committed by de-
ceased, actual damages only to be
recovered, 651
of a trustee, carrier, or depository, who recov-
ers judgment for goods, or the value
of goods belonging to others, not to
take the same as assets of the estate,
but to deliver them to the owner, . . 651
not to account for goods returned upon a judg-
ment of return in replevin, 651
writ and execution against, on account of debts
due by the deceased, not to issue
against their bodies nor estatp, . . . 651
personally liable for costs in actions com-
menced or prosecuted by themselves, 651
execution in such case to be awarded
against their bodies and estate per-
sonally, , 651
when judgment is for debt and costs, two ex-
ecutions to issue, one for costs against
administrator personally, and the
other for debt against estate of de-
ceased, C51
costs paid by, may be allowed in their ac-
counts, 651
scire facias may be sued out against, on sugges-
tion of waste, when execution recov-
ered against, for debt of deceased,
has been returned unsatisfied, .... 651
may in such case be issued by justices of
the peace, 605
by or against, on judgments recovered for
penalty of bond, covenant, or agree-
ment, against deceased, when there
are subsequent brcaclies, 6S6
liable in such action for whole debt, .... 651
death of, not to abate suit commenced, but same
may be prosecuted by administrator
de bonis nou, G4S, C52
dying after judgment by or against him, scire
facias may bo sued out by or against I
116
ADMTNTSTRATORS — continued.
administrator de bonis non, and a new
execution issued, 632
execution in such case, how to issue, . . . 652
writ of error may be brought by adminis-
trator de bonis non on such judg-
ments, 652
in actions by and against administrator,
how demands by and against the de-
ceased may be set off, 670
may be prosecuted in actions for waste com-
mitted by deceased, whether actions
are commenced before or after death
of testator or intestate, 709
may tender sums due on mortgages, of which
deceased owned right of redemption,
and bring or prosecute suits for re-
demption, 715
shall acknowledge satisfaction, or give release,
when an execution for possession on
a mortgage has been levied, and sub-
sequently paid, 715
liable to be summoned as trustees on account
of debts, legacies, and effects, in their •
hands, 723
how in cases where deceased waa sum-
moned as trustee while liWng, . . 725, 726
to scire facias on judgment in trustee pro-
cess, in certain cases, 726
(See Trustee Process.)
With, will annexed, when to be appoint-
ed, 482,483
bond in such t;ases, 482
De bonis non, liable to actions for two years, 492
to give notice of appointment, 492
if he fails to give notice, not to have benclit
of limitations, 492
to be further liable, if new assets are received, 492
Special, when may be appointed, 484
to act, though decree of appointment is ap-
pealed from, 4S4
to give bond, and condition thereof, .... 484
powers and duties of, 484
compensation of, 484
allowance to widow, &c., from funds ia
hands of, 484
appeal not to prevent payment of such al-
lowance, 484
may pay funeral expenses, &c., by leave of
court, 484
to cease to act.,&c., on appointment of ex-
ecutor, &c., 484
not liable to creditors, &c., 484
Beatli, removal, &c., of, 503
upon death of, administration de bom's non
to be granted, 503
may be removed by probate court for cause,
and if sole, new one appointed, . . 503, 504
acts of, before removal, to be vahd, .... 504
marriage of administratrix extinguishes her
authority to act, 504
and, if there is no other administrator. &c.,
court to appoint, 504
may resign by leave of coiii-t, 504
Accounts, discharges, comproniises, and
releases, 504
accounts of two or more joint, may be al-
lowed upon oath of one of them, . . 504
final discharge of, and evidence thereof, how
perpetuated, &c., 504
to deposit money due, if not claimed for six
months after decree, • ., - 504
922
INDEX.
ADMTNTSTRATORS — continued.
Bucli mouey to be paid over afterwards, when
court orders, .501
may compromise claims, by leave of court, . 504
may execute certain releases of real and per-
sonal estate, by leave of court, . . 504, 505
ADOPTION.
of cliiUlren, 547,548
ADULTERATION.
fraudukut, for purposes of Bale, of bread, or
any substance intended for food, . 822, 823
of any liquor used or intended for drink, 822, 823
knowingly selling such adulterated liquor, . 823
of drugs and medicines, 823
knowiugly selling such drugs, 823
adulterated articles to be forfeited, 822, 823
ADULTERY.
cause for divorce, 532
how punished, 817
when between married woman and unmarried
man, the man deemed guilty of, ... 817
ADVAJSrCEMENTS.
to heirs, &e., to be taken, in division, &:c., of es-
tates, as part of share, 474, 475
not to be refunded, though it exceed share, , , 475
how to be considered, in division of estate, . . 475
how to be proved, 475
to issue not to be computed, in distribution to
widow, 485
value of, how ascertained, 475
if descendant dies before intestate, leaving Is-
sue, to be considered in division, . . . 475
not to affect title of tenants in dower or by the
curtesy, 475
questions arising on proceedings for partition
of real estate may be determined by
coui-t in wliii.'h case is pending, . . . 705
or case may be continued until the questions
are determined by probate court, . . . 705
ADVERTISEMENTS.
partyiiiay select paper for certain, 577,582
AFFIDAVIT.
making a denial concerning a time, sum, quan-
tity, or place alleged, to state what
time, sum, quantity, or place is ad-
mitted or denied, C5G
of merits to be made by defendants, in civil ac-
tions, within ten days of return of
writ, or before end of return term, . . 059
time may be extended by order of court, . . 059
when to be made by absent defendants who
come in on notice, 040
of interrogating party, or his attorney, to be
annexed to Interrogatories filed in
civil actions, C59
required of corporations in suits, may be made
by some officer thereof, 003
to truth of facts to be made by petitioner for
leave to appear and dispute validity of
prior attachments, 031
of witnesses out of state, when not taken accord-
ing to the statute, may be admitted,
or rejected at discretion of court, . . 075
not to be admitted in such case, unless adverse
party had notice, if possible to be
given, 675
■when not to be received on trials under acts re-
specting fugitives from service, . 736, 737
of entry for breach of condition of mortgage,
and to foreclose same, 712
of-intention to foreclose mortgages of personal
j)roperty, 767
AFFIDAVIT — continued.
of sales under mortgages, with powers of sale, 71G
of notice of appointment to be made by execu-
tors and administrators, 491
of notice of sales of real estate by executors, ad-
ministrators, and guardians, 511
of notice of sale of real estate for taxes by col-
lector, 84
AFFIRMATION".
may be made, Instead of taking oath, by Qua-
kers and others having conscientious
scruples, r,o, rri
included In " oath " where by law it may be
substituted therefor, 51
may be made by jurors, 841
AFFRAYERS.
before a court may be ordered without process to
recognize to keep the peace, . . . 828, 829
may be committed if they fail to recognize, . 828, 829
arrested without warrant by order of justice
of the peace, G08
AFRICAN METHODIST EPISCOPAL
CHURCH.
trustees of society of, may organize and become
corporation, 204, 205
powers of, 205
limitation of annual income of such corporation, 205
pganization of corporation, 205
copy of record of, to be leftwith town clerk, 205
AGED, Infirm, &c., persons, exempted from taxa-
tion, 75
AGENTS.
of foreign insurance companies, to give bond,
&c., 331
for sale of spirituous and iutoxicafing liquors, 440, 441
of absent defendants, when writs may be served
on, 023
to be appointed for absent heirs or devisees, in
proceedings for partition of real es-
tate by probate courts, 703
embezzlement l>y, how punished, 800
AGENTS AND FACTORS. {See Factors.) . 204
AGREEMENT.
by parties, or their attorneys, in civil actions,
may be made respecting amendments,
enlargiug time, filing papers, &c., - . 660
by attorneys concerning suits and proceedings
not valid, unless in writing, 000
for continuing a case, may be made by parties,
but its place on docket may be regulat-
ed by general or special order of court, 000
of parties respecting amendments and filing pa-
pers equivalent to order of court, . . 6(10
such agreements not to postpone trial, . . . 601
certain, not valid, unless in writing, 527
AGRICULTURAL AND HORTICULTU-
RAL SOCIETIES.
AaRICULTURAL SOCIETIES.
property of, exempted from taxation, 74
when entitled to receive money from state
treasm-y, 376
claiming bounty to file certificate with secretary
of board of agriculture, 370
amount of bounty to be paid, to be ascertained
by certificate last filed, 376
terms on which they are to receive money, . 376, 377
returns by, to secretary of board of agriculture,
how and when to bo made to entitle to
state bounty, 377
contents of such returns, . . . • 377
passages in returns, worthy of public notice, to
be marked, 377
INDEX.
923
AQBICUXTURAL, ^c, SOCIETIES— con/i/iwerf.
bounty forfeited by no^loct to comply with pro-
vjsious of law, 377
receiving bounty to offer premiums for agricul-
tural experiments, 377
to offer encouragement, &c., for raising trees
for ship timber, 377
surplus money of, to be put at interest, 377
fore<foing provisions not to apply to societies
incorporated for territory less than a
county, except by special enactment, . 377
may fix bounds for pens, yards, &c., witliin
which spectators, &c., shall not enter
under a penalty, 377
such bounds not to include, highways, &c., nor
private estates without the owner's
consent, 377, 398
may appoint marshals, with power of con-
stables, 378
term of marshals' office, 378
premium for field crop not to be awarded with-
out sworn evidence of weight, .... 378
Annual exhibitions, times of holding, . . . 378
Agricultural, Horticultural, and Ornamental
Tree Assoclvtioxs.
ten or more persona may become a corporation
for the purpose of encouraging agri-
culture, horticulture, &c., . . . ^ . . 378
may hold real and personal estate, to a limited
amount, 378
how organized, and powers and privileges of, . 37S
Farmers' Clubs.
properly organized and holding regular meet-
iugs, upon application to secretjtry of
state board of agriculture, to receive
copies of report of board, &c., . . 378, 379
receiving such benetits, to make returns an-
nually in October to said secretary, . 379
AGRICITLTITRE, BOARD OF.
hnw constituted, HI
tenure of office of members, 141, 142
vacancies, how filled, 141, 142
to meet at state house at least once each year, . 142
to investigate subjects relating to agriculture, . 142
to take donations, &c., for promoting interests
of husbandry, &c., 142
may proscribe forms for and regulate returns by
agricultural societies, 142
compensation allowed only for expenses, . . . . 142
SecretEiry of, how appointed, 142
salary of, 142
clerk of, and salary, 142
to publish annual abstracts of returns of
agricultural societies, 142
may appoint agents to visit towns, ttc, . . 142
such agents to report to secretary, 142
Annual report of, 142
when to be laid before legislature, ... 52, 142
when may be put iu type, 53
number to be printed, and distribution of, . 53
AIH.
(Msement of, not to be acquired by use, .... 472
ALARMS OF FIRE.
pfn;ilty for giving falsely, 81G
for stealing property removed because of, . . 797
ALDERMEN.
gt.ncnil i)rovisions respecting, IGO, 117
duty of in suppressing riots 815
exempt from liability to watch, &c., 174
{See Major and Aldermen.)
ALE.
to be considered intoxicating liquor, 442
ALE WIVES.
regulations respecting, 203,204
ALIEN PASSENGERS.
board of commissioners of, and of state paupers,
how constituted, 39G
commissioner appointed by governor, to hold
office for three years, 390
Commissioners may appoint person to visit
state almshouses and report, 39()
to appoint agents to procure information re-
specting, arriving iu this state, .... 397
ofiiccrs of railroads, &c., to furnish agents
certain information concerning, under
penalty, 397
to give direction concerning pauper re-
turns, 397
to prescribe forms of returns for superinten-
dents of state almshouses, 397
to prescribe and furnish forms of certificates
to towns, for sending paupers to state
almshouses, 397
to have powers of overseers of poor in rela-
tion to state paupers in hospitals, . , . 397
may transfer inmates of state almshouses,
Ac, 397
may commute bonds taken by superinten-
dents of alien passengers, 397
may require pauper accounts to be substan-
tiated by affidavits, &c., 403
to make annual report to governor and coun-
cil, 397
may allow towns to send sick paupers to
hospital at Rainsford Island, 400
may complain in bastardy cases, when wo-
mim refuses, Ac, 404
compensation of, and of their agents, . . . 397
Superintendents of, how appointed, quiUi-
fied, and paid, 398
duties of, 39f^
when to be performed by overseers of
poor, 40<i
to account quarterly with state treasurer, 3(f0, 400
certain passengers not to be landed until
bond is given to, 398
may permit sick, &c., passengers to land
without bond, CG9
may receive head money in lieu of bond. . . 398
such money to be refunded in certain cases, 399
may take bond for payment of such money, 399
such bond, how cancelled, 399
penalty on master, &c., for refusing to give
bond, when landing sick passenger, if
passenger becomes a charge upon
town, &c., 399
party to whom head money is repaid, &c., liable
if passenger returns, 399
provisions not to apply to seamen sent from for-
eign places by U. S. consuls, 31*9
nor to foreign consuls, &c., nor persons from
wrecked vessels, 399
penalty on master, »fcc., of vessel for landing,
except at port of destination, with
intent to avoid these provisions, . . . 39*.!
for landing, contrary to these provisions, . 39?i
for landing convicts from other states, . . . 39'.'
persons bringing foreigners into tlie state, liable
for their support, in certain cases, . . 40t»
arriving sick, to remain at Kainsford Island
Hospital, 40(1
ALIENATION of real estate. {See Deed.)
924
INDEX.
AIiLEGATIOig'S. (See Pleadings.)
AlilENS.
may take, hold, tr.iupmit, &c., real estate, . . . 473
titles to real estate derived from, eoufirmed, . , 473
when may bo admitted as attorneys at law, . . 615
how natm*altzed by supreme and superior courts, 618
not to be naturalized by other courts, 018
actions by, within what time may be brought
in certain cases, 778
AIiIMOITS".
may be decreed to wife, in certain cases, . . 535, 530
during pendency of libel for divorce, .... 533
decrees concerning, may be enforced, revised,
and altered by the court, 530
or share of estate iu the nature of, to husband in
certain cases, 530
ALLEGIAIfl'CE.
oath of, 29, 33
ALLOWAI^CE.
to widow and cliildren of deceased persons, 484, 489
when to be paid, notwithstanding appeal, on
giving bond, 484
to wife during pendency of libel for divorce, , , 533
to insolvent debtors out of their estate, . . . 594, 597
to prosecutors after couviction of burglary, lar-
ceny, &c., 799
when offender has forfeited his rceognlzanoe, . 799
ALMSHOUSES AIsTD "WOBiOIOUSES.
may bo pro\idod by cities and towns, . . . 170, 171
persons who may be mjuntained there, . . , 170, 171
not to be erected by towns in other idaces with-
out consent of such places, 171
Directors of, may be chosen, 171
when not chosen, overseers of poor to act, . 171
may appoint masters and assistants to su-
perintend, 171
meetings of, to be held monthly, 171
may make rules for government, subject to
approval of town, &c., 171
register of inmates, &c., to be kept by master, 172
to be submitted to overseers of poor upon
their i-cquest, 172
controversies between masters and over-
seers of poor to be determined by
directors, 172
profits and earnings, how to be disposed of, 172
Persons cormnitted to, how may be dis-
charged, * . 172
to be kept employed, ^ . 172
if idle, stubborn, &c., may be punished, . . 172
persons nut having settlement iu state may
be committed to, &c., 172
inmates witli infectious diseases may be re-
moved to hospitals, &C., by board of
health, 191
masters, &c., to give notice to overseers of
poor of death of inmates, 195
May be discontinued, 173
Powers, &G., granted to places by special acts,
not affofted, 173
JOIXT 15Y SEVERAL TO-WXS.
how may be provided, 171
Directors of, to be joint board, chosen by the
several places, 171
each place to choose three, unless, &c., . . . 171
vacancies, Ikiw filled, 171
if place neglects to choose, those of other
places to have charge, 171
meetings of, to be held quarterly, 171
may be called at other times by directors of
either place interested, 171
ALMSHOUSES, Slc — continued.
may choose moderator and clerk,
clerk of, to be sworn, and record votes, &c.,
may make by-law8,&c.,if one half are present,
may appoint master, &c., and fix compensa-
tion, ,
may act on other matters if oue third are
I)resent, subject, &c.,
expenses, compensation, and rejiairs, how to be
paid, by places interested,
remedy against places neglecting to pay propor-
tion,
places not to send more than their proportion
of persons,
places refusing to pay proportion of expenses,
deprived of right to send,
each place may furnish means of work, for com-
mittee, by its authority,
duties of master, when materials thus furnished,
ALMSHOUSES, STATE.
Inspectors of, appointment, duty, and salary
of, 400,
to audit superintendents* accounts, and make
reports
to have powers of overseers of poor,&c.,401,
may send inmates becoming' insime to state
lunatic hospitals,
to make certain iuvoutorios aunually, . . .
Superintendents of, appointment, ssdary and
bond of,
to make returns, &c., concerning births,
&c., 109,
to receive paupers sent to them with proper
certificate, &c.,
may contract for employment of inmates of,
accounts of, to be audited by inspectors, . .
to notify towns when paupers can be re-
ceived,
may complain iu bastardy case when woman
refuses to make comphiiut,
to\vns, &c., may send state paupers to,
not to send lunatics to, who are dangerously
mad,
Idiots, having no known settlement, may be
sent to,
fees of officers, &c., iu such cases,
discharged couvicts to be removed to iu certain
cases, 401,
when settlement of such pauper is discovered,
inspectors may remove him thereto, .
inmates of, may be transferred by alien com-
missioners,
to be distributed in ease either is full, . . .
penalty on, for leaving without consent, and
found begging,
if all are full, towns to take charge of paupers
at expense of state,
to be visited by persons appointed by alien com-
missioners, &c.,
inmates of, having a settlement, to be supported
at expense of place liable, .... 402,
accounts for maintenance of, and support of in-
mates, how paid, &e.,
female inmates of, pregnant with bastard child,
complaint where made,
AMENDMENT.
In civil suits, may be made at any time before
final judgment,
of answers and pleas in abatement, ....
introducing new parties, discontinuing as to
parties, changing form of action, &c.,
iu any matter of form or substance to enable
171
171
171
171
171
172
172
172
172
172
172
403
402
401
170
401
402
403
404
401
401
401
402
402
397
402
403
402
396
403
403
4I>1
ri5s
INDEX.
925
AMENDMENT — contimted.
partios to sustain their case for cause
intondc'd 658
when deemed for same cause of action and ef-
fect of adjudication thereof, 602
of writs sued out against defendant by fictitious
name, 622
introduciug- new dufendaut when answer in
abatement is tiled, may be made before
issue joined, -657, C58
when made in consequence of plea in abatement
defendant to answer or plead to merits, 055
after demurrer filed, 050
in actious concerning lauds in different coun-
ties, BO as to include whole tract in
one action, 020, 021
after judgment, to correct defects and imper-
fet-tious of form in record, how made, 058
orders allowing, may before trial be made by
court, or justice in term time or vaca-
tion in any county, GOO
may be made by consent of parties, or by their
attorneys in writing, 060
rules prescribing terms on which they may be
allowed, to be made by courts, .... 000
court may impose costs as condition of, , . , . 782
of pleadings in petitions to enforce liens, . . 763,709
Of constitution, bow made, 8, 33
ANATOMICAL SCIENCE.
Iiro\isi.»ns for advancement of, 195
ANATOMY.
wIkii proli'SHors of to have body of person
exi'i-ntL'fi for dissi-L'tioii, 791
ANCIENT AND HONORABLE ARTIL-
LEHY COMPANY.
niiniliers of exiTiipt from serving as jurors, . . OSO
ANIMALS. (5cc Bmsts.)
cruelly beating and torturing, how punished, . . 822
live, if attached, how may be disposed of, . 028, 029
noxious, towns may raise money for destruc-
tion of, 158
unlawfully taking :ind driving, &c., 801
ANNUAL MEETING.
when to be held for town business, 159
for state elections, 36
when applied to towns, how construed, .... 51
ANNUITY.
given by will, when payable, 403
from what time to commence, &c., 403
apportionment of, in certain cases, 403
* suits for, not to be brought against executor
within one year after giving bond, . . 403
action for, against executors, &c.,not limited, . 403
ANS'WER.
In equity cases, defence may be made by, . . 559
to be supported by oath imless waived, . . , 559
In abatement, may be made in real, personal,
or mixed actions, 055
not to defeat action if defect can be, and is,
amended on leave, 658
that others should be joined as defendants,
plaintiff may ameud by joining other
defendants, 657
when overruled on demurrer, or an amend-
ment is made in consequence, defend-
ant to plead or answer to merits, 655, 656
may be amended, or defendant allowed to an-
swer over, for good cause shown, and
not otherwise, 058
To merits of action, by defendant, may con-
tain demurrer to raise issue in law in certain
cases, 655
78
ANSWER — roniin ued,
attorney to certify probable grounds, &c., in
such case, 655
substituted in all but real and mixed actions,
lor special pleas in bar and general
issues, which are abolished, 050
maybe nnide jointly by two or more defend-
ants making same defence, 650
may contiun difl'erent consistent defences,
separately stated, 050
to deny clearly, A:c., or declare defendant's
ignorance of every substantive fact, . 656
to the common counts, and count annexed,
every item to be answered specifically, 650
to state grounds of denial, and specify wheth-
er all or part, and what part of jmy
sum, &c., in certain cases, is denied, . 656
making denial concerning time, sum, quan-
tity, or plaee, to state what time, sum,
&c., is denied and what admitted, . . Ojo
may allege facts or title alternately, .fcc., . . 057
to set out clearly each substantive fact in-
tended to be relied on in avoidance of
phuutiff's action, C5G
setting up statute of limitjition or of frauds,
or otlier legal bar, need not deny facts
set out in plidntiff's declaration, . . . 650
to set out copies, or effect, of written instru-
ments relied on, 056
need not state evidence, or disclose means of
proof, 657
to set fortli breaches of bonds and condi-
tionid obligations, and aver perform-
ance of conditions precedent, .... 650
may allege faets occurring after commence-
ment of suit, 657
justifying in action for slander and libel, not
proof of malice, 6C2
to one matter, not evidence in another in
same answer, 602
required of corporations, by whom to be
made, g03
when made to merits, defects in writ or pro-
cess not to affeet jurisdiction of court, 062
when required to be made by absent defend-
ants, 046
may be amended, 658
when to be made by absent defendants who
come in under notice, 646
how made by respondent in complaints for
flowing land, 7.55
supplemental may be allowed by court, . . 657
order allowing may be made by judge, in
or out of court, in any county, .... 600
in set-off., when and how may be made, . 070, 071
in case of tendtfy how made, 071
forms of, 607-069
After ans'wer, no Airther pleadings required,
exeept by order of court, 050
but plaintiff may demur to answer or reply
if he pleases, 650
new matter introduced by answer, deemed
denied by phiintiff, or court may re-
quire him to reply, 650
trial not to be delayed for want of reply, ex-
cept by order of court, 001
(See Pleading,)
To interrogatories, filed by parties in civil
suits, TiGO
(See Interrogatories.)
By trustee, in trustee process, 722,729
( ^ee Trustee Process.)
926
INDEX.
APOTHECAKY.
peualty for selling deadly poisons and not mak-
ing record of sale, unless by physi-
cian's prescription, 823
when may sell intoxicating liquors, 442
APPEAL.
In equity cases in supreme court, from single
judge to full court, 5G0
may bo had from any final decree of single
judge if claimed within tliirty days, . 5G0
how claimed, entered, heard, and deter-
mined, 5(J0, 5G1
omitted, by accident, &c., to be claimed in
time, may, on petition to court within
a year, be allowed on terms, 5G0
after an appeal is taken, single judge may
make certain orders for appointment
of receivers, &c., 500
from iuterlocutory decree of a single judge,
may be had to full court, 500
such appeal not to transfer the case but only
the question, nor susi^eud execution
of decree, 650
from final decree, court may revise interloc-
utory decrees not appealed from,. . , 050
to be heard on the evidence taken before
single judge, and provisions for taking
such evidence, 561
but court may in certain cases allow further
evidence to be taken, 561
From superior covu-t to supreme court, ... 563
may be had in all cases, civil or criminal,
upon judgment founded upon law ap-
parent on record, except upon answers
and pleas in abatement, and certain
motions to dismiss, 563
on decisions upon demurrer in certain cases, 061
by third parties in certain cases, on adjudi-
cation that an amendment is for same
cause of action, 002, 663
question only to be entered in supreme court, 567
execution not to issue on judgment appealed
from except in certain cases, 563
to be heard by full court, 553
issue of law joined before, not to be waived
after entry in supreme court, &c., . . 563
but pleadings may be withdrawn or
amended on leave and case remanded, 503
eecurity, &c., not discharged when appeal is
entered in supreme court until after
final judgment, 503
copies of papers in, how prepared, trans-
mitted, and paid for, 563, 567
such copies to be transmitted within twenty
days after adjournment of court for
the term, and entered on law docket
of supreme court, 507
to be entered at next term of supreme court,
in counties where law terms are es-
tablished, 554
or by consent of parties in court for com-
monwealth, 567
in other counties, to be entered in court for
commonwealth, 557
in criminal cases, to be entered on separate
docket, 557
if not entered by appellant, adverse party
may on complaint liave judgment, &c.,
affirmed, 554, 555
if by mistake, &c., appeal or complaint is not
duly entered, how may, on leave, be
entered afterwards, 555
APF'EAJj~co7}timied.
such entry on leave not to revive any se-
curity discharged, 555
court may affirm former judgment with ad-
ditional damages, reverse the same,
or make other order, &c., 554
in proceedings for partition of real estate,
upon matters of law, Ac, 701
in complaints for flowage, as in other cases, 755
in proceedings to enforce liens, 703
in libels for forfeited goods, 773
in cases uf audita querela, 742
From probate courts to supreme court,
415, 422, 548, 575, 570
may be taken by any person aggrieved by
decree, &c., of probate court, 575
to be claimed and notice given at probate
office within tliirty days, 575
to be entered at rule day of supreme court
next after fifty days, 575
appellant to file in probate office reasons for
appeal, and serve copy on adverse
party within fourteen days before
time of entry, 575
omitted, how may be entered on petition and
leave granted, 575
petition for entry in such case must be filed
within one year, and adverse party
notified, 575
unless petitioner was out of the country,
in which case he may file his petition
within three years after his return, , . 575
to be entered on docket with cases in equity,
as also petitions for appeal, . . . 560, 575
after being taken, proceedings upon decree,
&c., to cease until determination or
waiver thereof, 575
except in case of certain allowances to
widow and children, when bond is
given, 4S4
may be waived before entry, 575
may be affirmed or reversed in whole or in
part, or other order made and case re-
mitted, 575, 576
if not entered, may be affirmed upon com-
plaint of person interested, 576
questions of fact on, may be tried by jury, . 576
From courts of insolvency, to superior
court, 585,592
may be taken by assignee from allowance,
and by creditor from disallowance of
claim, 585
to be claimed, and notice given to register
and to creditor or assignee within ten
days, 585
to be entered in next term of superior court
after fourteen days from time of claim-
ing same, 585
proceedings, judgment and costs on such ap-
peal, 585
from question of granting discharge, may be
taken by assignee or debtor, 5U2
notice of to be given to register within ten
days, 592
how entered in superior court, heard and
determined, 592
may be waived in writing before entry, in
either case, and proceedings to be same
as if no appeal had been taken, . . 575, 592
From police courts and justices of the
peace, to superior court,
447, 562, 572, 607, 009, 010, 828, 843
INDEX.
927
APPEAL — continued.
jurisdiction of, by superior court, 563
from police courts to be same as from jus-
tices of the pence, 572
In civil casesy 607
may be had to next term of superior court,
by any party aggrieved by judgment
of justice, except upon verdict of
jury, G07
by third parties in certain cases upon adju-
dication that an amendment is for same
cause of action, Gt>;i, 003
to be ohiimed within twenty-four hours, . . 007
when taken, no execution to be issued by
justice, but case to be determined in
court appealed to, as if it had been
commenced there, 007
appellant to recognize to prosecute his ap-
peal, &e., 007
if defendant in process of forcible entry and
detainer appeals, he must recognize to
pay rent, &c., 708
appellant to produce to court appealed to
copy of record, papers, &e., 007
to be tried iu superior court, on issue joined
before justice, unless court orders de-
fendant to plead, 007
if not entered, or copies, &c., are not pro-
duced, former judgment may, on com-
plaint of adverse party, be affirmed,
•A'C, GO?
when appeal, or complaint for not entering
an appeal, is by mistake, A-c, not duly
entered, how may bo entered after-
wards on leave, 563
6uch entry on leave not to revive security
dischar;;otl, 563
to be tried at civil terms in counties where
there are separate terms of superior
court for civil and criminal business, . 504
costs to be only quarter sum of debt if
plaintiff appeals and does not recover
more than twenty dollars, "81
in proceedings to enforce liens, . . . 703, 770
In crimi/tal casesj 572, 600, 610, 828, 843
from magistrates, requiring sureties of the
peace, 828, 829
from conviction before justices of the peace
or police courts, 843
appellant to be committed until he recog-
nizes, 843
condition of recognizance, 843
witnesses to be recognized, 843
duty of justice, &c., as to the papers in the
case, 843
to make and transmit copies, and the re-
cognizance, Srl3
fees therefor to be paid from county treas-
ury, &13
appellant not to advance fees on claiming or
prosecuting his appeal, 843
on sentence may be made to pay all or part, 843
if appellant fails to enter and prosecute ap-
peal, he may be defaulted on his recog-
nizance, 843
Bentence may be awarded, as on conviction, 843
may be brought in by process, to receive
sentence, 843
in suits on forfeited recognizances, if penal-
ty is forfeited, or paid without a suit,
forfeiture may be paid to proper per-
son by order of court, 843
APPEAL — confiiuied.
Prom commissioners on insolvent es-
tates of deceased persons, 4'.)r, 4'JS, 562
may be had to sujjrerae or superior court ac-
cording to amount iu controversy, 4U7, 49S
how claimed, entered, and proceeded with, 497,498
may be waived before entry, and claim sub-
mitted to arbitration, 493
Prom magistrates renrlering judgment on
charges of fraud alleged against poor
debtors, 038, 039
may be had to superior court by debtor or
creditor, in like manner as from a jus-
tice in civil cases, 038, 039
appellant to recognize, 039
trial to be had by jury, imless the court de-
termines it by consent of parties with-
out jury, 039
Miscellaneous.
from order of board of health to supreme,
court relative to offensive trades, . . . 194
closing tombs, &c., i%
from commissioners of wrecks, to superior
court, concerning compensation, Ac, 438
from judges and commissioners, on order
to commit to reform and industrial
schools, 4:5, 432
from taxation of costs, how to be heard and
determined, 732
when appellee may have costs before ap-
peal is settled, 732
costs of appeal from taxation of costs, 783, 783
in cases of seizing, Ac, forfeited goods, 773, 774
in proceedings for improvement of low
lands, Ac, 732, 753
APPEAKANCE.
of defendant, in civil actions, to make affida-
vit, GjS, 059
of absent defendant, when required after no-
tice oiG
of trustees in trustee process, when and how to
be made, 7^'_', 729
APPLICATIONS TO LEGISLATUKE.
nntifo of, wlion to l)t^ ^ivon, Ac, 47,43
APPORTIONMENT OP SENATORS
AND REPRESENTATIVES, 02-04
APPRAISERS.
not disqualified on account of being inhabitant
of town, Ac, interested, 018
of goods seized, and libelled, or forfeited, . . , 774
of damages in case of cattle impounded, .... isn
of stray beasts, and lost goods, how appointed
and sworn, 425
of estates of persons deceased, appointment and
duty of, 4S8, 489
to be sworn, 4,^9
form of justice's order to, 4S9
of trust property, ..;... 50I
of estates of wards, 545
when officer sells perishable property, Ac, at-
tached, G29
when property is attached on suit against part
owner, G30
of estate of homestead, to be set off to insol-
vent debtor, or in case of levy of exe-
cution, 526
of estates taken on execution 517
ft'c^ "f, 780, 787
APPRENTICES.
settlement of, how acquired, 391
to be bound by indentures of two parts,
&c., G41I, 550
928
INDEX.
APPRENTICES — con^/HHfrf.
biudiug of, by whom, aud for what time, .... 549
canuot be bound by mother or her husband upon .
subsequent marriage, 549
not bound, after master's death, 551
consent of, to be expressed in indentures, if
above the a';;e of fourteen years when
bound by parent or guardian, .... 549
may be bound to mistresses as well as mas-
ters, 551
indentures to be kept for use of, 550
miuor children of poor parents, how bound
by overseers of the poor, 549
how to be taught, &c., 549
to have what is paid, &c., for their services, &c.,
by master, 550
to have what is recovered of master, for breach
of indenture, 550
treatment of, to be inquired into by parents,
&c., 550
to be defended, and protected from cruelty, neg-
lect, &c., 550
complaint for misconduct, &c., of master or ser-
vant may be filed in superior court, . . 550
notice of, to be given to adverse party, &c., 550
may be discharged Irom apprenticeship, . . 550, 551
when discharged may be bound out anew, . 550, 551
costs in such case, how awarded and recov-
ered; 550
master of, liable for breach of indenture, . , . . 550
actions against, by whom to be brought, . . 550
proceedings in, 550
limitation of, 551
may be approhcnded, »&c., if they abscond from
master, 551
and returned to master, or committed to jail,
&c., 551
costs, how paid in such cases, 551
how bound by alien commissioners, 397
by inspectors of state almshouses, 401
inmates of industrial school, how bound, . . . 415
of reform school, how bound, 419
certain inmates of jails, houses of correction,
and workhouses, how bound, .... 859
APPROPRIATIONS. (See Finance.) . . 139, 141
AQUEDUCTS,
penalty for injuring or corruptiug water in, 375, 823
water from, may be used for extinguishing
fires, 375, 370
Proprietors of, how to become a body corpo-
rate, 374
may determine their corporate name, . . . . 374
organized under chapter forty of Kcvised
Statutes, subject to provisions of chap-
ter sixty-five, 374
may agree how to call future meetings, &c., 375
may choose a clerk, who shall be sworn, di-
rectors and other oflTiccrs, 375
president of, to be one of the directors, . . 375
dork of, to record by-laws, votes, &c., . . . 375
to record their names, and the shares of
each, 375
the transfer of shares, 375
shares of to be personal property, and how
transferable, 375
may be assessed, and sold to pay assess-
ments, 375
sale of, how advertised, &c., in such case, 375
surplus money arising from sale to be
paid to owner, &c., 375
may hold real estate to a limited amount, . 375
may dig up streets, and with consent of may-
AQUEDUCTS — continued.
or and aldermen or selectmen, to
place or repair pipes, &c., 375
upon dissolution of company, corporators to
be tenants in common of real estate, 375
contracts of, to remain in force, 375
last shareholders, to be liable, &c., six years
in cor])orate capacity for perlormanoe
of contracts, 375
how far personally liable, 375
applications for damages sustained by op-
erations of, to be made within three
years, Arc, 370
damages recovered against, may be collected
hv warrant of distress, itc, 37G
ABBITRATiON AND A'WARD.
Arbitration, by agreement, before a justice of
the peace, 749
fees of justice for making out the agreement, 750
subjects of a personal action at law, or of a
suit in equity, may be submitted, . . 749
parties to, shall sign and acknowledge agree-
ment of. 749
form of such agreement, and of justice's cer-
tificate, 749
the demand submitted, if specific, and to ex-
clusion of others, shall be stated and
annexed to agrecmeut, 749
submission of all demands, what to include, 749
not to be revoked, unless by agreen^nt, . . 749
when arbitrators may determine ex parte, , 749
all the arbitrators shall meet ; a majority
may decide, unless restrained by the
submission, 749
arbitrators may make award concerning
costs, &c., 750, 7b2
compensation of, subject to reduction by
court, 750
time of making, &c., award may be agreed
upon by i)arties, 749
parties to attend courts without notice, as if
action were pending, 750
of claims allowed or disallowed by commis-
sioners of insolvency on estates of de-
ceased persons after an appeal claimed,
how had, 498
of claims, by and against estates of insolvent
debtors, may be had by assignee, un-
der direction of the judge, 588
Award to be made and reported within time
agreed on by parties, 749
after such time, inopci*ative, unless recom-
mitted by court, 749
to be delivered to court, or sent to clerk, un-
der seal, 749, 750
may be returned at any terra, &c., of court
within the time limited in submission, 750
subject to same disposition by court, as if
made by referees under rule, &c., . . . 750
judgment and execution on, as on award of
referees under rule, &c., 750
notice of, may be given by court, before act-
ing thereon, 750
may be accepted, recommitted, or rejected
by court, 750
fees in court the same as on awards made
under rule, &c, 750
no appeal from judgment, &c., on awai'd, but
writ of error may be brought, .... 750
of claims on appeal from decision of commis-
sioners of insolvency on estates of de-
ceased persons, 498
INDEX.
929
AHEITBATIOM", &c. — continued.
(-1 chiims of executors, &c., against estate of
the deceased, 494
of commissioucrs of wrecks, &c., for com-
pensation, 428, 429
of controversies respecting- contracts made
by warden of state prison, .... 873,874
ARBITRATORS.
witnesses in cases ponding before, how siun-
moned, 672
may administer oaths to persons otTcred as wit-
nesses before them, G73
penalties for bribing, &c., and for acceptance of
bribe by, ftJ^
fees of, ■ 750
ARMORIES.
provisions concerning, lOt
ARMS.
ri^Oit of the people to keep and bear, for the
common defence, 9, 16
exempt from distress for taxes, S2
attachment and levy for debt, 102, 688
Firearms, how to be proved, 2G0
how to be stamped, 200, 201
provers of, how appointed, 2G0
to be sworn, and duties of, . . . • . . . . 2G0
fees for proving, 2G1
penalty for buying or selUng not proved, . 261
not to extend to arms manufactured by
United States, &c., 261
for forging or altering stamps, 201
ARRAIGNMENT.
if pri.>:i(mi_r refuses to plead or answer, or does
not confess, court to order plea of not
guilty to be entered, 840
prisoner need not be asked how he will be tried, 840
In capital cases, may be by single judge of
supreme court, 553
if prisoner pleads guilty, single judge may
award sentence, 553
if lie does not plead guilty, single judge to
assign counsel, imd take measures for
trial before full court, 553, 554
ARREST.
niLiubers of congress privileged from, 3
representatives, how far privileged from, ... 22
in prosecutions before courts martial, 117
In civil cases, original writ for arrest of body,
how framed, 621
to be served by oiBcer, as directed by plain-
tiff, 632
ofBccr not liable for not arresting defendant,
unless specially directed, 634
on mesne process and execution, when and
how may be made, 033, 634
of attorneys at law, in actions for money col-
lected, how made, 033, 634
not to be made of person performing mili-
tary duty, 99
not to bo made of defendant in actions for
slander or libel, 034
not to be made after sunset, unless specially
authorized by magistrate, 635
women not to be arrested, except for tort, . 034
upon executions issued for costs only, may
be made without affidavit, and pro-
ceedings thereon, 034
may be made, as in other cases, on writs, to
bring in new defendants, 658
on writ taken out by sureties on adminis-
tration bond against principal, .... 506
sheriff, exempt from, 151
78. 117
ARREST — contitiued.
insolvent debtors discharged, how exempt,
and discharged from, 591
punishment for arresting a dead body, . . . 821
defendant when arrested, may give bail, 635,
637, 642
persons arrested, when to be carried before
magistrate, duty of officer, and pro-
ceedings thereon, 035
(See Poor Debtors.)
Of judfjmcnt., not to be made for any cause
existing before verdict, 062
In criminal cases, officer arresting to state
reason to person arrested, 789
to exhibit precept, on request, 789
penalty for false answers, or refusal to show
precept, 789
for arrest on pretended process, 790
on warrant, not allowed, unless person spe-
cially designated, &c., 15
of persons indicted capitally, to be ordered
forthwith by the court, 839
against whom a warrant has issued, and
who have left the county, how may
be made, 831
if charge is for capitil or state prison of-
fences, officer to carry person to
county whence warrant issued, . . . . 832
may be made >vithout warrant in certain
cases,. . . . 008,814,815,810,821,828,829
process for, by whom may bo issued, . . . 831
punishment of officers for wilfully refusing
to arrest on lawful process, . . . S13, 815
person arrested, to be carried before magis-
trate, 8:11, a32
proceedings in such cases, 832, 833
proceedings where person under indictment
is arrested after adjournment of court, S34
ARSENIC.
persons selling mthout written prescription of
a physician, to keep record of sale, . . 823
penalty for neglect, 823
penalty on purchasers giving false names, . . . 823
ARSON.
not a bailable offence, 836
bow punishable. (See Burning.) 796
ARTICLES OP "WAR 121-126
ARTILLERY.
provisions concerning, 94
(See MiHtiu.)
ASHES.
provisions respecting pot and pearl, .... 270,277
ASSAULT.
on a representative for official act, how punish-
able, 22
on a witness summoned before the legislature, . 22
punishment of, with intent to murder, 793
with intent to maim, &c, 793, 79t
with intent to rob, Ac, 793,794
with intent to ravish, 793,794
with dangerous weapon, and intent to rob
or murder, 793, 794
with intent to commit burglary, 794
jurisdiction of police courts and justices of
peace in cases of, 570, 609
ASSAULT AND BATTERY.
actions for damages for, to be brought in two
years, 777
jurisdiction of police courts and justices of peace
in cases of, 570, 609
prosecution for, may be stayed on reparation of
injury and payment of costs, . . . 834,839
930
INDEX.
ASSATTLT, &c, — coniitjned. i
except assault is riotous, or on officer, or
with iuteut to commit n fulony, . 8-'j4, 8-19
civil notions for, barred by such reparation, 8:10, t>40
ASSAYERS.
of metals and ores, may be appointed by gov-
ernor, 274
ASSES.
to be impounded, if found going at large, con-
trary to law, &c., 185
penalty for unlawful driving, 801
ASSEMBLY.
unlawful, riotous, and tumultuous, how sup-
pressed, 815
refusing aid to suppress, 815
officers neglecting to suppress, how pun-
ished, 815
may be dispersed by force, 815
l^roceedings in calling out an armed force, 815,810
penalty for disturb;ince of any lawful, 820
ASSESSORS.
thre;.' ur more to be chosen, by ballot, by to^nis
at annual meeting, KiO, lOl
to be sworn, 101
form of oaths, 71), 103, 201
penalty on, for not taking oath of offiti^, .... 103
if towns neglect to choose, county commission-
ers may appoint, 101
selectmen to act as, when others not specially
chosen, 102
to give notice to inhabitants to bring in lists of
polls and property, 77
Buch list to be under oath, and be received as
true unless, &c., 77
to make liiir cash valuation of all taxable proi>
erty, 77
to make estimate of value of property when list
is not brought in, 78
such estimate to be conclusive, and eutci*ed in
valuation, unless, Ac, 78
to add to tax of parents, &c., price of books fur-
nished by school committee to chil-
dren, 219
duty of, when taxable person designates an-
other place as his residence, 75
in assessment of all taxes, 77
penalty on, for neglect, 77
neglecting to assess taxes, county commissioners
to appoint persons to perform duty, . 77
masters of dwelling bouses, *tc., to give names
of taxable persons to, under penalty, . 77
penalty on, for agreeing with parties to on as-
sessment for limited amount, with
view to a residence for taxation, . . 77. 78
may include state, county, and town taxes, or
any two of them, in one assessment, , 78
to assess upon polls one sixth part of sum to be
raised, provided, »tc., 78
may add five per cent, to tax for convenience of
apportionment, 78
to make list of valuation and assessment thereon,
and deposit in office for public inspec-
tion, 78
contents of such list, 78
to swear to such list, under penalty, 79
form of tax list for collectors, 79
to commit list and warrant to collector, if no
collector, to constable or sheriff, ... 79
contents and form of warraut, 79
to issue new warrant, if original is lost, .... 79
may order taxes to be collected forthwith if
credit is doubtful, 81
ASSESSORS — coH^/^i/.-rf.
to post up rates of discount allowed, 79
may make abatement to party overtaxed, upon
a])pllcation, 79, 224
if application is refused, party may complain to
county commissioners, 79
to furnish certificate of abatements made by
them, 80
to assess persons applying seven days before an
election, 80
to be responsible only for want of integrity in
assessing town, parish, &c., taxes, 80
may reassess all taxes except poll taxes, invalid
by error, &c 80
piay order coUeetioa of taxes, although error in
name of person taxed, 82
to make list of persons liable to enrollment in
niilitiii, annually, in May or June, and
deliver copy to town clerks, 91
to take census in towns, 108
to be sworn, and make return under oath, . . . 168
to deliver return to sheriff or transmit to secre-
tary, lOS
penalties on, for neglect, &c., 108
duties of, in assessing taxes in watch districts, . 175
in fire districts, 181
in school districts, 223, 224
to ascertain, annually, number of children be-
tween five and fifteen years, aud report
to school committee, 226
to assess highway taxes upon order of town,
and deliver lists to surveyors, .... 245
compensation of, 80, 224
Assistant, may be chosen if towns deem expe-
dient, 160
to be sworn, 101, 163
duties of, 163
Of parish,es, to be chosen at annual meeting,
and sworn, 201
form of oaths, 79,103,201
to manage prudential affairs, and have power
of selectmen to call meetings, &c., . . 201
what to insert in warraut for meeting, . , . 201
ASSETS.
Of estates of deceased persons, do not
include goods ordered Iiy judgment iu
replevin, to be returned by executor,
&c., 051
nor goods and damages recovered by execu-
tor, &c., as a mere testator, 051
may be ordered to be retained to pay debts
not become due, 491
received by executor, &c., after two years
from administration taken, render him
again liable to suits by creditors, . 401, 402
may be marshalled by courts, conformably
to Avill of deceased, so far as consist-
ent with rights of creditors, 479
how distributed in case of intestates, . . . 485
when an estate is insolvent, 490-500
Of insolvent debtors, how distributed,
594, 595, 597
ASSIGNEES.
of insolvent debtors, 585, 597
{See Insolvency.)
ASSIGISTMENT,
of the estate of insolvent debtors, and corpora-
tions, 580, 587, 598
(See Insolvency.)
ASSISTANT CLERK.
of the supreme judicial court for the common-
wealth, 012,614
INDEX.
931
ASSISTANT C'LB'RK'- continued.
of the courts iu the counties of Jliddlesex and
WorcoRter, 013
of supreme aud superior court in Suffolk county, 612
of police courts, 509,573
(Si'c Chrks of the CourtSy Police Courts,)
ASSUMPSIT.
a. -tion of I'ontnirt substituted for, 053
ASSISTANT WATCHMEN.
at Stat.' i»Ti>uu, aiipointnu'ut and sahiry of, . 870, S71
ATTACHMENT.
writ of, how framed, issued, and served, .... 021
to he served by attacliment, if the plaintiff
so directs, 631
may he made on ori;::(inaI writs, 624
ou writs Issued to bring in now defendants, 658
in suits in equity, by creditor's bill or writ
of attachment, 559
upon bills for divorce, in certain cases, and
how, 536
on writs of review sued out by original
plaintitr, 748
on writ taken out by sureties on adminis-
tration bond against principal, to
make him co-defendant, 506
not to be made of real estate, on writs return-
able before police coui'ts or justices of
the peace, unless danmges demunded
exceed twenty dollars, 024
when creditor not bound by afljudication that
amendment in action in whieh prior
attachment is made, 00;i
property held by, may be replevied, 7.tl
What Property liable to.
all property which may be taken on execution
liable to, 624
property replevied from officer after an attach-
ment, 624
liability of plaiutilfin replevin and liis sure-
ties in such case if there is judgment
for return, 624
goods replevied iu other cases, when not to be
made, 025
proceeds in hands of officer of property attached
and sold, 024
goods attached by a former officer who has died
or been removed, 624,625
oivner's interest in building on which mechan-
ic's lien is sought to be enforced, , 764, 765
how protected, in case of sale of building, 7ff4, 705
money in hands of officer after sale on another
attachment or levy, 689
franchises of turnpikes, and other corporations,
authorized to take toll, 387
How 5LVDE, Duration and Effect of.
several attachments may be made in any county
on same writ by same or different offi-
cer, 024
not to be made on writ after summons is served, 024
to continue in force, notwithstanding death of
officer, 625
not to be held in original suit to satisfy judg-
ment in review, 748
of land mortgaged, to continue although mort-
gage is paid before levy, 625
to continue iu force thirty days after judgment
for plaintiff, 625
sixty days, if judgment is recovered or the
attachment is made in Nantucket, In
certain cases, 625
ATTACHMENT — contlmied.
how long when levy on is suspended hy
reason of a prior attachment, 690
when, unless dissolved, sufficient cause for in-
stituting proceethngs in insolvency
against debtor, 596
against corporations, 599
if, by accident, not dissolved witliin time al-
lowed, proceedings may be stayed, . . 590
By trustee process, how made, 721
may be made of property in hands of trustee,
after service on defendant ; but writ
must, in such case, be again served on
defendant, 721
on new trustees inserted in writ, or on
same trustee several times, 721
demand to be made within thirty days after
judgment, 724
iBxeniption from, of certain homesteads, to
extent of eight hundred dollars, . 524, 525
of certain personal property, . . . .102,087,088
property of a debtor discharged in insol-
vency, acquired by him after first pub-
lication of notice, 591
of wages of debtor and minor children in
certain cases, 724
Of Real and Leasehold Estates.
of real estate may be made without officer enter-
ing upon or being in view of land, . . 626
of leasehold estate, officer to state iu general
terms the leasehold estate, 626
not valid against subsequent purchaser, or at-
taching creditor, unless writ or copy,
&c., are deposited in clerk's office, . . 026
officer to deposit writ or copy in such ease with
clerk, and receive fees therefor, . . . 626
clerk to note time of receiving same, and make a
record thereof, 626
clerk's fee for record to be taxed by plaintiff in
his bill of cost, 626
if writ or copy is so deposited within three
days, the attachment takes effect when
made, otherwise when writ or copy is
deposited, 626
of real estate fraudulently conveyed, or paid for
directly or indirectly and retained by
vendor, or conveyed to a third person, 626
clerk to enter with record of officer's return,
the name also of the person in whom
such record title stands, 626,627
of lauds mortgaged to euutinue, although mort-
gage is paid before levy, 625
of lands held in common, to remain on part as-
signed to defendant on partition, . . . 7(Q
Of Goods which cannot be removed.
of personal estate, which by reason of bulk can-
not be immediately removed, copy of
writ to be deposited in the office of the
city or town clerk, 627
clerk to receive and lile copies, and make
record thereof, and receive fee there-
for, 627
officer making a subsequent attachment of same
property to give notice to the officer
who makes sale under first attach-
ment, 689
Of Shares in Corporations.
may be made by leaving copy with some officer
thereof, C27
932
INDEX.
ATT^ A (TRMF.TJT — continued,
such attachmcQt to hold shares, and all subse-
quent (UvitlendB, 627
officer having writ against a stockholder may-
have a certificate from recording offi-
cer of corporation of number of shares
held by such stockholder, 027
officer making a subsequent attachment of same
property to give notice to the officer
who makes sale under first attach-
ment, 089
Of Personal Property mortgaged or fledged.
of property mortgaged, pledged, or subject to
any lien, how made, 027
attaching creditor in sucli case to pay mortgage,
or other claim, within ten days after
same is demanded, 627
claimant of property in malving demand shall
state in writing exact amount due,
and if it is not paid in ten days, attach-
ment to be thssolved, 027
if he demands and receives more than is
due, creditor may recover excess with
twelve per cent, interest, 028
when such property so attached is redeemed by
creditor, and sold on mesne process or
execution, proceeds to be first ap-
plied to pay amount paid by creditor
on mortgage or othur claim, 028
plaintiff, after having so redeemed property, if
he does not recover judgment, may
still hold the property until debtor
repays h.ini, 028
property subject to mortgage, and in possession
of mortgagor, may be attached, and
mortgagee summoned as trustee to
answer interrogatories, 628
if mortgage is proved to be bona fide, court may
order attaching creditor to pay amount
due to the mortgagee, 628
if attaching creditor denies validity of mortgage,
an issue may be framed and tried by
jury,
628
028
when creditor has pjiid amount as ordered by
court, he may retiiin amount thereof
out of proceeds of property sold, . . .
if in such case plaintiff does not recover judg-
ment, he may hold the property until
debtor has repaid sum so paid by Iiim, 628
Sale of Personal Property attached.
by consent of debtor and all attaching creditors,
personal property attached may be
sold by officer, 028
sale to be conducted in hkc manner as sales on
execution, 024, 688, 689
proceeds in such case to be held by. officer, and
liable to further attachment, 624
balance of, above attachments, to be paid to
defendant, 624
live animals and perishable property attached
may be sold by request of either par-
ty, 028, 020
on such request officer to give notice to parties or
their attorneys, and prepare schedule, 029
notice, bow given to defendant, 629
three appraisers to be appointed, and sworn by
officer or a justice of the peace, . . . . 629
appraisers, how and by whom to be appointed, . 629
to eximiinu the property and appraise it, if
they find it cannot be kept witliout
waste or great expense, ....
ATTACHMENT — continued.
officer thereupon to sell, and hold proceeds as if
sold by consent, unless defendant de-
posits appraised value,
proceeds liable to further attachments,
balance of above attachments to be paid to
defendant,
defendant may take property on depositing ap-
praised value with officer, or giving
him a bond to pay the amount, or sat-
isfy judgment within certain time, . .
bond in such case to be returned with writ, and
suits thereon how brought,
writ in suit on, to be indorsed by all creditors
who join therein,
judgment on, how awarded, and executions, how
issued,
money recovered on such bond to be appropri-
ated to pay expenses of writ thereon,
and residue to attaching creditors, . .
rights of attaching creditors may be determined
by court in equity, and joint or sep-
arate executions awarded, .... 029,
in rendering judgment or issuing execution in
such case, sufficient to be reserved for
prior attaching creditors, although
they did not sue,
creditor not joining in suit on such bond, may,
on motion, become a party to the suit,
or may have scire facias to recover what may be
due him,
action on such bond, and such writ of scire
fiicias, limited to one year,
029
620
624
629
629
029
029
030
630
030
C30
a30
Of Joint Personal Property, attached on
Writ against Part Owner.
owner of i^art not attached may have property
appraised, 630
property after appraisal to be delivered to such
owner upon his giving bond to restore
same, &c., 0.30
share of defendant in such property to become
pledged to other owner who pays ap-
praised value, 030
may be sold by sucli owner if not redecniod, 030
if attachment is dissolved, property to be re-
stored to defendant or officer, .... 630
bond to be returned by officer, and how suits
may be brought thereon, 6.30
How dissolved.
by defendant giving bond to pay amount of
judgment recovered, 6.32
bond in such case to be approved by plaintiff
or a master in chancery, 632
proceedings in such case before master, and
foes therefor, 632
by defendant's death, if administration is taken
out within a year, 625
in such case officer to deliver goods attached
to executor or administrator on de-
mand, on being paid fees, 625
if officer has sold the goods, he is liable only
for proceeds, 625
if officer has paid proceeds to creditor, execu-
tor or administrator may recover same
of creditor, 625,620
in actions by executors or administrators in
either of said cases, officer or defend-
ant not to set off claims against do-
ceased, 620
by final judgment for defendant, 025
INDEX.
933
ATTACHMENT — C071 finned.
by omission to enter appeal on exwptions, not
revived by Bubsequeut entry on peti-
tion, o5j, 5G3
by assignment of debtor's estate by proceedings
in insolvency, 5SG
how attachment may be made to survive in
such case for benefit of creditors, . 5SG, 587
not to be, by bringing^ in new defendant in ac-
tion, 058
not by appeal or exceptions taken until final
judgment thereon, 563
Disputed by Peksons having Subsequent Liens.
validity and effect of, may be disputed by per-
sons having subsequent hens, on the
ground that demand in first suit was
not due or payable, 031
petition to be filed in court by persons disput-
ing" attachment, 031
to be made on oath of petitioner, or some
person in his behalf, 031
petitioner to give bond, or recognize to pay
damag^es and costs, 031
trial by jury may be had thereon, 031
attachment may be dissolved in whole or in part, 031
not to be dissolved by reason of certain de-
fences which the defendant might set
up, 631
proceedings between adverse claimants not af-
fected by answer or other act of
defendant in the suit, 031
if, wliile proceedings are pending, ori^nal action
is removed to higher court, the inquiry
concerning the attachment shall also
be removed, 031
costs may be awarded to either party in such
proceedings, 031
damages may be, to attaching creditor if his at-
tachment is sustained, 031
decision on petition to bar any claim for dam-
ages to petitioner by plaintiff on ac-
count of fraud in making attachment, 031
Excessive, now reduced.
defendant may apply to court to which the writ
is returnable, and have attachment
dissolved, or part of property re-
stored, if attachment is excessive, 031, 032
ATTAINDEB.
no bill of, to bo passed, 5
tre;isou not to work corruption of blood or for-
feiture, except, &e., 7
ATTEMPT.
to commit murder, how punished, 703
to extort money by threats, 793
to commit offences, how punished, in various
cases, S20
ATTENDANCE.
of children in the schools, 228
costs for, what to be allowed, before justices of
the peace or police court, 783
in actions nonsuited, defaulted, continued,
&c., 783
day when action is disposed of, further
term, ito., to be entered on docket, . . 7&3
ATTOKNEY-GENEKAL.
not to hold certain other ofiic^s, 30, 33
when and how elected, 37, 02
term of office of, 37
qualifications of, 37
return of votes for, 59,00
vacancy in office of, how filled, 37
ATTORNEY-GENEKAL — co7i<tn?ie^.
ncglei-liug to quaUfy for ten days, office to be
deemed vacant, 37
annual report of, to legislature, 130
when may be put in type, 53
Balary of, 129
allowance to, for clerical assistance, 129
and for expenses in civil actions, where state
is a party, and to accoimt for same, , 130
to appear for commonwealth in capital cases, . 129
and when state is a party, or interested, or
upon order of goveraor, &c., . . . 129, 130
to enforce collection of money due to state, , , 137
to assist district-attorneys before grand jury, in
capital cjises, 130
aud advise them in matters relating to their
office, 1-30
when present, to have management of pros-
ecutions, tfcc, 131
to enforce application of funds for public char-
ities, 130
to prosecute corporations failing to make to le-
gislature, returas required by law, . , 130
to attend sessions of legislature, aud give opin-
ions, when required, 130
to advise secretary, treasurer, &c., on questions
of law, 130
to advise the governor respecting surrender of
persons demanded as fugitives from
justice, S54
in absence of, court may appoint person to per-
form duties, 130
not to receive fees from prosecutor, nor to be
' counsel in certain civil cases, .... 130
no fees for travel to be taxed for, 782
to account witli state treasurer for fees, costs,
&c., 130
to prosecute officers of bixnks for violation of
law, 302
to prosecute insurance companies, officers, or
agents, for violation of law, 321
may prosecute loan fund associations for viola-
tion of law, .335
to file informations, X-e., against trespassers on
public property, 130
duties of, in relation to persons unlawfully en-
tering or intruding upon, or holding,
lands of commonwealth, 717-719
when lands, the title to which is in the
state, trustees, guardians, treasurer,
or agents, for use of Indians, .... 719
ATTORNEY'S FEE,
in supreme judicial court or superior court, . . 783
ATTORNEYS AT LAW.
any citizen, upon three years* study, and other-
wise qualified, may be admitted to
practice, 615
or alien having made his primary declaration,
<tc., 615
may be admitted, on examination, without three
years' study, 615
may be admitted, in either case, by supreme or
superior court, 015
from other states, how admitted, 015
to take and subscribe the oath of office, .... 015
• may practise in all tlie courts, r.nd no (Ustinction
of counsellors and attorneys, 615
may act as counsel for persons claimed as fugi-
tives from service, 740
may be removed for mal-practice or gross mis-
conduct; expenses of removal, how
paid, 015
934
INDEX.
ATTORNEYS AT I^AW—couiimtpd.
parties may manage tht-ir own suits, or employ
such couuscl as they may eng^ag-e, . . 015
not more thnu two for each party to be engaged
in any suit, without leave of court, . . C15
any persons may act as such, in mana{i;iug suits,
on being specially authorized, .... (il5
to have a lien ou execution obtained iu suit
prosecuted by them, 015
neglecting to pay money ou demand, liable to
pay live times' lawful interest, .... G15
not to appear in any case previously determined
by thera as judge or justice, . . . 015, 010
not to act in certain other cases, when judges or
registers, G02, OlO
sheriffs, deputy sheriffs, coroners, and consta-
bles not to appear as, ifcc, 016
penalties for so acting, 151,153,104,010
not to buy, or be interested in buying, chums
for suit, nor to induce persons, by cer-
tain means, to place claims in their
hands for collection, under penalty, . 618
exempt from serving as jurors, 080
may act as counsel for fugitives from service, . 7-iO
to certify demurrers, 055
agreements by, respecting writs, not valid un-
less iu writing, 600
arrest of, on mesne process, in actions for money
collected by them, how made, .... 6.33
on execution in such actions, 034
AUCTIOISr.
goods sold by, contrary to law, to be forfeited, 281
tenants of houses, &c., liable for unauthorized
sales by, in such house, &c., 281
penalty on person selling by, without license, . 281
AUCTIONEERS.
to be licensed for one year by selectmen, &c., . 280
license of, to be recorded, 280
fee for license, 280
may be licensed by county commissioners, if
selectmen refuse, 280
cities and towns may designate places of sale
by,&c., 281
to give bond, 280, 281
to keep accounts of sales, 281
may sell at any place -within his county, .... 281
may sell at any place within the state, when, &c., 281
penalty on, for receiving goods from minors, or
selling before sunrise, or after sunset, 281
for selling in place where he is not author-
ized to sell, 281
for fraud or deceit, 2S i
ou person for selling, not licensed as, ... 281
not to sell under hawkers' licenses, except in
places wliere licensed as hawkers, . . 283
provisions concerning, not to apply to sli'-riUs,
Ac, 281
AUDITA QUERELA.
farm ;ind service of writ of, r4'2
where to be sued out and returned iu ditTerent
cases, "42
to remedy wrongful issuing of execution on
recognizance for debt, 772
writ of, to be indorsed before entry, if no one of
plaintiffs resides in this state, .... 622
indorser of, wiien may be required, or changed,
after entry, 657
after issuing of writ, court may grant injunc-
tion, as justice and equity require, . . 743
pleadings, trial, and judgment, 742
plaintiff in, entitled to recompense for what
damages, 743
AUDITA QJJBB,'m'L A — continued.
judgment in, when a bar to other action for
same damages, 743
appeal from superior court allowed to either
party, as in other civil cases, 742
plaintiff, if imprisoned on process complained
of, may be enlarged on giving bond, . 743
condition of such bond, that plaintiff shall sur-
render himself, if, &c., 743
when plaintiff surrenders, according to his bond,
to be in custody as if writ had not
been brought, 743
AUDITOR OP ACCOUNTS.
when and how elected, 37, 62
return of votes for, 50,00
term of office of, 37
vacancy in office of, how filled, 37
qualifications of, 37
neglecting to qualify for ten days, office to be
deemed vacant, 37
to give bond, 135
salary of, 135
may employ one permanent clerk, 135
salary of clerk, 135, 130
may employ additional clerks, 130
salary of such clerks, 130
to examine accounts against state, and may
deduct overcharges, 130, 140
to require bills exceeding fifty dollars to be
sworn to, except, &c., 140
to make and record certificate of amount due on
demands against state, 136
to transmit such certificate to governor, . . , , 136
to keep distinct accounts of public receipts and
expenditures, school fund, and other
public property, and debts, 136
Annual report to be made by, to legislature, . 136
may l)e made in print, 53
contents of, 136
when to be laid before legislature, .... 52, 136
of expenses of office, »&c., to be made to le-
gislature, 141
to examine treasurer's hooks annually, .... 130
to comply %vith certain regiUations, prescribed
by governor and council, 136
books and accounts of, to be examined by com-
mittee of the council, 136
and by committee of accounts of legisla-
ture, 136
to cause bank notes to be engraved, 314
to countersign, number, and register such notes
by himself or clerk, 314
to destroy bank notes returned by bank, and
certificate to be entered, &e., 314
to give notes to hank upon receipt of public
stock, 314
securities held by, for banks, to be stamped or
branded, 314
such securities, when witJulrawn, to be in-
dorsed, &c., 315
to give notice to bank of bills protested, .... 315
to api)ly trust funds for payment of bank notes,
&c., 315
penalty for countersigning excess of notes, . . 315
plates, dies, &c., to remain in custody of, . . . . 315
to furnish banks with powers of attorney to re-
ceive interest on stocks pledged, . . . 315
may revoke such powers of attorney, 315
may give up securities on receiving ninety per
cent, of bank notes, &c., 315,316
to transfer stocks of insolvent banks to receiv-
ers, 316
INDEX.
935
AUDITOR OP ACCOXTNTS — continued.
duties of, as to accounts of county treasurers
for fines, forfeitures, and costs, . 852, 853
to be one of board of commissioners of alien
passengers and state paupers, .... 396
AUDITORS.
may be appointed by court in actions of con-
tract, tort, or replevin, when at issue,
to hear the parties, &c., and report, . 616
to give notice to parties of time and place of
meeting, and may adjourn GIG
if more than one in a case, all to meet, but a ma-
jority may report, GIG
may be discharged by court, and case committed
to sajue or other auditors, GIG
AUDITORS — con(/;iMf(/.
report of, to be prima facie evidence, GIG
interest on, how computed, GS5
compensation of, jmd how taxed and paid, . , . GIG
witnesses before, how may be summoned,
sworn, &c., 672, G73
punishment of, for accepting bribes, 813
for bribing or attempting to bribe, 813
AUTHORITY.
couferrod ou more than two, may be exercised
by a majority, 51
AWARDS. ( Ser A rbitration.)
of couuty commissioners, committees, and ref-
erees, to bear interest, G85
form of declaration in actions on, OGl
B.
BACK BAY.
limitation to suits for recovery of lands by com-
monwealth, not to apply to land in, . 770
BAIL.
excessive, not to be required, 9, 16
when excessive is required, how party may be
relieved, 734, 737
Ix Civil Casks.
not to be required on mesne process of repre-
sentatives iu the general court, .... 22
may be given by any defendant arrested on
mesne process, G:Jo, 037, 042
not to discharge dcfendsmt from imprisonment
on sentence of fraud, 042
to be taken by bond to sheriff or other officer,
and with wliat condition, 042
not discharged by entry of judgment, as at a
former term, in actions continued nisi
in supreme court, 557
not discharged by appeal or exceptions taken, . 503
liability of, not revived by entry of appeal or ex-
ceptions on petition, 555, 503
shall satisfy judgment against principal unless
he is surrendered, or they are other-
wise discharged, 643
not concluded by adjudication that an amend-
ment is for same cause of action, unless
notified, 002, GG3
not liable, unless writ of scire facias is served on
them within one year after final judg-
ment, &13
how long held when judgment is entered in
cases continued nisi, 557
may be exonerated by surrendering their prin-
cipal before final judgment, . . . 043, 044
may be talcen anew after surrender of principal
by former bail, 044
when taken in cases before justice of the peace
and police courts, proceedings in rela-
tion to, 044
when and how liable for support of principal
after siu-reuder, 045
taken in actions in which new defendants are
brought in, to be held liable, 058
may be taken on writs sued out by sureties on
administration bonds, to bring in prin-
cipal, 500
BAIL — contiMiiil.
Bond given by, to run to sheriff or other ofllicer, 042
to be with two sureties having sufficient in
state, 042
officer may examine sureties on oath, and
liable if he takes only one, 042
binding, although executed by one surety, . 642
may be approved by certain magistrates, . . 642
to be returned and filed with writ, and time of
filing noted, 043
to be sent with other papers to court appealed
to, iu case of appeal, G43
to be considered so far matter of record that
scire facias may issue on, G43
Scire facias, against, may be issued from court
iu which judgment was rendered, in
term time or vacation, in name of cred-
itor, 643
may be issued by justices of the peace, . 605, 644
what shall be alleged therein, 643
must be served within one year sifter final
judgment, 043
defendants in, may answer jointly or sever-
ally, 043
costs on, to be paid by bail upon surreuder of ,
principal, 043
Surrender of principal by, 6i3, 044
may Itoiu court where scire facias is pending,
upon payment of costs, 643
in such case principal to be committed to jail,
and how long held, 643
may be to the jailer in county where principal
was arrested, or in which the original
writ was returnable, 643
in case of surrender to jailer, he may require
copy of bail bond, and shall be pro-
tected by such copy, 643
bail within fourteen days to furnish jailer
with copy of writ and ofllcer's return, 043
and give notice to plaiutifl^s attorney of
time and place of commitment of
principal, 643
to pay costs on writ of scire facias if sued out, 644
may be m.ade in court where original action is
pending or to officer holding execution, 644
principal, when surrendered, shall be re-
ceived by jailer and may be bailed anew, 044
befdre police court and justices of the peace,
936
INDEX.
'BAUj — continued.
creditor to procure attendance of offi-
cer, 6+4
in Buch case, officer to attend and take charge
of principal, 044
entry to be made of surrender, and principal
to be committed, 644
copies of papers to be delivered to officer, and
by him to jailer, C44
fii.s of officer, 0+4
Support of principal surrendered, . . 044, 645
if principal claims support as x^auper, creditor
to pay in advance or give security, 044, 645
bail liable for support of, until seven days af-
ter notice to creditor, 645
when defendant may be discharged if sup-
port is not paid, 645
In Criminai. Cases.
arson, rape, and treasou not bailable, S36
persons constitutionally committed by governor
and council, senate, and house of rep-
resentatives, not bailable, 73S
to be taken by magi strates in bailable cases, when
there is cause to believe jjrisoner guilty, 833
to be tiiken by recognizance, S32
by whom to be taken when persons arc commit-
ted for bailable ofFencos, or for not
finding sureties of the peace, . 73r, 7.3S, 834
not to be taken by police court, justice of
peace, or commissioner, in a less sum
than was required on commitment, . . 834
in what cases may be taken by magistrate, at
prisoner's request, without examina-
tion, 831, 832
to be taken, if offered, in all cases bailable, for
appearance at adjourned examination
before a m:igistrate, 832
by magistrate, after examination, in all ca-
ses bailable by hira, 833
on habeas coi"pus, in all bailable cases, . . . 737
by justice of the peace, pursuant to order of
judge, &c, 737
may be allowed by supreme court, or Ruperior
court, or any judge of said courts, in
all cases whatever, (except, &c.,) on
writ of habeas corpus, 737, 73S
persons held m prison on imiictment, when to
bo bailed on their o^\ti recognizance,
if brought to early trial, 840
those committed on Lord's day, or on evening
or afternoon preceding, may be b;uled
on Lord's day, 834
Surrender of principal by, 835, 830
may exouT-rate thi-inselves by surrender of
principal mto court, 835
before commencement of scire facias, . , . 835
before final judgment on scire facias, . , . . 835
after final judgment on scire facias, . . . 835, 83li
if scire facias is commenced, whole costs or
penalty, or part thereof, the court may
require to be paid, 835
where by act of God, or of govermnent, or by
sentence of law, principal cannot be
surrendered, bail may be discharged
by court, with or without costs, . . . 835
principal, when once surrendered, may be bailed
anew, 835
new bail not to have benolit of surrender, &c.,
like foruun- buil, 835
BAILEES.
embezzlement by. how punished, 800
BAKER'S ISLAND.
hmd iur lighthouses on, ceded to United States, 44
BALANCES.
unclaimed, for two years or more, and held by
coi-porations, to be advertised, .... 386
BALLAST.
weighing of, may be reg"ulated by ordinance in
cities, &c., , 291, 292
BALLOTS. ^See Elections.)
when several ofiicers may be voted for on one
ballot, 5S
peniilty for gi^'ing more than one vote, 01
BALUSTBADES, &c.
may be regulated by city councils, 167
BANKRUPTCY.
congress may establish a system of, 4
when discharge in is pleaded, from what time
parties liable for costs, 780
BANK BILLS. (See Banks.)
how att:H'hed and disposed of, 624, 687
penalty for larceny of paper, &c., designed for, 798
on printers, *S:c., for retaining such paper,
&c., with intent, &c., 798
on persons having custody of such paper,
&c., retaining, with intent, &c., . , . 798
for passing as currency, except, «tc., .... 810
for passiugany for less than five dollars, ex-
cept bank notes, 810
for passing fractional bills or notes, .... 810
for v.ilfuUy and maliciously injuring, . . . 810
for maliciously gathering up and retaining,
to injure the business of bank, .... 810
indictment and proof, in such cases, .... 810
for having in possession five uncurrent and
worthless, mth intent to circulate, to
defraud, 810
for uttering and passing such bills, with such
intent, 811
for engraving and issuing shop bills in form
of, &c., 811
counterfeit and forged, to be seized and de-
stroyed, 811
remuneration to prosecutors of forgers of, &c., . 811
BANKS.
I. COMMISSIONERS.
three to be appointed by governor, 300, 301
tenure of office, 301
to be sworn, 301
may appoint a clerk, prescribe his duties, and
fix his compensation, 301
to visit banks within one year after going into
operation, &c., 301
to visit banks, savings institutions, &c., once in
two years, 301
powers and duties at such visits, 301
to preserve a full record of their proceedings,
and condition of each bank, 301
to visit banks whose charters have been an-
nulled, 301
may summon, and examine under oath, all di-
rectors, &C.J 301
penalty for refusing to testify before, &c., . . . 301
to examine any bank or savings institution,
upon request of five or more officers, . 301
to apply to sui)reme judicial court for injunction
upon insolvent banks, 301
to make annual report to secretary, 302
to report violation of laws, &c., to secretary, . . 302
banks not to discount notes of, 302
salary of, &c., 302
to examine certificates of stocks held by the
auditor, 315
INDEX.
937
BAJ<!KS — contimted.
II. OEGAMZED UXDER CHARTERS.
1. General Provisions.
subject to what liabilities, &c., 302
name of, privileges, &c., 30;i
where to be kept, 302
may receive deposits, loan money, and divide
profits, 302
not to go into operation until one half of capital
is paid in, &c., 302
capital to be examined by commissioners ap-
pointed by g-overnor, 302
duties of such commissioners, 302
stock not to be sold until whole amount is
paid in, 302
Ptockholder of, not to receive loan until lull
amount of his shares is paid in, . . . 302
specie, equal to fifteen per cent, of liabihty, for
circul.itiou and deposit, to be kept in, 302
what to be deemed such, 301
increase of capital, how to be paid in, 303
when paid in, certificate to be forwarded to
secretary of commonwealth, 303
no person shall hold more tlian one half of capi-
tal stock of a bank, exclusive of stock
held as collateral, 303
commonwealth may take stock in, 303
not to loan more than one half of capital, on
pledge of their own stock, 303
not to hold their own stock except as security,
under penalty, 303
stock held as security to be sold within six
mouths, under penalty, 303
debts, limit of, 303
directors, liability of, when debts exceed amount
allowed by law, 303
dissenting, &c., how exonerated from such
debts, 303
not exempted from liability by directors becom-
ing liable, 303
not to use their money, &c., in trade, 303
may sell property held by them in pledge, . . . 303
to pay over surplus of sales of pledged property,
303, 304
may hold real estate not exceeding twelve per
cent, of its capital, for convenient
transaction of business, 304
2. Meetings, Votes, Proxies.
Meetings, notices of, how to be given, .... 304
each bunk to prepare list of stockholders, &c.,
at least once in six months, under
penalty, 304
Votes, what number, stockholders entitled to, 304
by absent stockholder, may be by proxy, . 304
Proxies, votes of stockholders by, 304
salaried officers not to vote as, 304
record of,to be made, under penalty, . . . . 304
form and execution of, 304
to be filed with cashier, &c., within ten days
of execution and three days of meeting,
for what time aud meetings valid,
list of, to be prepared and read at meeting, .
not to be received or asked for by salaried
officerK, imder penalty,
penalty on officers for violation of provisions
concerning,
3. Directors.
number of, to be determined by by-laws, ....
to be not less than seven, nor more than twelve,
to be citizens, &c., of this state,
to be stockholders, holding unpledged stock, .
79 118
BANKS — continued.
not to be directors of two banks at same time, . 305
where majoritj' of to reside, &c., 305
to be chosen annually, by ballot, 305
at what time to be chosen, 305
may be appointed by legislature, when the 8t,ite
is stockholder, 305
how may be removed, 305
vacancies, how filled, 305
majority of, to be a quorum, 305
to record notes, &c., offered for discount, and
proceedings at meetings of, &c., un-
der penalty, 305
to prepare lists of proxies, &c., to be read at
stockholders' meetings, 304
liability of, in certain cases, 303
absent, &c., how exonerated, 303
may call speciid meetings of stockholders, . . . 305
to choose one of their number president, and fix
his compensation, 305
to appoint cashier, 305
may appoint clerks and other officers, 305
not to be liable to an amount exceeding thirty
per cent, of capital stock of, unless, &c., 306
President, to be chosen from and by directors, 305
compensation of, to be fixed by directors, , 305
4. Cashier and Loans to Officers.
Cashier, to be appointed by directors, .... 3o5
to give bond, . . . . • 305
exempted from serving as juror, CfcW
to call special meetings of stockholders, in
certain cJises, 300
not to bo director of bank of which he is
cashier, under penalty upon the bank, 300
not to hire money of such bank, under pen-
alty upon the bauk, 300
or clerk to furnish officer, &c., serving exe-
cution on lauds mortgaged to bank,
witli a copy of note or obligation, se-
cured by the mortgage, &c., 308
to make annual returns, under oath, to secre-
tary, 311,312
form of return, 311
Officers, for conducting business of, may be
appointed by directors, 305
such officers not to hire money of their o\vn
bank, under penalty upon the bank, . 30C
liabihty of, on notes, .tc, limited, 300
penalty ou bank, if officer liable to greater
amount than allowed by law, .... 300
penalty on, for embezzlement, 800
taking by accomplice of, deemed taking by
officer, SOO
money taken in such cases need not be iden-
tified, 800
5. Bills and Notes.
no bank to pay out other than its own, 306
amount of, which may be issued, 306
not to be issued except at banking house, . . . 300
not to be issued to be kept from circulation,
under penalty, 307
in whose names to be issued, 306
to be signed by president aud cashier, 306
signed by either president or cashier, and in cir-
culation, to be redeemed, 30O
altered to larger amount in circulation, bank ha-
ble for original amount, 306
to be redeemed in specie, during banking hours,
under penalty, 3or>
denominations of, 30^
fractional, not to be issued, under penalty, , > , ZO'i
S38
INDEX.
30G
3A^N^S~ continued.
worthless and counterfeit, how to be stamped
by banks, 300
penalty for not stumping, &c., 300, 307
if stampeil by mistake, bank liable to holder for
its value, 307
not to be issued, payable at a future day certain,
or with interest, except, &c., 307
property of bank to be first applied for redemp-
tion of, 307
may be replevied by banks if unlawfully de-
tained, 307
proceedings in such case, 307
Buits on may be brought within twenty years
from issue, 777
when, where, and how redeemable, .... 307, 308
penalty for neglect to redeem, 308
provisions not to extend to certain checks and
drafts, 308
nor restram a bank from drawing for balances
due, 308
G. LOANS AND Discounts.
not to be made, except at banking house,
not to be made, unless payable by bank, in
specie, &c., on demand, under penalty, 307
interest and exchange, exceeding six per cent.,
not to be taken, under penalty, . ... 307
7. Taking Land, &c., on Execution.
lands of, may be sold on execution, and how
officer shall proceed, 308
officer may adjourn sale, 308
lands mortgaged to, may be sold on execu-
tion,
cashier or clerk to furnish officer, «tc., serv-
ing execution with a copy of note or
obligation, Ac,
officer making seizure to file notice in reg-
istry of deeds, &c., if required, . , , . 308
transfer of note, &c., not valid after such
notice, 308, 309
8. Liability of Stockholders.
stockholders, liability of, in case of loss, &:c.,
of capital stock by mismanagement of
directors, 300
not 80 hable excceiling the amount of stock
actually held by, 309
liable for redemption of bills when bank
stops payment, 309
txansferring shares to avoid such liability,
subject to same on the shares trans
ferred, 300
at expiration of chai-tcr, liable for redcmp
tion of bills, 309
who, believing a bank insolvent, transfer
shares, &c., subject to tlie same liability, 309
obliged to pay debt, &c., against bank, may
recover from other stockholders, &c.,
corporations, being stockholders, under the
same liabilities, &c.,as individuals, .
9. Loans to Commonwealth.
loan, not exceeding five per cent, of capital
stock, to he made to the common-
wealth, upon requisition of the legis-
lature, 309
loan reimbursable by five annual instalments, or
at shorter period, interest not exceed-
ing five per cent.,
neglecting to loan, for thirty days after notice,
to pay two per cent, a month, ....
suits to be instituted by the treasurer for re-
covery of penalty, 310
308
309
309
309
310
310
310
310
310
310
310
BANKB — continued.
treasurer to give notice to president or cashier
of amount required, 309
amount of loan required, to be forthwith placed
tocredit of the state, .309
loan demanded, to be equalized by treasurer
among the several banks, having ref-
erence to obligation of bank, and
amount previously borrowed, . . 309,310
10. Taxes.
to Airnlsh to treasurer, in April and October,
statement of stock paid iu, &c., until
capital is paid,
to pay to tlie treasurer, in April and October,
tax of one half per cent., »5rc., . . .
treasurer to commence an action for neglect, .
11. AVeigiits.
weights to be proved and sealed by treasurer,
&c., once in five years
no tender of goods by banks valid, weighed
with other weights,
12. Retuuns.
in Boston, to transmit weekly returns to secre-
tary,
in South Boston and out of Boston, to transmit
monthly returns to secretary, . . 310, 311
penalty for neglect, 311
blank forms for returns, to be furnished by
secretary, 311
form of return, 311
annual return, penalty for neglect to make, . . 312
13. Investigations.
legislature may examine into the doings of, &c., 312
and may declare charter forfeited, 312
penalty on officer neglecting to exhibit books, &c., 312
one eighth of stockholders in value may choose
committee to investigate, itc, .... 312
such committee, in certain cases, to report to su-
preme judicial court, 312
and court may issue injunction, 312
14. Annulling and Expiration of Charters.
stockholders, by a majority of votes, &c., may
annul charters of, 312, 313
meeting for such purpose, how called, . . . 312, 313
stockholders not exempt from liability by such
annulling, 313
that have animlled their charters, exempt from
bank tax on certificate of commission-
ers, &c., 313
supreme judicial court, on application of stock-
holder or creditor, may limit time of
liability of such banks, 313
plates and dies of bank, when charter expires,
&c., to be delivered to court, 313
15. New Piuvileges.
new or greater privileges granted to any bank
hereafter, extended to banks in opera-
tion, 313
III. OKGA^'IZED UNDER GENERAL LAWS.
ten or more persons may be a corporation for
banking purposes, &c., 313
amount of capital stock, 313
capital stock to be piud in gold and silver, one
half before bank goes into operation,
&c.,
certificate of name, &c., to be made and re-
corded in registry of deeds, and filed
with the secretary, 313, 314
copies of certificate attested to be admitted as
evidence, 314
313
INDEX.
939
BANKS — cou ft micd.
by a vote of throe fourths of its stockholders,
may iaoreuse its capital, 314
subject to laws relating: to other banks, so far
as couslstent with following provis-
ions, 313
business to be carried on at banking house only, 314
neglect to carry on business to work a for-
feiture of its privileg-e, 314
and it may be proceeded against, &c., 314
annual meetings, when to be held, 315
Wotes, to be engraved and printed by auditor, 314
to be countersigned, registered, and num-
bered, before delivered to banks, , . . 314
when returned to auditor, to be destroyed in
presence of president and cashier, , , 314
and certificate thereof to be entered on
books, 314
to be delivered to banks upon receipt of pub-
lic stock, &c., 314
what stocks and amount thereof to be trans-
ferred to auditor for snch notes, . . . 314
what part of sucli stock to be exempt from
taxation, 314
to be at all times secured in full by public
stocks, 314
securities for, may be exchanged or surren-
dered, &c., 3-14
to be stamped by auditor, 314
when withdrawn, how to be indorsed, . . 315
when signed and executed by bank, may bo
circulated as money, 315
penalty on bauk, when payment of, in gold
or silver, is refused, 315
may be protested in such cjise, 315
if bauk neglects to redeem for ten days
after notice from auditor, may be re-
deemed from trust funds in liis hands, 315
proceedings in such ciise, 315
penalty on auditor for signing excess of, . . 315
plates, dies, &c., of, to remjiin in custody of
auditor, 315
expense of such plates, <tc., by whom paid, 315
bank to pay out none but its own, and of
other banks of this state, 315
suits on, may be brought within twenty
years from issue, 777
Stocks, public, to be transferred by banks to
auditor to secure notes, 314
may be exchanged or surrendered, 314
to be stamped, 314
when withdrawn, how to be indorsed, . . . 315
when to be applied for redemption of notes, 315
banks to receive the interest and diWdcnds
on, 315
auditor may give powers of attorney for
tliat purpose, and revoke the same, . 315
divideuds on, received by auditor, to be held
in trust for bank, 315
banks to make returns of, to secretary, , , . 315
to be examined by bank commissioners, . . 315
to be exchanged, &c., if commissioners re-
quire, 315
when to be returned to bank, 315
how exonerated from liability to redeem bills, . 31G
when iusolvent, may be restrained by injunc-
tion from supreme judicial court, . . . 31G
when in hands of receivers, auditor to trans-
fer to, stocks belonging to, 31G
provisions conceruingj may be altered or re-
pealed by legislature, 310
may be dissolved by special act of legislature, . 316
' BANKS — co7itinucd.
remedies agiunst bank and its officers not im-
paired by such dissolution, 31(j
provisions to apply to banks heretofore organ-
ized, 310
IV. SAVINGS BANKS.
by what provisious to be governed, OKJ
Officers of, how chosen or appointed, .... 310
to be sworn, 310
tenure of office, 310
vac^mcies, how filled, 310
chosen, to be notified by clerk, &c., .... 316
list of, who accept, to be published in news-
paper by clerk, 310
penalty on clerk for neglect or false pubU-
cation, 31G
Treasurer, how appointed, 310
to give bond, 31G
to make annual returns to assessors, . . , 318
to inform overseers of poor, upon request,
of deposits of paupers, 3i,s
to inform assessors of amount exceeding
two hundred dollars of any resident
of a city or town, 31s
penalty on, for refusal of, or false informa-
tion, .tl8
Special meetings of, may be held by order
of trustees, ;ji7
to be called by treasurer on written request
of ten members, 317
all meetings to be advertised in newspaper, 317
members of, how elected, and how may with-
draw, 317
no person to continue a member after remo-
val from stiite, 317
may receive money on deposit, 317
limitation of amount of deposit by cue per-
son, 317
deposits, how to be invested, 317
investments restricted, 317
may loan on bonds, provided, &c., 317
no member of a committee, or officer of, to bor-
row, &c., 31P
di\idcnds, how made, and deposits, how with-
drawn, 317
to make annual returns to the secretary, . . 317, 31S
money deposited in the name of minors may be
withdrawn by them, 31s
legislature may make further regulations for the
government of, 318
V. BANKS AND SAVINGS BANKS,
closing concerns, trustees to make annual re-
ports, 319
penalty on, for neglect, 319
not subject to insolvent laws, 59s
BARK.
measurers of, how chosen or appointed, .... 161
to be sworn, 161
fees of, 278
to be measured, &c., like wood, 278
penalty for selling without being measured, , . 278
sale, inspection, &c., of. may be regulated by
towns and cities, 27S, 27i>
BARLEY.
standard weight of bushel of, , . 2ri;j
BARTSrSTABLE.
land iu, ceded to United States, ... ... 44, 45
regulations concerning shell fish on south shore, 43^
County, provision concerning registry of
deeds, &c., in, W-i
940
INDEX,
BABS.
on or across town or private way, how may be
removed, 251
punishment for throwing clown and leaving
opeu, &c., S5C
BASS.
provisions respecting the taking of, 431
BASS RTVEB.
laud at, ceded to United States, 45
BASTARD.
Mother of, may institute process against al-
leged father, 4lH
may testify, &c., in support of complaint, . 405
exiuuinatiou of, may be given in evidence on
trial, 405
Complaints, how and by whom made, if wo-
man refuses to complain, 404
where to be made, if woman is in state alms-
house, 404
not to be ^vithdra^^-n without consent of
overseers of poor, 405
complainant not required to support defendant
in prison, 40G
warrant where returnable in different cases, 404, 570
Alleged father of, may be required to give
bond to appear, &c., 404
may be committed till bond is given, .... 404
may be subsequently discharged, upon giv-
ing bond, 405
bond of, to remain in force till tinal judg-
ment, 404
may be required to give new bond, if sure-
ties are dissatisfied, &c., 405
to be adjudged the father, if jury find him
guilty, 405
if found not guilty, to be discharged ; and
verdict final in cither case, 405
Adjudged father of, to maiutiiin, with assist-
ance of mother, 405
to give bond to perform order of court, in-
demnify town, &c., 405
may be committed till he gives such bond, . 405
entitled to relief as a poor debtor, after nine-
ty days' coufiueuieut, 405
how to give notice of intention to take poor
debtor's oath, 405
liable to mother, and town, &c., after dis-
charge, on such oath, 405
settlements made between parents of, not to
rehcve father from liability to town
for support of, 405
prosecutions to be heard at civil term of supe-
rior court, 405, 40G
for what reasons may be continued, .... 404
to inherit from mother and maternal ances-
tors, 474
mother of, heir to, 474
may be bound as apprentice by mother, .... 549
where parents intermarry, to be considered le-
gitimate, 474
issue of marriage dissolved on account of
consanguinity, &c., of parties, to be
deemed to be, 534
mother of infant, how punished for concealing
death of, 818
how may be indicted, and what verdict given, SIS
BEACHES.
provisions respecting improvement of, , . 750-752
(See Meadotos.)
BEACON.
on spit of sand in Boston harbor, ceded to
United States, 44
BEASTS.
of the plough, exempt from distress for taxes, 82
how impounded for going at large contrary to
law, or doing damage, 185, 180
damage done by, may be sued for in an action
of tort, 185
tlistrained or impounded, how may be replevied,
730, 731
punishment for wilfully kilhng, maiming, &c., 805
for cruelly beating and torturing, 822
for driving, Ac, on railroads, without leave
of proprietors, 303
not ordinarily kept in confinement, when sub-
ject of larceny, 799
BEDS AND BEDDING.
what exempt from distress and attachment,
&c., 82, 688
BEEF.
weighers of, when and how appointed, 258
not to be dealers in cattle, 258
to be sworn, 258
fees of, 258
BEER.
strong and lager, considered intoxicating liquor, 442
penalty for setting up exhibitions at which is
sold beer, 454
BEGGAKS.
idle and dissolute, how to be arrested and pun-
ished, 820
BELL-KOPE.
penalty for wilfully, &c., cutting within twenty-
four hours before fire, 79G
during the burning, 796, 797
BELLS.
to be used with sleds or sleighs, drawn by
horses, on roads, 423
BERHHES.
til bo sold by the strike or level measure, . . , 264
BIBLE.
to be read daily in public schools, 218
exempt from attachment, &c., 688
coi)y of, to be furnished at expense of county,
to each prisoner in jail and house of
correction, 863
BIGAMY.
prohiljited, and how punished, 529, 817, 818
BILL OF DISCOVERY.
jin isdiction of, given to supreme court in equity, 559
BILL IN EQUHTY.
cases iu equity may be commenced by, 559
{Sep Equity.)
BILL OF LADING.
making false, to defraud insurer, how punished, 850
BILL OF PARTICULARS.
to be filed on entry of action, when either com-
mon count is used, 655
may be ordered by court to be filed by either
party to a suit, 600
items in, to he numbered consecutively, .... 655
deemed part of record, and to be answered or
replied to as such, 655
every item to be answered specifically, 656
BILLS OP EXCHANGE.
maturing on .Sundays and public hohdays, when
payable, 293
when may be protested, in such case, 293
damages on protested bills, payable beyond lim-
its of United States, 293, 294
payable without tliis state, and within
United States, 294
payable within this state, 294
grace allowed on, • 294
INDEX.
941
BILLS OF EXCHAI^GE — coH(/H?(erf.
parties eevcrally liable on, may be joined in
yamc action, G5i
how proved against estates of insolvent debt-
ors, 584,598
BILLS AND RESOLVES.
to be approved by g-overnor, or returned to lo-
g-islature with objectiony, 17
how to become law, if governor objects, .... 17
if not returned by governor ivithiu five days,
to become law, unless legislature ad-
journs, IS, 32
to be engrossed on parchment, under direction
of secretary, 4'.>
BILLIARD TABLES AND BOWLING
ALLEYS.
licenses for keeping, may be granted by select-
men, &c., . . ■ 4(13
penalty for keeping without license, 403
for admitting minors to, 403
for allowing play after six o'clock Saturday af-
ternoon, &c., 403
officers may enter, &c., to enforce laws, .... 403
penalty for erecting, &c., bowling alley without
license, 403
jurisdiction of offences for keeping contrary to
law, given to justices of peace, . . . . 000
BILLINGSGATE ISLAND.
laud on, ceded to United States, 45
BIRTHS.
city and town clerks to record and index facts
concerning, 108
form of record, Kt6
to be reported to clerks by parents, 109
return to be made by clork to secretary, under
penalty, 109
record of clerk concerning, to be prima facie
evidence in legal proceedings, .... 109
certificate of clerk to be evidence of such record, 109
superintendents of state almshouses to make
returns concerning, 109, 170
town clerks, where such almshouses are located,
to be exempt from making returns, . 170
towns may make additional rules concerning
registration of, '. 170
registrars may be appointed in certain towns,
&c., to make record, &c., concerning, 170
BIRD ISLAND.
cod.d to United States, 44
BIRDS.
certain, penalty for killing, &c., at certain sea-
sons, 429
at any time, 429, 430
for taking by traps, &c., 430
for killing on salt marshes, at certain sea-
sons, 430
grouse or heath hen, 430
penalties may be suspended, 430
plover, &c., at certain seasons, 430
or at any time, with unusual implements, 430
search warrants for grouse may be issued in
certain cases, 430
not ordinarily kept in state of confinement,
when subject of larceny, . . • .... 799
BLASPHEMY.
lu)W punished, 819
BOARD OP ACCOUNTS.
in Suffolk county, how constituted, and general
duties and compensation of, . . . 149, 150
to settle and allow accounts for expenses of
keeping prisoners in house of correc-
tion, &c., 8(H, 865
79*
BOARD OP DIRECTORS OP PUBLIC
INSTITUTIONS tor the city of Boston.
powers anil duties of, 394, 395, 858, 859
BOARD OP EXAMINERS.
of whom to consist, 149
to examine returns of votes for county commis-
sioners, CO
when to meet lor this purpose, 00
to notify person chosen, CO
to file returns, after examination, in clerk's of-
fice, 60
penalties for neglect of duty, 60
to examine and allow accounts of commissioners, 149
compensation of, 149
BOARD OP HEALTH.
may be chosen by towns, if no special pro-
vision is made by law, 188
of what number to consist, 188
or health officer may he chosen, 188
selectmen to be, if none clioscn, 188
how appointed, or constituted, ui cities, .... 188
and if not appointed with full powers, city coun-
cil to act, 188
may appoint a physician, and establish Iiis pay, 188
to regulate fees, &c., of persons employed in
executiouof health laws, ISS
to make regulat ions i-espectiug nuisauces, cjiuses
of sickness, &c., IS8
as to articles that may contain iofection, . . 188
penalty for violating such regulations, . . . IS8, 189
to give notice of regulations, 189
to examine into and abate nuisances, &c., . . . 189
may order nuisances on private property to be
removed by owner, &c., 189
penalty on owner, &c., for neglect, &c., to
remove same, 189
how such order to be served on owner, . . 189
if premises are unoccupied, 1S9
may remove nuisance, «&c., at expense of owner,
&c., if he neglects, 1S9
may notify occupants of unfit dwellings to
cleanse or to quit premises, 189
may cleanse the same, or remove occupants for-
cibly, if they neglect, 189
such premises not agnin to be occupied
Avithout written permission of, ... . 189
penalty for occupying without such permis-
• sion, 189
eoui-ts may order nuisances to be abated under
direction of, 189
may make compulsory examinations of prem-
ises, if owners refuse, 190
how to proceed in siu'h examinations, 190
may grant permits for removal of nuisances,
sick persons, and infected articles, . . 190
may remove infected person to separate house,
Ac, 190
charges of such removal, &c., by whom to
lie paid, v.)0
proceedings in case infected person cannot
be removed, 100
may prevent entrance of infected persons from
other states, without license, 190
penalty on person coming into the state
from infected places without such
license, 190
may, under warrant of two justices, remove sick
person, impress houses, nurses, &c.,
for the sick, UK)
may apply to a justice for warrant to impress
nieu» to secure, &c., infected articles,
190, 191
942
INDEX.
BOAHD OF TTTn a T.^TT — mn timipd.
such warrant to bo issued by justice, . ... 191
may authorize impressing of houses, &c.,
for safe keepiufj of infected articles, . 191
may be executed by breaking open houses,
&c., if necessary, 101
in execution of, officer may require aid, , lyi
penalty for refusing to aid officer, .... 191
expenses of securing infected articles to be
paid by owner, 191
compensation for houses and services im-
pressed to be made by towns, .... 191
may order removjil of certaiu sick prisoners to
hospital, &c., 191
return of such removal to be made to court, 191
may make regulations concerning quarantine of
vessels in seaport towns, 192
may remove foul, &c., vessels to quarantine
ground, 192
to have charge of hospitals, &c., in towns, . 192, 193
to provide hospitals when dangerous disease
breaks out, 103
may cause sick, &c., persons to be removed
thereto, luiless, &c., 103
to give public notice, &c., when dangerous dis-
ease exists, 193
to assign places for trades, &c., which are nui-
sances, &c., 103
such assignment to be recorded, 194
may forbid the exercise of such trades, &c., , . 194
orders forbidding siime, how to be served
on occupant, 194
penalty for disobeying order, 194
appeal to superior court and trial by jury, . 194
trade not to be exercised during pendency
of appeal, 194
form, return, and effect of verdict, 104
costs in such cases, IW
when places assigned are nuisances, may
be revoked by superior court, .... 194
may make, and shall give notice of, regulations
eonrcrning burial grounds, &i'., . . . 190
BOARDING-HOUSES AND TAVERNS.
Keepers of, to give names of persons taxable
and liable to enrolment to assessors,
under penalty, 77, 91
to have lien on baggage and effects of
guests or boarders brought to their
house, 7~0
bow lien may be enforced, 770
not to have lien upon wearing apparel of
seamen, in certain cases, 290, 770
BOATS.
for transporting stone, regulations of, ... 290, 291
of fishermen exempt from attachment and levy
on execution, G88
unlawful taking and using of, how punished, . 801
BONDS.
General Pkovisions.
of corporations and joint stock companies nego-
tiable, 293
Suits upon, how declared on, 654
forms of declaration on, 604
judgment to be for penal sum, when it ap-
pears that condition is broken, .... 686
execution to issue for sum found due, . . . 686
amount due for subsequent breaches may
be recovered by scire facias, 686
in such case, amount how assessed on scire
facias, 686
above proceedings not to prevent other
suits for non-performance of contract, 686
"BOlfrD^ — continued.
Probate.
miscellaneous provisions respecting, .... 505-507
sureties to be residents of this state, and ap-
proved by judge, 505
to bo examined by judge, his approval indorsed
thereon and filed, 505
when need not contain provision to account for
proceeds of real estate, 505
when there are two or more persons appointed
to a trust, joint or separate bonds
may be taken, 505
if sureties or penalty is insufficient, new bond
may be required, 505
surety may be discharged on petition, 505
if pi'incipal fails to give new bond when re-
quired, to be discharged from trust, . 505
prior sureties to be liable for breaches bel'ore
new bond is approved, 505
By administrators, when to be given, and
conditions of, 483
by special administrators, 484
public administrators, 466, 487
By executors, when to be given, and condi-
tions of, 481
in case executor is residuary legatee, . . . 481
By guardians, wlien required, and conditions
of, 545
By trustees, when required, and conditions of, 501
May be put in suit, by creditors next of kin,
legatees, &c., in different cases, . 505, 506
how when judge is obligor, 506
proceedings in such case, 506
writs, how indorsed, &c., 506
indorsers of, liable for costs, 506
action on, if not brought against, or writ not
served on principal ret^idcut in state,
to be continued at request of sureties,
to bring in principal, 506
sui'cties on, when sued without principal,
may have writ to arrest or attacli
property, and summon him to appear
as defendant, SOG
judgment, if for plaintilf, to be rendered
against principal and sureties, .... 500
when rendered, how and in whose name,
&c., execution shall be awarded, . . . 506
execution on such judgment, how issued
and served, 506, 507
moneys collected by suit on, how disposed of, 507
for new breach of, scire facias may issue on
original judgment for further dam-
ages, 507
Respecting Property attached.
To dissolve attachments, how given and
approved, 632
By debtor whose goods are attached to
pay appraised value, and prevent
sale, G29
to be taken by officers, if ofiered by debtor, 629
to be returned with writ, as bail bonds arc, 629
if forfeited, may be sued by creditors in
officer's name, . ■ 629
writ on, to be indorsed with names of all
the creditors who sue, 629
all creditors, whose names are indorsed on
writ, liable to execution for costs, . , 629
money recovered on, after deducting ex-
penses, to belong to attaching cred-
itors, and be distributed by court, . . 629
judgment may be rendered, and execution
INDEX.
943
BONl>3 — co7ittmte(L
awarded to the several creditors, as in
suits ou administration bonds, . . 629, G30
or one execution may issue for all the cred-
itors, 630
execution not to be awarded, without re-
serving for prior attaching creditors,
though they did not sue, 630
before final judgment on, any attaching cred-
itor may become a party to suit, , . , 630
after judgment on, attaching creditor not a
party to the suit on, may have scire
facias to recover what may be due to
him, 030
suit on, and scire facias on judgment on,
limited to a year after cause of action.
iSec Attachinent.) 630
By any of the owners of goods attached
on suit against part owner, . . . 630
to be t;ik('n by officers, if offered by debtor
or other part owner, and property de-
livered to him, 630
to be returned, sued, &c., as bonds above
mentioned given by debtors to prevent
sale, 630
Issued by Railroad Compaxies.
how issued, secured by mortgage, tfcc, . , , 363-367
In other Cases.
By plaintiff on taking out execution
against absent defendants, . 605, f>i6
In estates of insolvent debtors, may be re-
quired of assignees, 5S6
of assignees, how sued, 586
bottomry and respondentia, how proved
agiiiuBt debtor's estate, 584, 598
By poor debtor, when final judgment is ren-
dered against him, or when surren-
dered by bail after judgment, to obtain
discharge, 640
action of contract may be brought on such
bond, 641
Bail bonds. {See li ail.) 642
In actions of replevin. {See Replevin.) . 730,731
To obtain execution for costs before appeal
from taxation is determined, 782
For keeping conditions of pardon, .... 855
where to be deposited and when prose-
cuted, 855
By various public officers. {See Titles of
respective Officers.)
B01SrPIH.ES.
l)uulslunent for making within ten rods of
builtling, 816
BOOKS.
used in schools, provisions concerning, , . 218, 219
what exempt from attaehmeut and execu-
tion, 024, 688
BOOTS, &c.
makers of to have exclusive right to stamp, . . 270
how stamped, stamp to be deemed warranty, . 270
not deemed merchantiible unless stamped, . , . 270
penalty for fraudulently stamping with anoth-
er's name, 270
BOSTON.
city of, lighthouse, on Light-House Island, in
harbor of, ceded to United States, . . 44
beacon and spit of sand in harbor of, ceded to
United States, 44, 45
CaBtle,Govcrnor'8,George*s,and Level's Islands,
in harbor of, ceded to United States, . 44
B OSTON — COM tinned.
land on Long Island Head, in harbor of, ceded
to United States, 44
Nix's J[atc,iu harbor of, ceded to United States, 45
Great lirewster Island, in harbor of, laud ou,
ceded to United Stjites, 45
site for beacon on Point Alderton Bay, ceded to
United States, 45
" Masonic Temple," in, ceded to United States, 45
harbor of, what to be deemed limits of, for cer-
tain purposes, 290
penalty for boarding vessels in, without
leave, except by pilot, &c., 290
countyproperty in Suffolk, to belong to, .... 144
to provide county buildings, imd pay all county
charges, 144
aldermen to act as county commissioners in, . . 148
criminal jurisdiction over islands and waters in
harbor of, 145
treasurer of, to be treasurer of Suffolk county, . 149
powers and duties of aldermen iu laying out
ways in, 242
in laying, maintaining, &c,, drains and sew-
ers in, 253, 254
in relation to signs, gates. &c., at railroad
crossings, 3G1
lunatic hospital iu, special provisions concern-
ing, not repealed, 413
agents for sale of liquors in, to be appointed by
state liquor commissioner, 439
mayor and aldermen of, to put in suit bond of
manufacturers of liquors, upon breach
thereof, 440
actions by and against, iu what county to be
brought, 021
how may be removed, when brouglit iu
county of Suffolk, by Boston, .... 621
inhabitants of, not thereby disqualified from be-
ing jurors in any case, 618
members of fire department of, exempt from
serving as jurors, 680
auditor of to audit coroners' accounts in Suf-
folk, 850
Board of directors for public institutions
in, to make aniuuil returns to secre-
tary concerning paupers, 394, 395
penalty on, for not making such returns, . . 395
powers and duties of, 858, 859
BOTTOMKY.
contraet of, need not be recorded, 767
how proved against estates of insolvent debt-
ors, 584,598
BOUNDARIES.
Of towns, provisions respecting, 157, 158
Of counties, 43, 144
wilful and malicious injury or destruction of
monuments, &c., of, how punished, . 803
BOUNDS.
permanent, to be erected on roads, 243, 244
BO^WLING ALLEYS.
licenses and regulations of, 463
jurisdiction of offences for keeping contrary to
law, 009
BRA"WrLERS.
commim, how arrested and punislied, . . . 820, 821
BREAD.
weight of loaf, 258
how sold, 258
prices of, to be displayed where sold, 258
to be weighed in presence of buyer, 258
penalty for violation of these provisions, . . . , 258
provisions not to apply to rolls or fancy bread, . 258
944
INDEX.
BKEAKnSTG.
dwelliag'-liouso, with intent to commit felony,
after having entered with such intent,
tlie offender being armed, &c., or mak-
ing an assault, how punished, .... 797
the ofleuder not beiug armed, &c., how pun-
jwhed, 797
BEEAKUSTG AND ENTERING.
dwelliug-liouse by night, to commit felony, any
person being lawfully therein, and the
offender being armed, or making an
assault, how pimished, 797
the offender not being armed, nor arming
himself, nor making an assault, how
punished, 797
any building, ship, or vessel, in night time,
with intent to commit felony, how
punished, 797
in day time, or entering in the night time
without breaking, with such intent,
persons lawfully therein being put in
fear, how punished, 797
in day time, or entering dwelling-house in
night time without breakiug, with
eucli iuteut, no person beiug put in
fear, 797
BRIBERY.
conviction of, in obtaining election, &c., to dis-
qualify party from holding office of
trust, 30
giving of bribes to officers, how punished, , , . 812
acceptance of bribes by officers, how punished, . 812
corruptiug jurors, arbitrators, &c., how pun-
ished, 813
acceptance of bribes by jurors, arbitrators, &c.,
how punished, 813
of offiriTS to omit duty, how pimished, 814
BRIDGES.
On highways, to be kept in repair by towns, 245
wbt-re SL'veral towns iu"0 required to main-
taiu bridge, county commissioners
may make orders for repair, 245
when life is lost, through defect of, county,
&c., liable to fine of one thousand
dollars, 247
damages caused by defect in, to be recov-
ered of j)arty liable Jo repair, .... 247
defendants in such cases may make tender
to plaintiffs, 247
penalty on towns for neglect to repair, . . , 247
fines imposed in such cases, how appro-
priated, 248
in suits for injuries, when location not to
be denied, 248
over railroad, construction of, to be deter-
mined by county commissioners, . 357, 358
over or under railroad, how to be main-
tained, 358
Private, proprietors of, how organized, &c., . 248
may choose clerk, surveyor, and assessors, 248
powers and duties of such officers, 248
not to be travelled over by horses faster
than a walk, if by-laws forbid, .... 250
county commissioners, town, or proprie-
tors, to make by-laws, 250
Buch by-laws made by town, to be approved
by county commissioners, 250
penalties for violation of by-laws, how re-
covered, 250
not to be recovered, unless by-laws are
posted up, 250
On turnpikes, damage by breaking, &c., of,
BRIDGES — contimted,
not to be paid by corporation if
caused by too great weight, 347
corporation not liable for deficiency in, to
any person whose carriage and load
exceed six tons, 347, 348
wilful injury to railings, &c., of, how pun-
ished, 803
BRIGADIER-GENERALS.
how chosen or appointed, and commissioned, 24, 97
{Sec Militia.)
BBINGHSTG MONEY INTO COURT.
in casi.' of tender, 671
form of defendant's answer in such case, . . . . 668
costs, in such case, 780
BROTHERS.
when to iulierit property of brothers or sis-
ters, 474
BRUSH'WOOD.
burning of, so as to set fire to woodland in cer-
tain portions of Bristol and Plymouth
counties, forbidden, 807
forfeitures, bow recovered, 807
BUCKWHEAT.
standard weight of bushel of, and regulations
respecting sale, 265
BUILDINGS.
when to be deemed boundaries of highways, . . 251
may be pulled doAvu by order of firewards, . . . 176
owners, when indomnilied in such cases, .... 176
when adjudged nuisance, taken down, &c, ;
costs how paid, 251
burnt, dilapidated, Arc, wheu adjudged nui-
sances, how disposed of, 453
owner aggrieved, may have jury as in case
of highways, 543
verdict of jury, costs, &c., in such cases, . . 453
provisions subject to acceptance by towns,
&c., 453
resorted to for prostitution, gaming, &c., to be
deemed common nuisances, 454
used as dwellings, and uufit, how cleimsed,&c.,
by order of board of health, 189
liens on for labor and materials, 762-766
punishment for burning, in different cases, . . 796
for breaking and entering, 797
wilful, &c., injury to by gunpowder, .... 803, 804
by oil of vitriol, coal tar, Ac., 804
BUNKER HILL MONUMENT.
exempted from taxation, 74
BUOYS,
ceded to United States, 44
BURGLARIOUS INSTRUMENTS.
making, mending, having in possession, know-
ingly, with intent, &c., how punished, 799
BURGLARS' TOOLS.
making, &e., how punished, 799
BURGLARY.
how punished, 797
{See Brealcing and Entering.)
BURIAL.
rights of, exempt from taxation, 74
exempt from b-vy on execution, 688
BURIAL GROUNDS.
exempted from taxation, 74
towns may grant money for, 158
corporations for establishment of, how organ-
ized, 195, 196
powers, &c., of, 196
lots in, uot divisible, 196
if more than one heir to lot, representative to be
designated, 196
INDEX.
9i5
BTJRTATi GB,OJTNl>S — continued.
citk'B :md towns to provide suitable places for,
private land uot to be used for, &e., except, &e.,
regulations concerning, may be made by boards
of health,
notice of, how given,
when closed by order of board of health, notice
how to be given,
owner of tomb closed by board, may appeal, and
have trial by jury,
order to remain in force pending the appeal,
proceedings, when order is sustained and
reversed, 19G,
penalty for using private land for, unless, &c., .
use and occupation of, to be evidence of title to,
highways not to be laid out through, without
special authority of law, or consent of
town,
not to be hiid out through private burial
place without consent of proprietors, .
opening road, canid, Ac, through, without
consent, how punished,
when buildings, &c., shall be deemed boundaries
of.
wilful injury to, or to enclosures, or appurte-
nances, how punished, . . , . 197,821,
BITRIALS.
provisions concerning, 196,
superintendents of, to make returns to to\vn
clerks of certain facts respecting
deaths,
compensation for making return,
to give notice of burials made without cer-
tificate of town clerk, under penalty, ,
of deceased strangers, who are paupers, to be
made by overseers of poor, . . . 195,
expenses, how paid,
of strangers found dead, &c., expense how paid,
of others found dead,
BUKTJTKTG.
of dwelling or other buildings, in night or day,
how punished,
of wood, lumber, hay, or grain, in stacks or
otherwise, standing trees, grass, &c..
or soil itself,
married woman liable for burning such
property of her husband,
of propcrt}' insured to injure the insurers, . . .
wilfully, &c., cutting, &c., bell rope, or injur-
ing fire engine, or apparatus, within
trwenty-four hours before fire, how
punished,
domg the same during the burning, how pun-
ished,
accessory before the fact, and after the fact, who
deemed, and how punished, , . . 796,
BUSHEL.
grain, &c., to be sold by, 265,
standard weight of, for various kinds of grain, .
of potatoes, onions, and salt, * • %
BUTTER ANX> LARD.
inspector-general of, how appointed, and term of
ofiice,
to be sworn and give hond,
may appoint deputies, 258,
deputies to make return semiannually, . . .
119
796
1 BUTTER, &o. — continued.
to be sworn and give bond, 259
fees of, 25'J
penalty on, for neglect to inspect, &c., . . 259
to make returns annually to secretary, . . . 259
contents of return, 259
fees of, 259
penalty on, for neglect to inspect, &c., . . . 259
manner of inspecting, 259
casks of, how to be branded, 259
size of kegs and quality of casks, 259
casks to be filled with brine, before packing, . . 259
weight and name of packer to be branded on
each cask, 259
imported, may be sliipped without inspection, . 259
when may be seized and libelled, 260
penalty for counterfeiting brand of inspector,
&c., 259,260
for putting other butter, &c., into branded
kegs, &c., 260
for exporting, &c., not inspected, 200
BUYING.
grouse unlawfully killed, &c., how punished, . 430
of notes or other demands by attorneys, sher-
iffs, &c., with intout, &c., how pun-
ished, 61S
property known to be stolen, how punished, . . 801
jurisdiction of justices of the peace and
police courts, in such cases, . . . 570, 609
BUZZARD»S BAY.
Bird Island, in, ceded to United States, .... 44
Dumpling Rock, in, ceded to United States, , . 44
BY-LA'WS.
in cities, ordinances are, 52
By towns, may be made, subject to approval
of superior court, 158, 159
may be annulled by general court, 32
may be made respecting weighing, &c.,
lighters, 291
regulation of cai-riages in cities, 167
erection of balustrades in cities, 167
pasturing cattle on highways, 250
driving fast over bridges, 250
registration of births, marriages, and
deaths, 170
inspection and sale of^bark in cities, . . . 279
truant children, &c., 230
dealing in junk, &c., 457
pawnbrokers, 458
gunpowder, camphene, &c., 460, 461
dogs, 463
jurisdiction of offences against, given to
justices of the peace, 608
complaints, &c., founded on, need not set
forth any part thereof, 838
prosecutions under, before police courts,
&c., how discontinucHl, 842
(See Towns.)
By corporations, 336
By proprietors of lands, wharves, &e., lying
in common, 3S0
of bridges, 250
By fire departments and fire districts, . 179, 181
By library associations, 208
By county cominissioners, respecting fast
driving over county bridges, 250
946
INDEX.
c.
CAIiEWDAR.
of in-isouor injails, &c.,tobekept, 8G0
pcniitlty ou master, &c., for uot keeping, .... 860
to be prcscuted to superior court, criminal term.
for iuspectiou, 85$
CALVES.
pemilty for killing for sale, under four weeks old, 82-i
for knowingly selling, or having, with in-
tent to sell, such meat, 822
CAMPHENE, &c.
f^tiira;^'^!' and sale of, how may be regulated, . . 461
CAMP MEETINGS.
penalty on peddling goods, keeping booths, &c.,
without permission, within mile of
place of, 819
not to apply to regular and usual place of
business, • 819
CANALS.
conductors of boats on, to exhibit certificates of
lading to collectors of toll, 347
to pay costs of unloading, &c., if loading he
found greater than in certificate, . . . 347
required contents of such certificate, ;i47
penalty on such conductors for refusing to ex-
hibit, or exhibiting false certificate, . 347
for false statement as to boat's loading, . . 347
how penalties to be recovered, 348
collector of tolls may require boat's loading to
be weighed, 347
proprietors of, to pay for detention of bojt, if
lading is found, on weighing, to con-
form to certificate, 347
to prepare forms of certificates of lading,
and furnish them to boatmen without
expense, 347
CAPE COD.
land fur liglithouscs on, ceded to United States, 44
land for preservation of harbor of, ceded to
United States, 45
CAPE POGE.
laud at, for lighthoifses, coded to United States, 44
CAPITAL CASES.
trial ofj to be before supreme court by four jus-
tices, 553, 554
prisoner in, may be arraigned by single
judge, 553
if he pleads guilty, single judge may award sen-
tence, 553
if he does not plead guilty, counsel to be as-
signed Iiim, and measures taken for
trial, by single judge, 553
exceptions may be taken, and questions of law
reserved in, 554
if frivolous or intended for delay, court
may forthwith enter judgment, . . . 554
after decision upon, judgment may be en-
tered, and sentence passed, or prelim-
inary proceedings had for new trial
by single judge, 554
arising iu Duke's county to be tried in Barnsta-
ble county, 555
other counties where no law term is eatab-
hshed, special term to be lield, .... 555
when no law term is to be held within six
months, court to be convened, .... 555
provisions in regard to trial of, 841
CARDS.
jurisdiction of ofleuces by means of, given to
justices of the peace, &c., .... 570,609
fraudulently obtaining property by, how pun-
ished, 802
CAimiAGES, &c.
laws respecting meeting and passing of, on
roads 423
rules for regulation of, may bo made in cities, . 167
such regulations to be pulilished, 167
penalty for violation of rules, 107
fee for license of, 1G7
unbn\'fully takiug and using, how punished, . . 801
CAEEIEBS.
enibi'zzh inent bv. liow punished, 800
CASHIERS OF BANKS.
exempt from serving as jurors, 680
(See Banks, i.)
CASTLE ISLAND.
CL'dedtu I iiited States, 44
CAT ISLAND.
East Uock of, ceded to United States, 44
CATTLE. (See Kmt Cattle, Beasts.)
CATTLE SHO"WS.
mar.shals at, appointment aud powers and du-
ties of, 378
penalty for gaming at, 437
booths, &c., used for gaming withiu one mile of,
how removed, 454
(See Agricultural Societies.)
CAUSE'WAYS.
to bo repaired by towns, 245
damages caused by deficiency of, how recov-
ered, &c., 247
CELLARS.
occupied as dwellings, and unfit, how cleansed,
&c., by order of board of health, . . . 189
CEMETERIES. {See Burial Grounds.) . . 195-197
pro\ isions concerning, 195, 197
jurisdiction of offences against property in,
given to justices of the peace, .... 609
CENSUS.
provisions of constitution concerning, . 34, 35, 38, 39
of inhabitants, ratable polls, aud voters, to be
taken in 1SG5, and every tenth year
afterwards, 167, 168
Of inhabitants, to specify males and females,
color, &c., 168
natives, foreigners, naturalized voters, &c., 168
Of voters in cities, to specify number in each
ward, 168
by whom to be taken, 168
persons taking to be sworn, and make re-
turn under oath, 168
to deliv# returns to sheriff or transmit to
secretary, 168
secretary to transmit blanks for returns of, to
cities and towns, 168
Of United States, when to be taken, .... 2
CERTIORARI.
writs of, may be issued by supreme court, . 553, 743
petitions for to be indorsed before entry
when brought by parties living out of
the state, 622
indorser of, when may be required after
entry, 637
I
INDEX.
947
CERTIORARI — continued.
subject to further reflation by rules of the
court, "43
not to issue, unless applied for within six
years, &c., "43
pending application for, court may issue in-
junction as justice and equity require, 743
costs on, '43, 781
CHALLENGE.
pt.-iialty for sending or accepting, to fight a duel, 792
for posting for not accepting, 792
Of trial jurors, when not to be challenged on
account of paying taxes, *fcc., in coun-
ty, city, &c., 018, C83
in criminal cases, 841
who may challenge, and for what cause, . . 841
in what cases peremptory challenges al-
lowed, and how many, 841
CHANGE OF NAME.
liow may be miidc by probate court, 574
CHAPLATN".
of senate and house of representatives, compen-
sation of, 48
of state prison, appointment and duties of,
&c., 87l>-872
CHARCOAL.
burning of forbidden, on woodlands in portions
of Bristol and Plymouth counties, . . 807
forfeitures therefor, how recovered, .... 807
form and dimensions of measures for, 270
such measures to be scaled, 271)
penalty for selling, with illegal measures or un-
sealed, 270, 280
unless by special agreement between buyer
and seller,- 280
mayor and aldermen, &e., to appoint persons to
seize illegal measures, &c., 280
such persons may arrest parties without
warrant, 280
illcf^al measures to be dof^troyed, 280
CHARITABLE ASSOCIATIONS.
seven or more persons to be body corporate for
charitable purposes, 207
purpose and location to be specified in articles, . 207
to liave usual corporate powers, 207
may hold real and personal property not exceed-
ing one hundred thousand dollars, . . 207
estate not exempted from taxation where used
for otber itnrposes, &c., 207
CHARITABLE FUNDS.
held by towns, trustees to report annually to
selectmeu concerning, 20G
such trustees may be removed and vacancies
filled by probate court, 206
CHARLESTOWisr.
land n>r navy yard in, ceded to United States, . 44
CHARTERER.
of vessel, when to be deemed owner for certain
purposes ' 289
CHARTERS.
of corporations, revocable by legislature, . . . 340
CHATHAM,
Iimd for lighthouses near harbor of, ceded to
United States, 44
regidations concerning shell-fish in, 433
CHEATS.
gross, at common law, how punished, .... 802
CHECKS.
what not to be issued or passed as currency, . . 307
CHELSEA.
l;ind in, for hospitals and depot of ordnance
stores, ceded to United States, .... 44
CHELSEA— coiitin7i€d.
returns of votes in, for county commissioners
and register of deeds, to whom made, 59
to vote with Middlesex county for county com-
missioners, 71, 72
commissioners for Middlesex to have jurisdic-
tion in, 148, 242
not to be taxed for county purposes, 78
to have no interest in county property, 144
CHEMIST.
may keep intoxicating liquors, &c., 442
aiding in coroner's inquest, compensation of, . 850
CHESTNUTS.
to be sold by the strike or level measure, .... 204
CHILDREN.
attendance of, at school, 228-230
unlawfully excluded from schools, remedy of, . 220
employed in manufacturing establishments in-
struction of, 229, 230
habitual tniants, regulations, by-laws, &c., con-
cerning, 228, 230
stubborn, how may be treated, 820, S21
destitute from neglect of Intemperate parents,
may be sent to almshouse, 392
of female convicts in certain cases, to be in care
of mother, 861
not to gain settlement in town of birth, if par-
ents have none there, 390
to inherit real estate from deceased parents, . . 474
deceased, issue of, to inherit by riglit of repre-
sentation, 474
Legitimate, to follow and have settlement of
father or mother, 390
Hlegitimate, to follow and have settlement of
mother, 390
to inherit from mother and matcimal ances-
tors, 474
may be bound apprentices by mother, . . . 549
mother of, heir to, 474
whose parents intermarry to be considered
legitimate, 474
pro\isions respecting maintenance of, . 404-406
Posthumous, to be considered living at death
of parent, 475
ha\ing no provision made for them in fa-
ther's will, &c., to share as if father
died intestjite, 479
devisees to contribute equally to share of, . 479
Adoption.
petition for adoption of, to be presented to pro-
bate court, 547
not to be granted, unless husband and wife
join therein, 547
consent to be given by parents of, 547
how given, if parents are insane, imprisoned)
&c., &47
proceedings if parent docs not consent, . . . 547, 548
adoption not to be made without consent of child
if fourteen years old, 548
proceedings and decree of, 548
relation, dtc, between parents and child by, 548
rights of natural parents taken away by, . , 548
appeal may be taken to supreme judicial court
by party aggrieved, 548
any decree for may be reversed by supreme
court in certain cases, 548
chanu'-e of name of, in case of adoption, . . . 547,548
CHIPPEQUIDDIC INDIANS.
appropriations, »S;c., for schools for, 213
CHOCOLATE.
how to be stamped, , . , 260
948
INDEX.
CHOCOLATE — continued.
iugredieuts of, 2G0
boxes, how branded, 2G0
may be seized, Ac., when made contrary to law, 200
CHEISTIANTCWN INDIANS.
apprupriittiuiiy, itc. for schools for, 213
CHKISTMAS DAY.
loyiylitture not to sit, and public offices not to
be opened on, 49
courts not to be opened on, except for certain
purposes, 617, 618
bills of exchange, &c., maturing on, when pay-
able, 293
CHURCH "WABDENS.
if citizens of tbis commonwealth, a corporation
to take grants, itc, to their churches, 205
when to be such corporation together with min-
ister or vestry, 205
cannot convey church lands without consent of
vestry, 206
CHURCHES.
connected with religious societies. &c., to have
their accustomed privileges, &c., 200
deacons, tfec, of, to be bodies corporate to hold
donations, &c., 205
ministers of, together with deacons, &c., when
to be corporation, 205
conveyance of lauds of, by deacons, invalid un-
less with consent of church, 20G
may, if not episcopal, choose committees to set-
tle deacons' accounts, 206
amount of income of donations to, limited, . . . 206
and furniture, penalty for wilful, &c., injury to, 803
(Sec PaHshes and lidigious Societies.)
CIDER.
deemed intoxicating liquor, 442
may be made and sold for other purposes than
for a beverage, 442
CITATION.
luiw may be served, 151, 164
of executors, &c., to defend suit against de-
ceased, C18
CITIES.
included in the word "to^vns," 5'
when may be chartered by legislature, 32
powers, itc, of, to continue, 166
laws relatiug to towns to apply to, liSOt
subject to liabilities of towns, 166
mayor and aldermeu to have powers, &c., of se-
lectmen, 160
vacancies in, by non-election, how filled, . . 160
if mayor is not elected, when chairman of alder-
men to act, 166
when, members of city council may hold other
offices, 167
city councils may regulate balustrades, &c., . . 167
to have powers of towns, 166
may require school committee to appoint
superintendent of schools, 219
may make regulations concerning storage
and sale of explosive substances, 460, 461
who to prosecute for fines, &c., enuring to, . . . 167
no new division of wards, in certain cities, until
next apportionment of representa-
tivea, G3, 167
boards of health in, how constituted, 188
ways in, provisions applying to laying out, re-
pairing, &c., 242, 248
liability of, for neglect of mayor and aldermen to
place stone bounds at augles of streets,
&c., in certain cases, 244
may make by-laws to prevent pasturing cattle in
streets, &c., .....' 250
CITIES — con tin ued.
actions by and against, in what coimtios to be
brought, 621
how summoned, in actions against, .... 622, 623
special provisions respecting jurors in, 682
City officers, to have powers and Habihties of
corresponding town officers, unless,
&c., .... 166
vacancies, how filled, 166
when not to be disqualified by removal
from ward, 107
embezzlement by, how punished, 800
"Ward officers, duties of, at elections, 5S, 59, 65, 66,
100, 107
duties of, upon new division of wards, 100
tenure of office, upon new division of wards, . . 100
vacancies, how filled, 100
if absent, officers pro tempore may be elected, . 107
crvrL LA"w.
degree of kindred computed according to, . . . 474
proceedings in cases of seizure of forfeited
goods to bo according to course of, . 773
CLARKE'S POINT.
land at, for lighthouse, ceded to United States, 44
for fortifications, ceded to United States, . 45
CLAIMANT.
in cases of seizure of intoxicating liquors, . 446, 447
in cases of seizing and libelling forfeited
goods, 773, 771
in cases arising under the act respecting fugi-
tives from service, 730
CLAM BAIT, i See Fish.) 264
CLANDESTINE MARRIAGE.
abduction of unmarried female for, S17
CLERGYMEN. iScc Minister.'^ of the Go^iuL)
CLERK OP HOUSE OP REPRESENTA-
TIVE S . ( See llej) resen ta t ires.)
CLERK OP THE SENATE. (,Sec Senate.)
CLERKS OP COURTS.
Of the Supreme .Judicial Court for
Commonwealth.
Clerk of, to be appointed by court ; and, until
appointed, clerk of supreme court for
Sufl"olk county to act, 012
may be removed from office by supreme ju-
dicial court, 553
general duties of, 612
fees of, to be like those of other clerks, ex-
cept that they shall not exceed one
dollar fifty cents in each case, 612
salary of, to be paid out of state treasury, . 012
to payover all fees anuuallyto state treasurer, 012
exempt from serving as jurors, 579
Assistant clerks of, how appointed, and ten-
ure of office, 612
general duties of, to be performed under di-
rection of clerk, 614
salary of, to be paid from state treasury, . . 614
Clerk and assistant to give bond to state
treasurer, and be sworn, 613
Of the Courts in the several Counties.
legislature to prescribe for elections of, by gen-
eral laws, 38
those now in office to continue to hold same, . . 70
in Suffolk, one to be elected for supreme court,
and two, for superior court, one for
civil, and one for criminal business, . 70
in each of the other counties, one for all the
courts and county commissioners, . . 70
how, in case of no choice, 71
returuof votes for, 59,60
may be removed from office by supreme court, 553
INDEX.
949
CLERKS OF COXTRTS — contimied.
vacancies iu oflieo of, how filled by election, . . 72
by appointment until an election, . . GVZ
to be sworn, and give bonds, 013
to be clerks of county commissioners, 012
exempt from service as jurors, 07i)
general duties of, 613
to keep alphabetical lists of parties to actions, . 013
to exhibit to supreme court, each term, latest
book of records, 013
records of, to be inspected by the judg-es, Jiud, if
found to be left incomplete for six
months, bond to be adjudged forfeit-
ed, 013
when there is a forfeiture of bond, judges to no-
tify treasurer having custody thereof,
wlio shall cause the same to be sued, . 013
when recovered, to be applied to making up rec-
ord, and balance paid to treasurer, 013, OH
suit, in such case, not to exempt clerks from
suit for :uiy other breach of bonds,
nor for any other liability, .... 013, OM
to keep an account of all fees, and render account
annually to county treasurer, .... Oil
to make annual return to secretary of common-
wealth of moueys received by them,
and of criminal cases, according to
blanks furnished, under penalty, . . . 129
duties of, in regard to organization, &c., of law
library associations, 208
in regard to returns of votes for county com-
missioners, CO
to record estimates of county taxes, and trans-
mit copies, &c., to seci'ctary, under
penalty, 140
to furnish certificates of abatements of taxes
made by commissiouers, 80
to retain certain portions of fees for their sala-
ries, and one half balance, and pay
over other half to county treasury, . . 014
when to issue venires for jurors in different
cases, 080, OSl, 0S2
to issue venires, and do other acts respecting
special terms of supreme court for
trial of capital cases, 5o5
to enter on docket time of receiving order for
entry of judgment, in cases continued
nisi, 557
to prepare copies and papers for supreme court,
in cases entered for determination of
full court, 557, 503
to enter thereon, and on docket, date of orders
and decrees in equity cases, 500
to enter decrees in equity transmitted from other
counties, 501
not to act in relation to naturalization, except in
ciises prescribed, 018
to perform duties of criers of courts, without
additional compensation, OlS
to uote time of writs, and copies returned by of-
ficers attaching real estate, record the
names of parties thereto, and receive
foes therefor, 025, 020
may, when a justice of the peace, with one other
justice, take depositions to perpetuate
testimony, • . . . 070
may assess damages in suits upon contracts,
when amount due is not disputed, . . 685
duty of, when sentence of death has been award-
ed, 847
when there has been a sentence to state
prison, 846
CLERKS OF COJTRTS — continued.
to subjoin brief abstract of sheriff's returns to
record of the conviction and senteuce, 847
duty of, where warrant for pardon in commuta-
tion of sentence is returned, 856
fees of, 7^4, 785
appeal from taxation of costs by, 782
how and wlien to be heard and determined, . 7S2
Assistant clerks, to be also assistant clerks
of county commissioners, 612
appointed in counties of Middlesex, Sufiblk,
and Worcester, to continue in office,
and vacancies bow filk-d, 012
shall bo sworn before judge, and give bonds, 613
to perform, under direction of clerk, such
duties as arc not performed by clerk,
to whom he shall pay all fees, .... 014
to act as clerk, in case of vacancy in office, , C14
Salaries of, and how paid, 014
Clerk pro tempore, how appointed, when,
from sickness or other cause, the clerk*
is unable to discharge his duties, . . . 013
record of fact to be made by clerk when he
resumes his duties, 613
to be sworn, and give bonds, 013
when clerk is absent, how appointed, . . . 013
to be sworn, 613
compensation of clerk pro tempore, .... 014
Of Police Courts.
to be elected by certain cities and towns where
courts are established, 509
may be removed from office by supreme judicial
court, 553
vacancies in, how filled by election, 569
to be sworn, give bonds, and keep records, . . . 569
may be appointed by judges of those courts for
wliich the office of clerk is not estab-
lished by law, 509
may appoint assistants, with approval of judge
or court, 509
shall be responsible for, and may remove, their
assistants, 509
justice to act when no clerk is appointed, .... 571
exempt from serving as jurors, 679
on death, absence, or removal of, clerk pro tem-
pore to be appointed, 569
duties, compensation, and oath of clerks pro
tempore, 569
to make certain returns to secretary of com-
monwealth respecting criminal cases, 129
not to be retained as counsel in cases pending
or tried iu theii- courts, 569
to sign writs and processes, 571
to make warrants, processes, tax costs, receive
fees, fines, and costs, and make re-
turns, 572
to indorse on copies, their fees, 572
to account for fees, fines, and costs quarterly, . 572
to pay certain fines to cities and towns, .... 572
certain fees to parties entitled thereto on ac-
count therefor to coimty treasurer, . , 572
in Boston, to account with board of accoimts,
and pay to city treasurer, .... 573, 574
Salaries of, 572, 573
COAL. (See Charcnal.)
certain, to be sold by weight, 279
standard weight of ton to be two thousand
pounds, 279
weighers of, to be appointed, 279
not to be engaged in business of selling coal, 279
fees of, 279
950
INDEX.
COATr — continued.
certitioate of weight to be furnished to buyer, . 270
penalty for violation of these provisiouB, . , , -79
COAST SURVEY, by United States.
persons employed to make, may enter upon
lands, and make erections, &c., . ... 45
damages thus occasioned to be assessed by coun-
ty commissioners, 40
tender of, may be made, and effect of, ... 4(3
commissioners to give notice to, and hear, all
parties interested, 4G
to file report in office of clerk of courts, . . 40
either party may have a trial by jury, on peti-
tion filed within thirty days after next
term of court, 40
costs in such cases, 40
penalty for injuring, deiaeiug, &c., uny signal,
monument, &c., erected for, 40
CODICILS, included in the term " wills," .... 52
COCCULUS INDICTJS.
fish not to be taken by use of, 431
penalty for adulterating liquor with, 8li2
C OHABIT ATIOM".
lewd and lascivious, how punished, 818
penalty for, after divorce, 533, 534
COHASSET.
land in, ceded to United States, 45
COIN.
provisions of United States constitution re-
specting, 4, 5
may be taken on execution, and paid to credit-
or as money, 087
may be attached, 0:24
punishment for counterfeiting, &c., SOS)
COLLATERAL SECURITY.
when stock transferred as, debt to be specified
in transfer and certificate, 385
sale or disposal of, without authority, before the
principal debt becomes due, how pun-
ished, S03
penalty on consignee or factor for deposit or
pledge of, with intent, &:c., 803
how may be disposed of, by creditors of insol-
vent debtors, 584
bv pk-dj^ee, &c., 707-770
COLLECTORS.
of taxes may be chosen by towns, 104
unless specially chosen, constables to be, .... lOO
vacancies iu ofiicc of, how filled, 102
may, by vote of town, have powers of treasurer
in collecting taxes, 105
to give bond, HH
to collect taxes according to warrant, 81
to complete collection, though term of office ex-
pires, 81
to demand payment before distraining, 81
may collect forthwith, if assessors so order, . , 81
may collect, although error in name of person
taxed, 82
to keep lists of persons who have paid taxes,
and to give receipt upon request, ... 50
and deliver to selectmen, twice in each year,
under penalty, 50
duties of, to be expressed in warrant for collec-
tion, 79
to make discounts, as directed, 79
certificate to be exliibitcd to, by person claim-
ing abatement, 81
duties of, iu collection of school taxes, 224
to levy, by distress, &c., upon refusal to pay
taxes, 82
not to levy upon certain property, 82
COLLECTORS — continued.
to keep distress four days, and within seven
days sell by auction, 82
to post notice forty-eight hours before sale, . . 82
may adjourn sale once, not exceeding three
days, 82
to post notice of such adjournment, 82
how to make seizure and sale of shares, &c., in
corporations, 82
to return surplus, upon demand, if distress ex-
ceeds taxes, &c., 82
may commit to prison person neglecting four-
teen days al'tcr demand, if sufiicieut
goods not found, 82
and to dehver to jailer attested copy of war-
rant, with certificate of amount of tax,
&c., 82
if person committed Is unable to pay, may
be discharged, as committed on exe-
cution, 82
and notice to be given to collector or asses-
sors, 82
collector lialjle for tax, &c., unless person is
committed within one year, &c., un-
less, &c., 82,83
may demand aid, under penalty, if resisted in
exercise of his office, 83
may demand payment of persons removing
from precinct, and distrain, &c., or
issue warrant to sheriff therefor, ... 83
may sue iu his own name person removing, &c.,
after tax assessed, S3
may sue executor, &c., for tax on personal es-
tate of deceased person, 83
may, after demand, distrain, within nine months,
stock and produce, when estate taxed
to occupant who is not owner, .... 83
when demand, in such case, need not be
made, 83
may sell real estate for taxes fourteen days after
demand, 83
and after two years, if estate has not been alien-
ated, S3
to demand payment of resident mortgagee, be-
fore selling mortgaged real estate, in
case,ic., 83
and to demand of attorney of non-resident
owner or mortgagee, in case, &c., . 83, 84
not to advertise sale until two months after
such demand, 84
aflidavit of, to be evidence of demand, 84
to ativertise sale of real estate three weeks suc-
cessively, in what newspaper, Ac., . . 84
and state therein names of owners, amount of
taxes, &c., 84
to give old and new name of town, where name
changed within three years, 84
to post notice iu town similar to advertisement, 84
to sell by auction as much of real estate, or rents
and profits, as will pay taxes, A'C, . . 84
.Tnd when wliole lot is sold, to pay surplus to
owner on demand, 84
may adjourn sale from day to day, not exceed-
ing seven days in whole, 84
to give notice of such adjourmncuts, 84
to give deed to buyer, 84
contents of deed, 84,85
collector may sue mortgagee in possession of
real estate, for taxes, &c., due, . ... 85
to give receipt to mortgagee for taxes paid, . 85, 80
when treasurer is appointed collector, may issue
warrant for collection to sheriff, »fcc., . 80
INDEX.
951
COLLECTORS — continued.
collector to exiiibit accounts under penalty to
selectmen, &c., every two montlis, if
required, 80
to be credited with abatements, and amouut of
taxes of poreous committed, &c., . . . SO
how to supply dt'fU-ieney, if without bis own de-
fault, in state or county taxes, .... 86
liability of, if he UL-j^'lucts to pay state and county
taxes, 87
if insane, unable to discharge duty, absconds,
&c., selectmen may remove him, ... 87
if he dies before completing collection, select-
men may appoint temporary collector, 87
in case of death or removal of, executors, &c.,
to deliver to selectmen unsettled tax
lists, 87
compensation of, 87
duties of, in collecting taxes in watch and fire
districts, 175, 181
Of parishes, to be chosen at annual meeting-,
and sworn, 201
oatli of, by whom administered, 201
to be sworn forthwith if present, if not pres-
ent, to be notified, 202
if oath is not taken within seven days, so-
ciety to make new choice, 202
COLLEGES.
officers of, exempt from serving- as jurors, . . . C80
to impress upon students principles of piety,
temperance, ifcc, 21C
students in, not to be credited by innkeepers,
stable-keepers, &c., 457
professors of anatomy in, when to have for dis-
Rcflion body of person executed, . , . 7^1
COMMANDER-LKr-CHIEF.
go\ eriiur to be, 23
general powers of, 23, 24
may order out militia in case of war, insurrec-
tion, &c., 92, 109, 110
power and duty of, as to organizing, <lisband-
ing, &c., military companies, .... W, 05
aids of, 24, 95, 07
may arrange militia into divisions, brigades, &c., 04
to commission military officers, 24, 98
orders of, by whom distributed, 101
with advice of council, may sell certain militjiry
stores, 104
may detail an officer at any time to examine con-
dition of armories, 104
may order out any portion of militia for escort,
&c., 107
may reverse judgment of court martial, .... 119
may call boards of officers to settle military
questions, 120
COMMERCE.
provisions of United States constitution con-
cerning, 4, 5
COMMISSARY-GEISTERAL.
how appointed, 32
not to Ik- niember of legislature, 30
COMMISSIOI^ERS.
compensation of those appointed by governor, . 141
travelling exprnscs of, in certain cases, .... 141
To administer oaths to public officers, to
be appointed by governor, 131
may administer oath of office to all public
oflTu'era, except where different pro-
vision is made, 131, 132
To take depositions in other states, may
he appointed by governor, 1-12
tenure of office, 132
COMMISSIOIJrERS — continued.
how to be qualified, 132
to have official seal, 132
signature, oath, and impression of seal to
be filed in secretary's office, 132
powers and duties of, 132
official acts to have same effect aa if done by
justice of peace in this state, 132
to be furnished by secretary with instruc-
tions and forms, 132
To take ackiiowlede:nient of deeds, &c.,
in foreign countries, may be ap-
pointed by governor, 132
how qualified, 132
signature, oath, and impression of seal to
be filed in secretary's office, 132
powers and duties of, 132
effect of official acts the same as if done
by authorized officer in this state, . . 132
On repairs, &c., of state house, who to be, 134
powers and duties of, 134
To commit girls to state industrial
school, powers and duties of, ... . 414
Of wrecks, appointment, powers, and duties
of, 427-129
to make complaint for injury to property,
&c., of Humane Society, 800
To receive claims against estates of de-
ceased persons, 4'J0-400
To examine convicts in state prison al-
leged to be insane, ^vho to be, their
duty, and conipeusation, 878
To determine upon improvements to
meadows, swamps, marshes,
&c., appointment, duties, and powers
of, 751
compensation of, 751
shall make return of tliwr doings, 751
may apportion expense of improvements, 751, 752
may open floodgates, &c., on lands of
others, 752
may erect and maintain dams, 752
what notice to be given to owner of land, 752
damages therefor, how to be determined, , 752
persons aggrieved may appeal, 752
proceedhigs on such appeal, 752
appeal by owner of land, after notice that
commissioners intend to open flood-
gates, &c., on Ids land, 752
such appeal to suspend all proceeding's, . 752
To take ball, may admit to bail, 834
not in less sum than the amount ordered
on commitment, 834
To defend fugitives from service, &c., 740, 741
Of circuit court of United States, to hold
no judicial office under laws of this
state except that of justice of the
peace, 742
Respecting connecting railroads, to fix
compensation for depot accommoda-
tions, &c., 364, 365
Bank, 300-302
Insurance, 320, 321
PHot, 2S7
COMMISSIONERS OP nSTSOLVENCY.
when and how cliosen, :i8, 70
return of votes for, 59, CO
term of office, 71
number of, in each county, 71
in case of failure to elect, governor to order new
election, 71
vacancies, how filled, 72, 153
952
INDEX.
COMMISS'RS OF INSOLVENCY — con^mwerf.
to be »worD, 153
may be removed from office by supreme judicial
court, 553
may finish insolvency cases commenced before
tliera, COl
to return all papers in such cases to register of
probate and insolvency, 601
removed from charge of insolvency cases, or
dying, cases to be removed to court of
insolvency, GOl
may approve bail bonds, ti-Li
take atfiilavits for, and authorize arrest of
poor debtors on mesne process and
execution, 633
COMMISSIONS.
tenure of office to be expressed in, 27
how to be signed, attested, and sealed, . ... 30, 31
to t;ike depositions, when and how to issue in
criminal cases, 840
COMMITMENT.
of persons charged with bailable offences, fail-
ing to recognize as ordered, . S3I, 8:32, S33
of witnesses fjiiling to recognize as ordered, . . 8;J3
COMMON AND NOTORIOUS THIEF.
who to be deemed, and bow punished, 798
COMMON LANDS. WHARVES, &c.
suits agaiust proprietors of, summons how
served on them, 623
provisions rospeoting proprietors of, . . . . 379-384
COMMON CARRIERS.
railroads, Arc., to publish lists of unclaimed ef-
fects of passengers, 426
articles so advertised to be examined by select-
men, &e., 426-427
may be sold at auction by order of select-
men, &c., 427
net proceeds of sale to be piud into state
treasury, 427
penalty on, for neglect to advertise, 427
perishable articles transported by, may be sold
without advertising, upon notice to
owners, &c., 427
net proceeds to be paid to owner or con-
signee, 427
■when liable for loss of life of passengers, . . . . 704
to be punished by fine, 794
line, how recovered, and to whom paid, .... 794
how punished for gross carelessness in the com-
mon carnage of passengers, 794
COMMON DRUNKARDS.
hnw iirrested, scrured, and punished, .... S20, 821
COMMON LEWD, WANTON, AND
LASCIVIOUS.
persons in speech or behavior, how punished,
820, 821
COMMON NIGHT WALKERS.
liow arrested, secured and punished, .... 820, 821
conviction of, 821
may be discharged or bound out, &c., upon
n form, after conviction, 859,860
COMMON PILFERERS.
h(n\- arrested, secured and punished, . . . .820, 821
COMMON PIPERS AND FIDDLERS.
liow arrested and ]nuiislu'd, 820, 821
COMMON RAILERS AND BRAWLERS.
bow arrested and punished, 820, 821
COMMON RECEIVERS.
of stolon or embezzled goods, who to be deemed,
and bow punished, 801
COMMON SEWERS.
provisions respecting laying out, &c., . . . 253-255
COMMON UTTERER.
of forged and counterfeit bills, who to be deemed
and bow punished, 808
of counterfeit coin, §09, 8lo
COMMON VICTUALLERS.
provisions respecting, 455-457
COMMON WAY.
how construed, 5i
COMMONWEALTH.
territorial limits ol", how far to extend from sea-
shore, 43
sovereignty and jurisdiction, 43
jurisdiction of, concurrently with United States, 43
property of, except, &c., exempted from taxa-
tion, 74
banks, to loan money to, 309
treasurer, to give notice in writing to the pre-
sident or cashier of amount requii-cd, 309
not entitled to demand of any bank loans ex-
ceeding one-tenth of its capital, . . . 309
treasurer, to equalize the amount demanded
among the several banks, 309
banks, to pay two per cent, per mouth for re-
fusal, after thirty days, 310
treasurer, to institute an action to recover the
penalty, 310
information of intrusion to recover lands against
persons unlawfully entering or intrud-
ing upon, or holding same, . . . . 717-719
writs of entry, bow brought for lands recovered
by, upon inlbrmution of intrusion,
when parties arc not concluded by
judgment in such information, . . 718, 719
may purchase railroads after twenty years from
opening, 370
suits by, for recovery of limds, to be barred after
twenty years 776
except as to province lands and back bay
lands, 776
limitation of actions brought by or for benefit of, 779
costs in suits by, in its own belialf, 7S2
not to include travel of attorney-general or
district-attorneys, 782
in behalf of a private person, 782
judgment for costs against, liow to be paid. . . 782
COMMUTATION OP PUNISHMENT.
provisions respecting, 855, 856
COMPLAINTS.
for threatening to break the peace, liow made, . 827
when frivolous or malicious, complaiuunt to
pay costs, 82tJ
that a criminal ofl'ence has been committed, , . 831
proceedings in such case, 831
to recover damages for flowage of lauds, 502, 755, 759
what to contain, and procectUngs thereon, . 755, 759
not to abate by reason of death of any party, . . 759
nor be defeated by any errors of form, 759
new complaint may be brouglit, and wlicn, . , 757
To supreme court, for non-entry of appeals
and exception, 554, 555
for non-entry of probate appeals, 57
To superior court, for non-entry of api)eal8
from justices of the peace and police
courts, 6u.
COMPOUNDING FELONIES, &c.
Iiow punislied. 814
CONCEALMENT.
of property or of person, when cause for proceed-
ing against a debtor as an insolvent, 596
of property, &c., by a debtor after petition for
proceedings in insolvency is filed
against him, how punished, . . . 590, 597
INDEX.
953
CONCEALMENT — continued.
of effects and of insolvent debtors, persons
suspected of, how examined, .... 597
by mother, of death of infant bast.ird, how
punished, 818
of felonies, how punished, 814
CONDITIONAL SENTENCE.
in the case of common drimkards, night waUc-
ers, railers and brawlers, Ac, .... 820
how to be carried into execution, &c., . . 820, 845
CONDITIONAL PABDON.
provisions respectinf; 855, 856
CONFECTIONtERS.
not to ^dve credit to students under penalty, . . 457
CONFINEMENT.
of persons forcibly, ic, without authority, how
punislicd, 794
CONNECTICUT RTVEK.
provisions respecting floating timber, &c., in, . 424
CONSIGNEE.
of merchandise, when entitled to lien thereon
for money, «tc., advanced to shipper
though not true OAvner, 294, 295
contracts or pledges by, concerning merchan-
dise, &c., in his possession, to be
binding, 295
lien of, for expenses and charges not affected by
these proWsions, 295
penalty on for fraudulently pledging consigned
property, 803
or disposing of proceeds thereof, 803
CONSTABLES.
to be chosen by ballot at annual town meeting, 100, 101
if present, to forthwith accept or refuse the
office, 151
to be sworn, Kjl
certain persons exempted from Liability to serve
as. 103
penalty for refusing to take oath and serve as, . 103
in cities, may be removed for gross misconduct, 106
to collect taxes in certain cases, ... 79, 81, 83, 160
to serve process directed to them by county
commissioners, I45
may serve civil process upon giving bond, &c., 103, 16i
and writs and criminal process where their town,
&c., is interested, 164
may serve cert-iin notices, &c 104
returns of service to be prima facie evidence, . 104
time of flling bond to be noted by town clerk, . 164
remedies on bond, K^
may require aid in execution of their duties, . . 104
to serve all warrants, Ac, lawfully directed to
them by selectmen 164
to prosecute for violations of law respecting
Lord's day, &c., 104
may convey prisoners, &c., beyond limits of
town, 154
may serve warrants in certain eases, beyond
limits of to^vn, IO4
may serve process, in unincorporated place an-
nexed to town, 104
to ab.ate nuisance, &c., under direction of board
of health, 190, 191
to inquire into, &c., violations of Lord's day, . 434
in the execution of warrants in liquor cases,
protected, 44S
penalty on, for neglect to serve warrant in
liquor cases, 448
exempt from Ber\ing as jurors, 079, 080
to serve processes legally directed to them, &c., 618
shall not appear in court, &c., as attorneys and
counsellors, 164, 010 |
80* 120
CONSTABLES — emitmued.
nor make, nor fill up writs, declarations, or
processes, under penalty, 010
nor buy, nor procure by certain means,
claims for collection, tic, under pen-
alty, 018
to serve venires and summon jurors, . . . 681, 682
fees of, for official duties rso
when not entitled to witness fees in criminal
cases, , 786
to make conipLaint for injury to property, &c.,
of Humane Society, 806
penalty on persons refusing to assist, 813
falsely assuming to be, 814
penalty on, for neglecting or failing to execute
a warrant for simimouing coroner's
inquest, 848
CONSTITUTION OF MASSACHXTSETTS.
to be published with acts and resolves 50
analysis of, u
preamble 13
Declau.vtion of Rights.
natural and essential rights of all men, 14
right and duty of public worship, and establish-
ment of religious freedom, 14, 34
exclusive right of self government, unless ex-
pressly delegate 1 to United States, . . 14
magistrates and officers of government account-
able to the people 14
exclusive privileges only for services rendered
to the public 14
hereditary offices absurd and unn.atural, .... 14
right of people to institute and change govern-
ment, 15
rotation in office, 15
all elections ought to be free, 15
taxation to be by consent of the people or their
representatives, 15, 16
remedies for injuries to be free, complete, and
prompt, 15
rights of subject in prosecutions, 13
trial by jury, 15, 10
crimes to be proved in the vicinity where they
happen, 15
warrant to make search or arrest to be sup-
ported by oath, and accompanied with
a special designation of the object of
search or arrest, 15, 16
warrant not to be issued, except as prescribed
by law, iQ
liberty of the press not to be restrained, .... 16
right to bear arms for the common defence, . , 16
military power subordinate to civil, lo
moral qualifications for office, moral obligations
of lawgivers, &e., 16
right of people to instruct representatives, . . . 16
right of petition, 10
power to suspend and execute laws 10
freedom of debate, 10
frequent sessions of the legislature to be had, . 16
ex post facto laws prohibited, lo
no man to be declared guilty of treason or fel-
ony by legislature, 10
soldier not to be qu,artered in any house, in time
of peace, without the owner's consent, 16
how so quartered in time of war, 16
no person to be subjected to law martial, except
in the army, and navy, and mlhtia in
actual service, but by authority of the
legislature, ig
judges of the supreme judicial court to hold office
954
INDEX,
COWSTITtTTIOET OF MASS. — continued.
cUiriug goml Ijchiivior, and have sala-
ries established by standing laws, 17, 25, 27
opinions of, may be required by either branch
of the legislature, and the governor
and council, 27
separation of executive, judicial, and legislative
departments of the government, ... 17
" inhabitant " defined, 19
qualifications of voters, 13, 32, 38, 39
title of body politic, 17
General Court.
legislative dep.artment to consist o{ two branch-
es, and styled the General Court of
Massachusetts, 17
(governor to approve bills and resolves, or re-
turn to legislature with objections, . . 17
how bills and resolves to become a law, if the
governor objects, 17
if not returned within five days, 18, 32
courts may administer oath, 18
general court may constitute courts of rccord,&c., 18
may make laws not repugnant to the consti-
tution, provide for the appointment
of officers, and prescribe their duties,
impose taxes, &c., 18
how adjourned, prorogued, and dissolved, 23, 33
valuation of estates to be taken once in ten
years at least, 18
Senate, number of, and by whom elected,
IS, 19, 35, 39
first branch of the legislature, 19
districts for choice of, 19, 35, 39
votes for, by whom received, and return of, 19
by whom to be examined, cSic 20
how summoned to take their seats, .... 20
to be final judge of election, &c., of its own
members, 20
vacancies in, how filled, 20
qualifications of members of, 20, 36, 39
may adjourn not exceeding two d.ays, ... 20
shall appoint its own officers and make its
own rules of proceedings, 20
to try all impeachments made by house of
representatives, 20, 21
to be specially sworn for trial of impeach-
ments, 20
limitation of sentence by, 20
sixteen members a quorum, 21, 39
may punish for contemjit,
eases where rights and privileges of, arc
concerned, how tried, 22
Representatives in general court, by whom,
and when, chosen, .... 21, 34, 35, 36, 38
travelling expenses of, paid from state
treasury, 21
qualifications of, 21,38,39
how far privileged from arrest, 22
number and apportionment of, 38, 39
House of representatives may Impose fines
on towns that neglect to return mem-
bers 21
the grand inquest of the commonwealth, . 21
impeachments m.ade by, .and tried by senate, 20, 21
to originate all money bills, 21
may atljoum not exceeding two days, ... 21
one hundred members of, a quorum, ... 22, 39
judge of returns, elections, and qualifications
of its members, . 22
Xo choose speaker and appoint its own offi-
■cers,
CONSTITnTIOW OP 'M.A.SS. — continua!.
to establish rules of proceedings, 22
may punish for contempt, &c., 22
cases where rights and privileges of, arc
concerned, how tried, 22
KxEcuTivE Power.
Governor, style and title of, 22
to be chosen annually, 22, 34
qualifications of, 22, 23
oath of, 29,33
when and how elected, 22, 23, 34, 36
return of votes for, 22, 2;j
to be commander-in-chief, 23
may convene council, 23, 26
pardoning power vested in, with advice of
council, 24
judicial officers to be appointed by, 24
officers of the militia to be commissioned by, 24
money.to issue from treasury only on war-
rant of, except, &c., 24
salary of, 25
to be president of the council, 25
all publicboards to makequarterlyreturns to, 25
Council for advising the governor, ... 23, 20, 36
memliers of, and how chosen, 26, 36, 37
r.ankof, 26
proceedings to be recorded, &c., 26
to have full executive power, when offices
of governor and lieutenant-governor
are vacant, 26
Iiieutenant-governor, title of, 25
to be chosen annually, 25, 34
qualifications of, 25
oath of, 29, .33
when aod how elected 25, 34, 36
in absence of governor, to be president of
council, 25
to be member of council, except, &c., . ... 25
when to Ije acting governor, 25, 26
Secretary of commonwealth, how chosen, 37
records of the commonwealth to be kept in
office of, 27
may appoint deputies, 27
to attend the governor and legislature when
required, 27
vacancy in office of, how filled, 32, 37
Treasurer and receiver-general, how cho-
sen, ^7
vacancy in office of, how filled, 32, 37
limitation of office, 27
Judicial officers, tenure of office to be ex-
pressed in commissions, 27
may be removed by governor and council,
upon address of legislature, 27
Harvard college, powers, rights, and privi-
leges of, confirmed 28
gifts, grants, &c., to be held accordmg to
iutent of donors, 29
overseers of, 28
alteration of government of, may be made
by general court, 28
encouragement of literature, &c 28, 29, 38
Oaths and Subscriptions, Incompatibilitv of
Offices, Writs, Enacting Style, &c.. Commis-
sions, &c.
oath of office, 29, 33
affirmation allowed, 30
tests abolished, 33
incompatibility of offices, 30, 33
bribery, person convicted of, not to hold office
of trust or importance, -30
INDEX.
955
CONSTITUTION OP MASS. — coiiiinued.
inoiK-y, suniss of, how computed, 30
commissions, how to be signed, attested, and
sealed, 30, 31
writs, issuinfj' out of the clerk's office, how to
be eig-ned, sealed, and bear teste, ... 31
habeas corpus, writ of, benefit of, secured, &c., 31
continuation of former laws, except, »tc., ... 31
enacting style of statutes, 31
constitution to be enrolled ou parchment, and
published, 31
city charters, when may be granted by legisla-
ture, 32
notaries public, appointment, removal, and ten-
ure of office, 32
military officers, how commissioned and re-
moved, 24, 32
amendments to constitution, how made, .... 33
political year, commencement and termination of, 33
religious Ireedora established, 34
plurality of votes by the people to elect civil
officers, 30
election of state officers, time of, 30
school money not to be applied to sectarian
schools, 3y
sheriffs, registers of probate, commissioners of
insolvency, and clerks of courts, how
chosen, 3g
census of legal voters, and inhabitants, whcu to
betaken, 34,35,38,39
CONSTITUTION OF THE UNITED
STATES.
preamble, purposes of, •>
legislative powers granted by to vest in con-
gress, 2
to be the supreme law of the land, 8
powers not delegated nor prohibited to remain
in states, <)
ratification and mode of amendment of, .... S
articles of amendment of, U
Congress.
to consist of senate and house of represent-
atives, o
shall assemble at least once a year, and whore, . 3, G
each house sliall be the judge of the election,
&c., of its own members, 3
majority of each house to constitute a quorum, 3
smaller number may adjourn from day to day, . 3
may compel attendance of absent members, . , 3
may make rules, punish or expel members, . . 3
shall keep journal, and publish the same, except,
&c., 3
yeas and nays may be called by one fifth
present, 3
when cither house, during the session, may
adjourn, and to what place, 3
place, &c., of election of senators and repre-
sentatives to be prescribed by state
legislatures, 3
such regulations, except place of choosing
senators, may be altered by congress, 3
powers specifically granted to, 4, 5, 6, 7, 8
may make laws to carry out such powers, ... 4
what congress cannot do, 5, 9
may fix time of choosing electors of president
and vice president, 0
day to be the same throughout the United
States, G
may provide wlio shall act as president, in
case of the inability of president and
vice president, 6
CONSTITUTION OF U. S.^continned.
may vest appointment of inferior officers as
they tliiuk proper, &c., fi
may declare the punishment of treason, .... 7
attainder not to work corruption of blood
or forfeiture, except, &c., 7
may prescribe liow proof shall be made of acts,
&c., of states, 7
may assent to formation of new from old states, 8
may make needful regulations for jiroperty
and territory ol' the United States, . . 8
when may prepare amendments to the con-
stitution, 8
^hall be bound by oath to support the con-
stitution, 8
powers not granted reserved to states, 9
Members.
compensation of, 3
privileged from arrest, except, &c., 3
not to be questioned elsewhere for words
spoken in debate, 3
not to be appointed to certain civil offices, . . 3
persons holding office under the United
States not to be members, 3
House of Representatives.
members of, how and by whom chosen, .... 2, 3
qualifications, apportionment, and number, 2
vacancies in, how filled, 2
shall choose their officers, 2
shall have sole power of impeachment, . . . 2
shall judge of the elections, &c., of own
members, 3
quorum, adjournments, rules, journals, &c., 3, 6
compensation, privileges, disquulifications, . 3, 5
cannot be appointed a presidential elector, . 5
to originate all revenue bills, 3
two thirds of, may pass bill over president's
veto, 4
shall be bound by oath to support the con-
stitution, *i
Senate.
members, how chosen and classified, .... 2
qualifications, quorum, adjournments, rules,
journals, compensation, privilegeSjdis-
qualifications, 3, 5, fi
cannot be electors of president or vice presi-
dent, 5
vacancies, how filled, 2
vice president to preside over, but not to
vote, unless, &c., 3
president pro tempore, when to be chosen, , 3
has sole power to try impeachments, .... 3
proceedings in cases of impeachment, . , 3
may propose, &c., amendments to money-
bills, 3
two thirds of, may pass a bill over presi-
dent's veto, 4
may concur in making treaties, (i
may advise and consent to appointments by
president, 0
President.
his term of office, Ti
electors of, number, and how appointed, , . 5, (>
who cannot be, 5
how and where to meet, and choice of
president, 5, 9, 10
qualifications of president, G
provisions in case of vacancy in office of, . . C<
compensation and oath of, (i
powers and duties of, .......... 4, 0, ;
956
INDEX.
OONSTITUTION" OF D". S. — confijiued.
may veto bills, 4
proceedings in case of impeachment of, . , 3, 7
president cannot pardon in cases of impeach-
ment, G
Vice Puesident.
mode of election, qimlificatious, &c., , .5,6,9,10
to be president of the senate, 3
but to have no vote, except, &c., 3
when to be president, C
Judicial Power.
how vested, 7
to what cases it extends, 7, 9
to what cases it docs not extend, 9
tenure of office of judg;es, imd their pay, . . 7
originjil and appellate jurisdiction, 7
trial of crimes, where to be held, and by jury, 7
Judicial proceedings, &c., in each state, to
liave full credit in other states, .... 7
States.
individual, each to have republican form of
government, S
to be protected against foreign invasion and
domestic violence, 8
cannot be sued, 9
powers not delegated, nor prohibited, re-
main to, 9
prohibited from the exercise of certain pow-
ers, 5
privileges and immunities of citizens of, . . 7
full faith and credit to he given to acts, &c.,
of. 7
admission of new states, provisions respect-
ing, S
members of legislatures of, to be bound by
oath, &c., to support the federal con-
stitution, 8
judges in, to be bound by federal constitu-
tion and laws, &c., S
MisrKLLANEOirs Provisions.
Adjournment of congress or either house, . 3
Amendments, how to be made, S
ai-tioI<'R of, 9, 10
Arms, right to keep and bear, not to be in-
fringed, 9
Army, congress has power to raise and sup-
port, 4
Arrest, members of congress privileged from, 3
Attainder, no hill of, to be passed, 5
of treason not to work corruption of blood,
except, &('., 7
£ail, excessive, prohibited, 0
Bankruptcy, congress may establish system
of, 4
Census, United States, when to be taken, . . . 2
Citizens of states, privileges and immunities
of, 9
Coin and coining, provisions respecting, . . 4, 5
Commerce, congress may regulate 4, 5
Copyright, congrosa may grant by law, ... 4
Counterfeiting, congress may punish, .... 4
Crimes, where and how to be tried, 7, 9
jiorsons not to be held to answer for, unless, 9
those charged with, to have trial by jury,&c., 9
Debts, contracted before the adoption of the
constitution, to be valid against the
United States, 8
Duties, authority of congress to establish, . . 4, 5
Excessive bail, fines, and punishments, pro-
hibited, 9
Sz post facto laws not to be passed, .... 5
CONSTITUTION OF U. S.~cojitinued.
Fines, excessive, prohibited, 9
Freedom of speech and press and of petition
secured, 9
Fugitives from justice, provisions respecting, 7, 8
from service and labor, 7, 8
Grand jury, presentnu-nts and indictments by, 9
Habeas corpus, writ of, not to be suspended,
unless, &c., 5
Immigration of certain persons, provisions
respecting, 5
Impeachment under federal constitution, . . 2
bouse of representatives has sole power of, 2
senate has sole power to try, 3
proceedings in trials of, 3, 7
when president is tried, 3
judgment and sentence in cases of, 3
those convicted still liable to indictment, . . 3
president cannot pardon in cases of, ... . 6
Importation of certain persons, provisions
respecting, 5
Jury, trial by, secured to those charged with
crimes, 9
in suits at common law, when, &c., .... 9
Measures and weights, standard may be
fixed, 4
Militia, provisions respecting the arming and
disciplining of, 4, 9
Money may be coined, and value regulated, . , 4
counterfeiting of, may be punished, .... 4
Naturalization, uniform rule of, may be es-
tabhslied, 4
Nobility, titles of, not to be granted, 6
Navy, power of congress over, 4
Officers not to accept presents, titles, &c., , . 5
Petition, right of, secured, 9
Post offices and roads may be established, . 4
Presents, itc., officers not to receive, 5
Press, freedom of, secured, 9
Private property not to be taken for public
uses without, &c., 9
Punishments, excessive, prohibited, 9
Quorum of senate and house of representa-
tives, 3
of senate for choice of vice president, ... 10
of the house of representatives for the
election of president, 10
Ratification of constitution and of amend-
ments, 9
Religious establishment prohibited, 9
Revenue, power of congress to raise, . . . 3, 4, 5
Searches and seizures, freedom from uurca-
sonable, 9
Speech, freedom and right of, secured, .... 9
Soldiers not to be quartered in any house with-
out consent of the owner, 9
Taxes, direct, how to be apportioned, . . . 2, 4, 5
Tender, only gold and silver coin to be made
a legal, 5
Treason, how defined and punished, 7
person not to be convicted of, uuloss, &c., . 7
attainder of, not to work forfeiture, &c., . . 7
Treasury, money how to be drawn from, ... 5
Treaties, how may be made, 6
to be the supreme law of the land, 6
individual states not to make, 5
Trial by jury secured in trials for crimes, . . 9
in suits at common law, 9
Veto of president, 4
two thirds of both houses may pass bill
over, 4
"Warrants not to issue, except, &c., 9
INDEX.
957
CONSTITUTION OF U. S. — continiteJ.
"Weights and measures, standard of, may
W t-st;il-lisli0(l 4
Witness, pcrsuu cUary;ed vrith crime may smn-
mon, 9
may be confronted vrith those against him, . 9
no one compi-Uofl to be against himself, . . 9
7eas and nays, when to be entered on jour-
nal, 3
AMEND5IEXTS.
how made and ratified, 8
articles of, wlien made and ratified, ... 9, 10
religious establishment prohibited, .... 9
freedom of speech and of the press, imd
riifht of petition, secured, 9
right of people to keep and bear arms not to
be infringed, 9
soldiers not to be quartered in any house,
unless, &c., 9
security from unreasonable searches and
seizures, 9
warrants not to issue but on probable cause,
i:c., 9
persons not to be held to answer for crimes,
unless, &c., 9
to have trial by jury ; to be confronted
with witnesses ; to compel the attend-
ance of witnesses, and to have counsel, 9
not twice to be put in jeopardy, 9
not be compelled, in a criminal cjise, to be
a witness against himself, , 9
nor be deprived of property but by pro-
cess of law, 9
private property not to be taken for public
use without just compensatiou, ... 9
trial by jury secured iu suits at common
law, when amount in controversy is
over twenty dollars, 9
excessive bail, fines, and punishments pro-
hibited, 9
rule of construction as to powers granted, . V
powers not delegated nor prohibited to re-
main to the states, 9
judicial power does not extend to suits
against a state, 9
manner of choosing president and \ice
president, 9, 10
CONStn,.
of United States, in a foreign country, when
may take acknowledgment of deeds, . 4fi"
may solemnize marriages, 531
CONTEMPT.
magistrate, neglecting or refusing to return
recognizances, Ac, to court, may be
proceeded against by attachment, . , 835
in refusing to serve, &c., habeas corpus, how
punished, 738
punishment for by governor and council, senate,
and house of representatives, 22
courts martial, 119
county commissioners, 145
by justices of the peace and police courts, . 610
by judges of probate courts in like manner
as by superior court, 57"
of courts of insolvency, 581
when witnesses fail to appear before any
court, justice, referee, master in chan-
cery, &c., on being summoned, .... 673
CONTESTED ELECTIONS.
committee to certify necessity of attendance of
wltuesses in, 787
CONTINGENT KEMAINDEH.
when may be sold, A:c., subject to contingen-
cv, 472,473
CONTINUANCE.
of actions, may be made by agreement of par-
ties, 660
may be ordered to enable absent parties to de-
feud, or cither party to set off judg-
ment or execution, 646
may be made by any otiier justice, when the
justice before wliom a case is return-
able, &c., fails to attend, 605
of petitions and writs of partition to enable ab-
sent persons interested to appear, 699, 700
court may impose costs as condition of allowing, 782
CONTRACT.
what, not valid unless iu writing, 527, 528
by spendthrifts, 544
on gaming consideration, 436
on consideration of liquor illegally sold, . . 448
for sale of certain stocks void, unless vendor is
owner, 528
may be made by married women in relation to
their separate property 538
between parties before marriage, how made, &c., 541
when may be made by towns, 158
on account of state prison, how to be made, . , 873
suits thereon, . . , 873,874
no officer to be interested therein, 874
to be executed on Sunday and public holidays,
when pertbrmable, 293
made by or with aqueduct corporation, to remain
in force after its dissolution, 375
liability of shareholders in such case, 375
Action of, substitute for actions of assumpsit,
covenant, and debts, except for penal-
ties, 653
forms of declaring in, 653-4355,663-065
not to be joined with actions of tort, but a
count in contract and ooimt in tort for
same cause of action may in certain
cases be joined, 654
cases in equity may be commenced by, . . . 559
Specific performance of written, may be
enforced in equity by supreme court, 559
for conveyance of real estate made in writ-
ing by a person subsequently put
under guardianship or deceased, how
enforced by probate court, &c., . . . 575
"Written, how declared on in suits, 651
persons severally liable on, may be joined in
same action, 654
CONTRIBUTION.
by heirs and legatees, &c., when property is
taken, &c., to pay debts of deceased,
&c., 479,508
by posthumous child in like case, 479
by heirs, &c., for payment of taxes on real estate
of deceased persons, 75
proceedings in cases for, 480
between officers and stockholders liable for
debts of corporation, »tc., 386
by persons summoned in trustee process who
pay more than their proportion of
costs, 728
Suits for, may be brought in supreme court in
equity, 559
between heirs, devisees or legatees liable for
debts of deceased, or other persons
hable for same debt, 559
where two or more parties have distinct
rights which cannot be adjusted at law, 559
958
INDEX.
CONTTSEE AND CONUSOR.
iu reco^iizanees for ik-bts, provisions concem-
iD^, 770, 772
(,SV(' Recognizmices for Debt.)
CONVEYAJfCE OF PUBLIC LAJSDS.
to be subjeet to approval of governor and coun-
cil, 55, 139
CONVEYANCE OF BEAIi ESTATE.
provisions rcspoctiug, 465-407
how made by towns, 158
by counties, 1-H
by corporations, 385
by married women, 538
incumbrances in case of, to be made known to
grantee, 407
when mcumbrance exists, liability of grantor, . 407
(See Deed,)
penalty for making, of encumbered real estate,
mthout disclosing ineumbrajice, . . . 802
of attached real estate, without notice, . 802, 803
CONVICTIONS.
of persons indicted, what necessary to, .... 790
to precede punishment, 790
of part, and acquittal of part of offence, effect of, 842
CONVICTS.
provisions for classifying, &c., 858, 862
In th,e state prison, provisions respecting,
870-.'*r5
Insane, provisions concerning, fsr.s
Poor, dischar»re of, provisions concerning, . . 878
COPARTNERSHIPS.
suits in equity between copartners may be
brought in supreme court, and receiv-
ers appointed, 559
embezzlement by clerks and servants of, ... . 800
except by apprentices and persons under
sixteen years, 800
{See Partnerships.)
COPYRIGHT,
congress may grant by law, 4
CORN. (See Grahi.)
regulations respecting weight and sale of, . . . 205
punishment for cutting do\vn, &c., any kind of, S05
CORONERS.
appointed by the governor, 24
to be sworn and give bond, 152
bonds to be exaiuined annually, by superior
court, and new ones required if insuf-
ticient, 152
sureties on, how discharged, 152
penalty for neglect to give, 152
suits on, how brought, itc, 152
to serve processes legally directed to them, &c., OlS
directed to them by county commissioners, 145
when sheriff is interested, 152
may serve process when their town is a party, 152
to perform duties of sheriff, when sheriff's oflSce
is vacant 152
not to act as attorney, &c., 151, 153, CIO
not to advise suit, &c., under penalty, . 151,153,616
nor buy, nor procure by certain means, claims
for collection, &e., under penalty, . . OlS
may require aid in execution of official duty, in
criminal and certain other cases, . 151, 153
exempt from serving as jurors, 679
jurors before, not sulyect to provisions respect-
ing other jurors, 684
fees for official duties, 786
when not entitled to witness fees in criminal
cases, 786
refusing to assist, how punished, 813
falsely assimiiug to be, how puuished, . . * * . S14
CORPORATION, SOLE.
limitation of entry, by successor after disseisin
of, 775
CORPORATIONS .
petitioners to geueral court, for alteration of
charter, to publish notice thereof, . 47, 4S
not to be taxed for parochial purposes, 202
moneyed, shares iu, taxable, 74
funds of, for support of schools, to be held as
heretofore, 217
bonds, &c., of, negotiable, 293
real estate, and machinery of, to be taxed in
school districts where situated, . , , 223
seizure and sale of shares in, for non-payment
of taxes, how made, 82
general powers of, when other special provision
is not made, 3S4
time of organization of, limited to two years
from passage of charter, 384
first meeting of, how to be called, .384, 385
notice of first meeting of religious societies, may
be affixed to the door, or some other
conspicuous part of their meeting-
house, 385
when meetings may be called by a justice, &c.,
what may be done at such meetings, . 385
at such meetings shall elect officers to fill vacan-
cies, and act upon other business as at
regular meeting, 385
may by their by-laws, &c., determine manner of
calhng meetings, &c., 385
may annex penalties to by-laws, &c., 385
•may convey lands, 385
shares in not to be issued at less than par value,
unless by special autliority, 385
list of stockholders iu, to be kept by officer and
exhibited upon written application to
any stockholder, 385
penalty on officer of, refusing to exhibit list of
stockholders, 385
executor, «fcc., may vote as stockholder, .... 385
records of transfers of stock, to be made and
kept in the state, &c., 385
in transfers of stock as collateral security, debt
intended to be secured, to be described
in deed of transfer, 385
certificate of stock issued to pledgee, or holder
of such collateral security, to express
on the face of it, that the same is bo
holden, and name of pledgee, &c., . . 385
records of transfers, to be exhibited upon written
request of creditor, under penalty, 385, 386
foreign corporations having property in this state
liable to be sued, &c., 386
service of writ, how to be made, 386
for manufacturing, mechiuiical, mining, or quar-
rying business, &c., stockholders in,
individually liable, for debts to opera-
tives, &c., 386
suit in equity in supreme court may be main-
tained against officers, &c.,wheu liable, 386
executors, &c., not personally liable as stock-
holders, but estates liable, &c., .... 386
to publish in newspapers once iu five years, list
of unclaimed dividends and balances, . 386
certain, to register names, &c., of stockholders,
and not to issue certificate until pur-
chaser informs of his place of resi-
dence, &c., 386
to make return to assessors, of names of
stockholders, number of shares be-
longing to each, &c., 380
INDEX.
959
CORPORATIONS - continued.
banks and insurance companies to make like re-
turns to asseesore, Ac, 387
penalty on for neglect, or making false returns, 387
shareholders in, penalty on, for fraudulent trans-
fer of shares to avoid taxation, .... 3S7
warrants of distress may issue against, for dam-
ages assessed by county commission-
ers or jury, &c., 387
franchise of a turnpike or other corporation,
authorized to receive toll, may be at-
tached, &c., 387
officer to leave copy of process, &c., with the
clerk, treasurer, or some one of the
directors, &c., 387
francliise, &c., may be sold on execution, . . . 387
mode of sale, &c., 387
sale may be at^joumcd, &c., 387
who to be deemed the highest bidder at such
sale, 38S
officers return on execution or warrant of dis-
tress to transfer to purchaser rights,
&c., of corporation so far as relates
to right of demanding toll, 388
officer immediately after sale to deliver to
purchaser possession of tollhouses,
&c., 388
purchaser of franchise, &c., to have same reme-
dies as corporation, &c., 388
liabilities of corporation to continue after sale
of franchise, 388
francliise may be redeemed by corporation at
any time within three mouths, Ac, • • 388
all proceedings respecting attachments, »S:c.>
may be had in county in which presi-
dent, treasurer, clerk, &e., reside, . , 388
may be dissolved by supreme judicial court, on
petition of majority of members, in
number or interest, 3.SS
so dissolved, to be deemed extinct, 3*8
to continue three years after charter expires, to
close their concerns, 38S
but not for the business for which they were es-
tablished, 388
when charter expires, or is annulled, or the cor-
poration is dissolved, the supreme ju-
dicial court, on petition, &c., at any
time within three years may appoint
receivers, &c., 3S8, 389
powers of such receivers to continue as long as
the court deems necessary, 389
the court to have equity jurisdiction, &c., , . . .389
receivers to pay debts and distribute surplus, . 389
corporations now existing, provisions concern-
ing, 389
every act of incorporation passed after March 11
1831, to be subject to amendment, &c., 389
actions, by and against, in what counties to be
brought, 621
how summoned in suits against, 023
when parties to suits, how officers of may be in-
terrogated by opposite party, .... G59
agents and officers of, may, uponr being author-
ized, sign and make oaths to all pre-
cepts, answers, &c., required in suits
at haw, CG3
when execution against, has been satisfied by
levy on property of stockholders, and
the property or damages have been re-
covered back, how new execution
may be obtained, 686
may be summoned in trustee process,
CORPORATIONS — <-OH/in««i.
how may appear, answer, and be examined in
trustee process, 722
shares in, how attached, taken on execution, and
sold, 627, GS7, (M), 090
recording officer of, to give certificate of shares
held by debtor, upon officer exhibiting
a writ on execution, 627, 689
dividends of, made after attachment of shares,
held thereby, 627, 690
when entitled to costs for travel how to be com-
puted, 783
fraudulent over issue of stock in, how i)un-
ished, 801
fraudulent issuing, or transferriug, or signing
certificates of stock, with intent, . , . 801
false entries in books of, of transfer of stock, . 802
omitting to make true entry of transfer, .... 802
on trial of such case, book to be evidence, . . . 802
when indicted and served with process, failing
to appear, may be defaulted, 847
in such cases the charge to be taken to be true,
and judgment to be rendered, .... 847
warrant of distress may issue for the penalty
and costs, 847
In Insolvescv.
proceedings by, how commenced, 593
against for not dissolving attachments, and
other causes, 599
warrant to contain order requiriug messenger
to state that corporation is forbidden
to make contracts, 598
claims may be proved at any time before mak-
ing final dividend, 598
officers of, to furnish schedules and do other
acts, in like m:mner as debtor, .... 598
salcof franchises of such as ai-e authorized to
take tolls and proceedings thereaf-
ter, 598,599
damages against, for land and materials taken,
preferred claims, 599
discharges not to be granted to officers or mem-
bers of, 599
mortgages by, not invalidated by insolvency
proceedings, 599, GOO
foreclosed pending proceedings and before
choice of assignee, may be redeemed
by assignee within sixty days, .... 599
proceedings to be generally like those in case of
insolvent debtury, 598
CORPORATIONS ORGANIZED UNDER
GENERAL STATUTES.
1. COIMPAXIES FOR CUTTING AND SELLING ICE, OR
FOR Mechanical, Mining, Quakrvlng, and
Manufacturing Puefoses.
throe or more persons may become such corpo-
ration, 341
not to carry on business of distilling or manu-
facturing intoxicating Uipiors, .... 341
to remain a corporation under any name, &c.,
not previously in use by other corpo-
ration, &c., Ml
purpose for, and place within which established,
to be specified in articles of associa-
tion, 341
not to direct its operations, or appropriate its
luuds, to any other purpose, 341
first meeting to be called by notice of one or
more persons named in agreement, . . 341
such notice to state time, place, and purposes of
meeting, 311
960
INDEX.
CORPOHATIOWS, &c. — contimte(l.
cupy or uotic-c- to be ylvon to each member seven
days at least before meeting, or pub-
lished in some newspaper, &c., .... 341
organization, and all proceeding's, «S:c., may be
confirmed, &c., 341
to what provisions liable, 342
secretary of the commonwealth to prepare, and
cause to be printed, annual abstracts,
for legislature, 34-2, 343
Officers, how chosen, 330, 312
liability of, 342
liability of, how may be limited, 342
Capital stock of, how fixed, increased, and
diminished, 342
not to be less than five thousand, nor more
than five hundred thousand, dollars, , 342
no share to be issued for less than par value, 342
certificate of, &C., to be made, published, &c.,
before commeneing business, 342
when increased or reduced, certificate to be
made, &c., 342
Stockholders, if doubts arise whether corpo-
ration is legally organized, &c., may
by vote confirm organization, &c., . . 341
by BO doing, and depositing copy of vote with
clerk of town, Ac, and with secretary,
such corporation to bo held legal, &e., 341
before commencing business, certificate of name,
and purpose of association, &c., to be
published, and copy filed with city or
town clerk and secretary, 342
Biniilar certificate to be made, &c., when capital
stock and shares are increased or di-
minished, 342
certificate of capital, when paid in, to be made,
signed, &c., by president, treasurer,
• &e., and recorded in registry of
deeds, 338, 342
to be made and recorded when slock is in-
creased or diminished, 338, 342
organized for manufacture of cotton or woollen
goods, may manufacture certain other
goods, 340, 341, 343
these provisions may be amended or repealed
by legislature, 343
2. Gaslight Companies.
how organized, powers of, &c., 343
(See Gaslight Companies.)
3. BAXKS.
how organized, and provisions respecting, , 313-316
(See Banks.)
COSTS.
Im Civil Cases.
prevailingparty entitled to, except, &c., .... 780
In personal actions commenced in the su-
preme judicial court or superior court,
except replevin, 780
when plaintitf recovers only twenty dollfirs, 780
when plaintifTs claim is reduced by set-ofl", . 7S1
in actions whieli might liave been been joined, . 781
where there are several counts for distinct
causes of action, and verdicts for
plaintiff on some, and defendant on
others, 781
of former suit to be paid, or proc^-edings to be
stayed, or dismissed, 781
In actions at law in tlie supreme judicial
court. 781
when pbiiutifT does not recover three hun-
dred dollai's, 781
COSTS — continued.
when defendant brings money into court In
satisfaction of the damages, 781
of copies, when cases are reported, or appeals
or exoi^ptious taken to be entered in
supreme court, bow paid and taxed, . 5G3
on plea of uon tenure, disclaimer, &c., allowed
only after plea filed, 093
executors and administrators, when and how
liable for, &4S, (151,652
paid by executors and administrators, when
may be allowed in their accounts, . . 651
m cases before police courts, how taxed and paid, 572
may be awarded, and execution therefor issued
by probate court, 576
defendant not entitled to, when discharged
solely by insolvency, 780
is entitled to, when issue joined upon dis-
charge is found for, 780
on proceedings to assess damages by L'uited
States coast survey, 46
accrued before an abatement of taxes is made,
to be paid by applicant for abatement, 79
recognizances for, in applications for laying out,
&c., higliways, «fcc., 232, 241
in triids by jury of questions of damages, &c.,in
laying out highways, <S:c., .... 235, 241
how paid, in such ceases, 237, 239
questions of, in such eases, to be determined by
supreme court, t 237
on petitions for alimony, 535
in real actions, full costs recoverable, 781
in complaints for flowage, 755-759
in actions of contract to recover damages
awarded by jury in cases of flowage,
phiiutifT to recover full, thougli ver-
dict does not amount to twenty dol-
lars, 757
in writs of quo warranto, 744
on certiorari, at discretion of court, 743
provisions as to payments of, on scire facias,
when bail surrender their principal, . 835
when bail cannot surrender their principal, by
act of God, &c., 835
in proceedings to enforce liens, .... 700, 769, 770
for travel, not to be taxed in suits on forfeited
recognizance, S35
commonwealth to have in certain cases, on peti-
for review of judgment on forfeited
recognizance, 836
in replevin, full costs recoverable, 781
in petition and suits for partition, . . . 70(i, 703, 704
in suits for redemption and foreclosure of mort-
gages, 712, 714
in cases of information for intrusion, 719
in trustee process, 727, 759
on appeal from justices of the peace, or police
court, 780
if phiintilT appeals and fails to recover more
tbau in tlie court below, 780
on petitions for certiorari, mandamus, quo war-
ranto, &c., 781
in suits in equity, for discovery only, and not
for a decree, 781
and in such suits where a decree is prayed
for, if court deems the prayer frivo-
lous, or a pretence, »fec., 782
in equity suits and civil proceedings, where no
express provision is made, 782
to be wholly in the discretion of the court, . 782
but not greater than for similar charges at
common law, .^ 783
INDEX.
961
COSTS — continued.
in civil Buits by the commou'n'ealtb, in its own
behalf, 782
in such suits in behalf of a private person, . 782
judgment for costs ag-aiast the commonwealth,
how to be paid, 782
how to be taxed for the commonwealth, .... 782
travel not to be allowed the attorney-gen-
eral or district-attorney, 782
power and discretion of arbitrators and referees
not hereby limited, 782
nor of any court to impose or refuse costs
as the condition of an amendment,
continiiance, &c., 782
How to be taxed, and items of taxation, 782
full, double and treble, when and how to be
taxed, 777, 780, 781, 788
notice of taxation, when to be given to ad-
verse party, 782
notice to the attorney equivalent to notice
to the principal, 782
appeal from the taxation of costs, 782
how conducted, 782
judgTucut in such cases when to be consid-
ered as rendered, 782
when appeal is by person who is to pay the
costs, the other party may have ex-
ecution before the appeal is settled, by
giving bond, &c., 782
costs of the appeal, 782
how may be collected, 782, 783
attorney's fee in supreme judicial court or
superior court when issue is joined, . 783
in all other cases, 783
dcflaration in each writ in any court, .... 783
term fee iu supreme judicial court or supe-
rior court, 783
only one where defendant is defaulted
without appearing, 783
attendance before justice of the peace or
police court, 783
for three days only allowed in cases of de-
fault 783
nor after the day the case is finally dis-
posed of for the term, 783
such day to be entered on the docket, . . 783
travel, in any court or before a justice of the
peace, 783
not to be allowed for more than eighty
miles out and home, 783
unless more than forty miles is actually
travelled, 783
allowed to corporations, when they are en-
titled to costs, 783
to be computed from its principal place
of business, 783
not to be allowed to commonwealth for
any attorney for commonwealth, . . , 782
In insolvency cases, contested before su-
prenie or sujierior court, or court of
insolvency, may be awarded to either
party, COO
execution for such costs may be issued, . . GOO
before courts of insohency, costs of court,
messenger, &c., amoxmt of, and how
allowed and paid, 600
costs of attachment, how preferred, . . 595,600
(See Fees.)
In Crijiinal Cases.
two thirds of, to be paid by state, and one third
by county, , 851
81 121
COSTS — contimied,
to include grand, and traverse jurors* fees, , , . 851
how taxed before justices of the peace, 851
on complaints for sureties of the peace, .... 828
where warrant is served, where it is not
served, 851
where justices of the peace exercise final ju-
risdiction, 851
taxation to be revised in superior court, .... 851
when person so sentenced pays his fine and
costs, the justice may retain his own
fees, and pay the residue to persons
entitled, 851
otherwise to county, city, or town, 851
how may be certified, 851
how taxed in supreme judicial court or superior
court, 851
to be taxed by prosecuting officer, and certi-
fied by the clerk, 851, 852
duty of clerk as to transmitting bills of
costs, 852
to make statement to state treasurer as to
fines, &c., 852
eherifi" alone, or deputy, or jailer, authorized to
receive, 852
must pay to county treasm'cr in thirty days,
without deduction 852
remedy against sherifi" for neglect, 852
permitting an escape of person under sen-
tence for, makes the sheriff liable for
costs, 852
county treasurer to transmit sworn accounts of
costs twice each yeiir to the state au-
ditor, 852
form of accounts ; penalty for neglect, . . . 853
certificate of clerk of court to be sufficient
voucher for all sales taxed for costs,
or allowed to prosecutors, 851
accounts to be audited by auditor, 852
bulauee found due, to be paid to or by county
treasurer, 852
to transmit annually to governor and council a
general account of moneys received
for costs, &c., 853
and st-atements of sums due for costs to or
from any person, 853
to pay over to persons entitled, if demanded
within tliree years, 853
penalty for neglect, 853
discharge of poor convicts for non-payment
of, 878,879
in cases of seizing and libelling forfeited goods,
773, 774
of magistrates in criminal cases may be disal-
lowed in certain cases, by district-at-
torney, with approval of the court, . 788
witnesses in criminal trials attending in two or
more cases, to have their fees appor-
tioned, 788
when not to have any fees allowed, .... 788
coirNciii.
for advising the governor, 23, 26, 36
may be convened by governor, 23, 26
governor to be president of, 25
lieutenant-governor to be member of, except,
&c., 25
number, and when and how chosen, . . 26, 36, 37, 62
return of votes for, 59,60
rank of members of, 20
vacancies wlien and how filled, 37
proceedings to be recorded, Ac, 26
to have full executive power, when offices of
9G2
INDEX.
COUNCIL — contin7ted.
governor and lieutenant-governor arc
vacant, 2G
members of, exempt from serving as jurors, . . 680
oath of members of, 2!}, 33
certain officers not to be members of, .... 30, 33
qualifications of members of, 37
compensation of members of, 128
two members of, may administer oaths of office
to pubhc officers, 131, 132
governor and, may puuiah for contempt, .... 22
districts for choice of members of, C2
committee of, to examine books and accounts of
auditor, 130
COUIirSEL.
may be assigned by one judge, to prisoner in-
dicted for a capital offence, 553
persons accused, entitled to, 9, 15, 790
not more than two, for a party to a suit, with-
out leave of court, 615
COUNSELLORS AT LA'W,
and attorneys at law, distinction of, abolished, . C15
(Sci? Attorneys.)
COUTSTTEKFEITING,
congress may punish, 4
private labels, stamps, and trade marks, Iiow
punished, 802
selling goods, knowingly, with such marks, and
not disclosing, 802
public records, &c., with inteut to defraud, , . 807
knowingly uttering counterfeit instruments, . 807
notes of state treasurer, &c., 80S
bank bills, &c., 8'i8
having in possession with intent, .^c, ten or
more counterfeit bank bills, &c., . . . wis
knowingly uttering counterfeit bills, Sas
effect of second conviction for, and three con-
victions at same term, 608
bringing into state orhaving in possession coun-
terfeit bills, A-c, with intent to pass, . 808
engraving plates, &c., or making paper for
counterfeiting bills, A-c, 808
having such plates, &c., or paper, &c., in pos-
session, 80S, 809
in prosecutions for counterfeiting, &c., bank
bills, when testimony of president and
cashier may be dispensed with, .... 809
how bank bills may be shown to be coun-
terfeit, 809
for counterfeiting, &c.. United States secu-
rities, Arc, hdw securities may be
shown to be counterfeit, 809
intent to defraud, how may be alleged and
proved, 809
Gold and silver coin, how punished, .... 809
having in possession ^vith intent, &c., two
or more pieces of false coin, 800
any number of pieces less than ten, . . . 809
effect of second conviction, or of three convic-
tions at same term, 809, 810
making, mending, or knowingly Iiaving in pos-
session moulds or tools for counter-
feiting coin with intent, &c., 810
Sheriff to seize counterfeit bank bills, plates,
tools, &c., and court shall order them
to be destroyed, 811
Recompense to prosecutors of counterfeiters
and counterfeiting, 811
COUNTS.
■what may be joined, 654
costs, where some are found for plaintiff and
some for the defendant, 781
COUNTIES.
boundaries, rights, duties, powers, privileges,
&c., to remain as now established, . . 144
bordering on sea, boundaries of, 43
offences committed within one lumdred rods of
boundary lines may be tried in either
county, 838
Bcparated by waters within the state, to have
concurrent jurisdiction over such
■waters, 43
to continue bodies politic for certain purposes, . 144
property formerly conveyed to, to be held as
county property, 144
in Suffolk, to belong to Boston, 144
lands of, how may be conveyed, 144
to provide court houses, j;uls, &:c., except in
Suffolk, J44
to provide fire proof offices, Ac, 144,198
speciid provision for Dukes county, 144
maps of, to be corrected from time to time by
county commissioners, 144
of Suffolk and iliddlcsex, to have common juris-
diction over part of Charles Kiver, 144, 145
Suffolk, to have concurrent criminal jurisdiction
■with other counties, over certain isl-
ands and waters, 145
accounts, receipts, and expenditures of, to be
allowed and settled by county com-
missioners, 145
Taxes, estimate of, to be made by county com-
missioners, 145, 146
and to be apportioned by them according to
the last state valuation, 14G
and transmitted to secretary, &c., 140
account of receipts and expenditures to be
published annually, . 146
Debts, commissioners may renew, &c., and
contract new at the rate of tliirty dol-
lars for each one thousand inhabitants, 140
damage to county property, by whom prose-
cuted, 149
liability of, for neglect of commissioners to fix
permimeut bounds at angles of high-
ways, &c., 244
actions by and against, where to be brought, . . 621
how summoned, in suits against, 622,623
COUNTY COMMISSIONERS.
when and how chosen, and term of office, . . 70,71
number in each county, 71
but one, to be chosen from same town, &c., ex-
cept in Dukes county, 71
to furnish Iilanks for return of votes for county
commissioners, county treasurer, Ac, 147
returns of votes for, to be transmitted to clerk
of courts, 60
to be delivered by clerk to board of exam-
iners, and be by them examined, &c., 60
in case of failure to elect, examiners to Issue
■warrant for new election, 71, 72
vacancies, how filled, 72
to be sworn, 145
exempt from serving as jurors, 679
clerks and assistants, of courts, to be clerks of, 012
to choose chairman by ballot, 145
times and places for meetings of, 147, 148
to examine returns of votes for county treasurer
and register of deeds, and notify per-
son elected, 61
and to issue warrant forncw election, if fail-
ure of election, 72
proceedings by. for assessment of damages occa-
sioned by coast survey, 45, 46
INDEX.
963
COUNTY COMMISSIOITERS-con^tmied.
to appoint suitable persons to assess 8tiitc, &c.,
taxes, if assessors neglect, 77
power of, to abate taxes, 79, 80
their clerk to furnisli certificate of abatemcats
made by them, 80
to provide fire proof offices, &c., 144,198
to cause county maps to be corrected from, time
to time, 144
proceeding's, when either is interested, &;c., , . 145
contested cases to be determined by three disin-
terested commissioners, 145
special provision for Dukes county in such
cases, 145
witnesses before, how summoned and compelled
to testify, 072, 073
may administer oaths to witnesses and punish
for contempt, 145, 073
to provide for erecting and repairing county
buildings, 145
to have care of county property, and to represent
count}', 145
to examine and allow accounts of county treas-
urer, Ho
to aUow and settle accounts of county receipts
and expenditures, H5
to make estimate of county taxes, 145,140
such estimates to be recorded by clerk, .... 14(3
and with statement of borrowcil money, &c.,
and treasurer's account, to be trans-
mitted to secretary, 140
penalty for neglect, 140
to apportion taxes according to last state valua-
tion,
to publish annually account of county receipts
and expenditures, &c.,
may renew county debts, &c., and restricted as
to amount of new debts to be con-
tracted,
may require recognizances for costs, &c., of
persons, &c., applying for assessment
of damages, &c., 140
may add costs to damages assessed, 140
may receive, &c., certain petitions at other times
than at regular meetings, 146
petitions so received, to be returned at regular
or special meeting, 147
costs of special meeting how paid, 147
costs for attendance of, when petition is disal-
lowed, 147
laws applying to commissioners and their clerks,
to include all persons acting as such, .
to appoint county treasurer in ease of vacancy, .
accounts of, to be examined by board of exam-
iners,
eherifif to attend meetings of, when ordered by
board 152
may remove registers of deeds for incapacity,
&c., except in Suffolk, 153, 154
may impose fine on towns for neglecting to
choose selectmen or assessors, .... 161
may appoint assessors of taxes, in case towns
neglect to choose, &c., 161
may appoint enginemen for private engines, if
selectmen, Ac, refuse, 177
duties of, in regard to law library associations, . 208
duties of, in relation to damages for laud taken
for schoolhouses, 220
powers and duties of, in laying out, &c., high-
ways, 232-239
powers of in laying out, &c., town ways and
private ways, in certain cases, .... 240
140
146
146
14S
149
149
COtTNTY COMMISSIONERS — coni/nwctf.
in keeping iu repair ways and bridges, . . , 245
in regard to damages occasioned by repairs
iu highways, 247
as to ferries, &c., 252
to cause permanent bounds to be erected at an-
gles, &c., of highways laid out by them, 244
may make by-laws concerning fast driving over
county bridges, 250
may license auctioneers, if selectmen, &c., re-
fuse, 280
may authorize persons to make and sell spiritu-
ous, &c., liquors, for exportation, &c., 439
to put in suit bond of manufacturers of liquors,
upou hrcflch thereof, 440
may grant lieenses to innholders, Ac, upon cer-
tificate of selectmen, 455, 450
clerks of, to transmit to selectmen lists of
persons licensed the preceding year, . 450
powers of, if selectmen refuse to grimt such
certificate, 456
not required to grant licenses, 457
to charge no fee for license, 457
to furnish summary of la« s relating to li-
c^-nses, to persons licensed, 457
may lay out turnpikes as highways, 346
to apportion damages, 340
proceedings if town refuses to pay, .... 346
powers and duties of, when turnpike is out of
repair, 340, 347
powers, &c., of, in assessment, &c., of damages
for land taken for railroad, &c., 352, 353, 354
as to removal of turnpike gates, 344
to order railroad corporations to construct em-
bankments, culverts, fences, &c.,. . . 355
powers, &e., of, iu relation to crossings by rail-
roads over highways, &c., .... 350, 357
in the regulation of dams, 759
may authorize laying out of highways across
railroads, 357
• to give notice, hear parties, &c., in such
cases, 357
not to permit highway to cross at grade,
unless public necessity requires, . . . 357
to have original jurisdiction of all questions
touching obstructions to highways,
&c., by railroads, 358
powers, &c., of, in relation to sign-boards and
gates at railroad crossings, &c.,
360, 301, 362
duties of, in assessing damages, &c., by aque-
duct corporations, 376
on petition for constructing roads, &c., to
swamps, &c., 752,753
exempt from serving as jurors, 679
processes of, to be served by ofliccrs, to whom
they are legally directed, 018
proceedings of, to be recorded by clerk of the
courts, 612
records of, to be in custody of the clerk, .... 013
awards of, to bear interest, 685
applications to, may be made by executor, ad-
ministrator, heir, or devisee, of per-
son dying before making same, .... 650
to audit coroners' accounts for inquests, except
in Suffolk, 850
to appoint overseers of houses of correction, . 858
may remove them, and fill vacancies, 858
may establish rules and regulations for houses
of correction, 858, 859
shall provide materials for work of prisoners
in, 858,859
964
INDEX.
COUNTY COM.WLSSIO'N'E'RS^ continued.
may employ prisoners ou public lands, 859
shall establish fixed Balaries for ofRcers, &c., of
houses of correction, 800
may furnish instruction in reading and writin;L^
to prisoners, for one hour each even-
ing-, except Sundays, 863
shall procure necessary supplies, except in Suf-
folk, for jails, &c., 8(H
may advance money irom county treasury for
purchase of tools, Ac, 865
shall allow reasonably for fuel, bedding, cloth-
ing, &c., 865
may direct specific rations to prisoners, .... 865
may sue, in name of county, to recover fbr sup-
port of convicts, 805,866
and for penalty on jailers for neglecting- to
keep prison book, Arc, 866
shall be inspectors of prisons, except in Suf-
folk, 860
powers and duties of, in this capacity, , 806, 867
compensation of, 147, 149
Special commissioners, how and wlieu
chosen, and term of office, 70,71
number of in each county, 71
proceedings in case of failure to elect, . , . . 71,72
vacancies, how filled, 72
to act when commissioners are interested, &e., 145
exempt from serving as jurors, 680
compensation of, 147
In Nantucket, selectmen to act as, 148
In SufFolk, aldermen of Boston to act as, . . . 148
In Chelsea, Worth Chelsea, and "Win-
throp, commissioners of Middlesex
to liave jurisdiction, 148
COUNTY OFFICERS.
embezzlement by, to be deemed larceny, and
how punished, 800
COUNTY TREASUREKS.
except in Sufi'olk an<l ZS';nitnckct,how and when
chosen, and term of office, 70, 71
to be resident in county, 71
not to hold certain other offices, 149
return of votes for, 59, 00, 61
proceedings in case of failure to elect, 72
vacancies, how filled, 72, 149
to be sworn and give bond, 148
to be furnished with office by county, 148
salaries of, 148, 149
may recover of town, county taxes not as-
sessed, 77
to publish annually account of county receipts
and expenditures, 140
to pay over money as connnissioners direct, . . 149
to account with commissioners at close of each
year, 145, 149
penalty for noglect, 149
may sue on bonds, &c., given to county, &c.,
and prosecute for injury to county
property, 149
may prosecute for trespasses on building owned
jointly by a town and county, .... 163
to give notice to district attorney if public offi-
cer fails to pay over money, «tc, . . . 149
to pay certain money from treasury to law li-
brary associations, 208
duties of, in regard to standard weights, meas-
ures, and balances, 284, 285
bond to, from register and assistant register of
probate and insolvency, 602, 003
bond to, from clerk and assistant clerk of courts, 613
to be sued by, in case of forfeiture, 613
COUNTY TREASURBBS — co?j/7nMef?.
suras recovered on, how appropriated, . . . 613
returns and payments to, from justices of the
peace and police courts, . . , 571,572,010
from clerks of the courts, 014
may commence suit on contracts, &c., made with
his predecessors, and prosecute suits
conimenced by them, 650
to transmit twice a year sworn account to auditor,
of costs, &c., in crimiual prosecutions, 852
form of account, 852
penalty for neglect, 852
certificate of clerk of court to be sufficient
voucher for all sums taxed for costs,
or allowed to prosecutors, 852
such account to be audited, and balance, if
any, paid, 852
to transmit annually to governor and council a
general account, &c., 852, 853
shall pay over to persons entitled the costs due
them, 853
To pay out of treasury expenses incident
to courts, 507
certain expenses of police courts, 571
and of probate courts, 577
In Suffolk, treasurer of Boston to be, .... 149
In Nantucket, town treasurer to be, 149
COUNTY "WAY.
how construed, 51
COURTS.
general court may constitute, 18
may administer oaths, 18
may make requisitions for militia in case of riot,
&c., 110
first day of term, how designated, 567,617
appointed to be held at a time and place which,
by reason of calamity, is unsafe, judge
may order same to be held at another
time and phice, 017
such order, how made, and notice given, .... 017
not to be opened on Sundays and holidays, ex-
cept for special purposes, .... 017, 618
processes of, to be served by sheriffs, deputy
sheriffs, coroners and constables, when
legally directed to them, 618
may be adjourned by any officer, on order of judge, 618
may be adjourned from one sliirc town to an-
other, in certain cases, 568
matters common to supreme and superior court,
565-568
Courts of insolvency, 581
{Sic Iitfioh-cnry.)
Justices court for county of SufiFolk, ju-
risdiction of, transferred to police
court of IJoston, 573
Police courts, 668
(See Police Courts.)
Probate coui-ts, 574
(See Probate Courts.)
Supreme judicial court, 553
{S<-e Supreme Judicial Couj't.)
equity jurisdiction of, 558
(See Equity.)
Superior court, 502
(See Superior Court.)
Martial and inquiry, 117-120
{See MiUtia.)
COURTS OP RECORD.
judgments and tk-crees of, suits on, limited to
twenty years, 777
presumed to be paid after lapse of twenty
years, 779
INDEX.
965
COVENANT.
action of abolished, and action of contract sub-
stituted for, 053
forms of declaring on, C5:J, 054, 004
ag'alnst incumbrances, measure of damages in
actions on, when incumbrance appears
by the records, 467
COW.
one exempt from levy on execution and from
attachment, 024, 688
CKACKEBS.
penalty for selling and firing, Ac, without li-
cense, 460
CRANBERKIES.
tu b'- sdM hv the strike or level measure, . . . 264
CRANBERRY MEADOWS.
wilful and inulir-ious injury to, how punished, . 80*.)
CREDITORS.
of persons deceased intestate, when entitled to
administration, 483
of persons deceased insolvent, how to pro-
ceed, 497-490
how to proceed against executors, &c., . 491-193
how to proceed against heirs, legatees,
&c., 507, 508
trusts created for benefit of, how terminated, , 50'^
bills in equity by, to reach property which can-
not be come at to be attached, how
brought, 559
proceedings and rights of, &e., respecting insol-
vent debtors, 583-000
when and how may commit debtors on mesne
process and execution, 633-641
CREDITORS' BILL.
equity jurisillctiun in case of, 559
crier" OP COURTS.
duties of to be performed by clerks of courts,
sherifffi, or their deputies, without ad-
ditional compensation, 61S
CRIME.
t<tatistics of, provisions for obtaining, 1*29
not to exclude from being vvltnesses, except to
wills, 673, 674
conviction of, may be shown to affect credibility
of witnesses, 673
against nature, how punished, 819
CRIMINAL OFFENCES,
insane persons charged with and in prison, pro-
visions concerning, 838
in prosecutions for under by-laws, ordinances,
and the like, 838
jurisdiction over when committed on boundary
of two counties or within 100 rods of
dividing line, to be in either county, . 838
CRIMINAL OFFENCES — con^"w«C(f.
when on the sea and within one league of shore,
to be in adjacent county, 838
where mort;U injury, »tc., is inflicted in one
county, iuid death ensues therefrom in
another county, 838
where mortal injury, &.C., is inflicted on the high
seas, or on the land, within or without
the limits of the state, and death
ensues therefrom in the state, . . 838, 839
prosecutions for murder may be found at any
period, 839
other within six years, 839
time of absence from the state, to form no
part of six years, 839
process for arrest to issue forthwith after indict-
ment found for a ciipit;d offunce, . . . 839
further proceedings in such cases, 839
prosecutions for, not to affect civil remedies for
same matter, 840
CRIMINAL PROSECUTIONS.
when may be stayeil, on reparation to party in-
jured, 834,839
certain defeits of form, not to invalidate, . . . 843
limitations of, 839
CROSS ACTIONS.
against i>l;tiiitiirs out of state, how brought,
Ac., (H5, 640
CROSSINGS. (See Railroads.)
CRUELTY.
to apprentices and servants, how redressed, . . 550
of husband or mfe, when cause of divorce, . . 532
to Iiorses, oxen,and other animals, bow punished, 822
CURRENCY.
passing any bills, notes, Ac, as, except, &c., how
punished, 810
any bills, notes, &c., as, for less than five dol-
lars, except, &c., 810
fractional hills, 810
CURSING AND SWEARING-
profane, how punished, 819
prosecutions to be commenced in twenty days, . 819
CURTESY.
tenant by, who to be, 471
to hold binds during his life, 471
title of, not affected by advancements, . . . 475
tenants by, how liable for waste, .... 70S, 709, 710
tenancy by, how to affect limitation of real ac-
tions, in certain cases, 775
not affected by wife's right to hold property to
to Iier solo use 538, 539
CUSTOM HOUSE OFFICERS.
exempted from military duty, 92
exempted from serving as jurors, OSO
D.
DAMAGES.
on default, may be assessed by court, or on mo-
tion of either party, by jury, GS5
asBessment of, may be referred in all cases by
court to jury, 685
in actions of replevin, 732
may be assessed by clerk on contracts where
amount due is not disputed, 685
In actions on bonds, covenants, and agreements,
with penalty, how determined, . . 6S5, 6S6
81*
DAMAGES — continued.
in writ:^ of entry, may be recovered for rents and
profits, and for destruction or waste
of the buildings or other property by
tenant, 693
how recovered, in a writ of dower, for deten-
tion of dower, 697
subsequently, for rents and profits of a prior
tenant on whom demand of dower was
made, 097
966
INDEX.
DAMAGES — contimted.
for waste, ag-ainst tenants in dower, by tlie
curtesy, for years, and for life, . . 708-710
against joint tenants, tenants in common,
&c., for waste, 709
against persons wlio commit waste after
action brought conceruing lands, . . . 709
for wilful trespass, 70'.)
for casual and involuntary trespass, and
how amends may be tendered, . . 709,710
for injury done by boasts of other per-
sons, 185, 730
in actions of tort for acts of deceased, com-
menced or prosecuted by executors
or admiuistrators, to be only for value
of property, or actual injury, G51
for wrongs or injui-ies, not to be deducted in
settling amount due from trustee in
trustee process, 724
measure of, not changed by statutes relating
to pleading and practice, G02
in conipliiints for flowage, how estimated, . . . 750
for what time to be allowed, 750
what to be allowed by way of set-off, 750
jury to determine what sum shall be paid annu-
ally, 75G
and what sum to be paid in gross, 75G
owner may elect which to pay, 75G
within what time election to be made, 750
to be a lien on mill and appurtenances, .... 750
annual compensation may be assessed anew, . . 757
gross damages assessed only once in ten
years, 757
DAMS. (See Mills.)
may be erected and maintained on streams not
navigable, 754
not to be erected, or raised, to damage of exist-
ing mill, 754
height of, to be regulated by jury, 755,750
^ damages for flowage, proceedings to recov-
er, 755-757
material change in, to be deemed a new mill or
dam, • .... 757
provisions concerning the regulation of, ... . 759
county commissioners to view and examine,
after notice to adverse party, on appli-
cation by persons owning property
liable to be destroyed by breaking
of, 759
. if not suflRcieutly strong, commissioners may
require them to be made secure, . . . 750
directions to owner to make repairs, &c., to
be in writing, 750
result of examination to be recorded, . . . 750
record to be evidence, if owner had oppor-
tunity to be heard before commission-
ers, 750
if owner neglects or refuses to make repairs,
&c., commissioners to cause dam, or
parts thereof, to be removed, .... 759
after removal, no structure to be erected except
as commissioners direct, 759
if dam cannot be removed without danger, the
commissioners shall make it safe, , . 759
if commissioners require no alteration, &c.,
costs of application to be paid by pe-
titioner, otherwise by o\vner, .... 759
in all cases to be paid by owner if he is peti-
tioner, 759
supreme court has jurisdiction in equity to com-
pel owner to make alterations, &c., . 7G0
penalty for wilful, ic, injury to, 804
'DAM.S — conthntPd.
penalty for raising water by, so as to injure
mill, 804
not to apply where court may abate 804
DARTMOUTH.
penalty for taking certain fish in waters of, by
persons living out of state, &c., ... 431
DEACONS.
of churches, if citizens of the United States, a
corporation to take, &c., grants to
their churches, 205
when to be corporation for such purpose, t-o-
gethcr with minister, 205
cannot convey church lands without consent of
church, &c., 206
DEAD BODIES.
may be furnished to physicians, &c., by over-
seers of poor, &c. 195
physicians to give bond in such case, &c., ... 195
remains to be decently buried, 195
when not to be delivered to physicians, &c., . , 195
not to be taken on mesne process or execution, . 821
penalty for so taking, 821
unauthorized removal or disinterment of, how
punished, 821
accessories thereto, how punished, 821
buying, or selling, or having in possession to
sell, how punished, 821
inquest on certain, to be held, 84S, 849, 850
expense of bringing to land, when found in any
waters of the state, how paid, .... 850
except for services in searching for, .... 850
money, &e., found upon, to be kept in charge by
the coroner, §50
of strangers, expense of burial, &c., how borne, 850
of others, how borne, 850
DEATH.
of parties to actions, petition for partition, &c.,
(see Surviving of Actionsy) . . . .648-650
of insolvent debtors, after proceedings com-
menced by or against them, not to
affect same, 583
of justices of peace, after rendering judgment in
civil actions, proceedings thereon, . , 607
of officers or party after commencement of levy
of execution, effect of, 090
sentence of, how to be executed, 847
DEATHS.
city and town clerks to record and index factB
concerning, 168
form of record, 1G9
to be reported by parents, householders, ship-
masters, &e., to clerk, under penalty, 109
return to be made by clerk to secretary, under
penalty, 1G9
physician to certify certain facts concerning,
when requested, under penalty, ... 109
sextons, «&c., to make return of facts concerning
to clerks, IG9
compensation of sextons, 1G9
record of clerk concerning, to be prima facie
evidence in legal proceedings, .... 1G9
certificate of clerk to be evidence of such rec-
ord, 109
superintendents of state almshouses, to make
return concerning, 100, 170
town clerks, where such almshouses are located,
to be exempt from making returns, . 170
towns, &c., may make additional rules concern-
ing registration of, 170
registrars may be appointed in certiiin towns, to
make record, &c., concerning, .... 170
INDEX,
967
DEBT.
actiou of, abolished and actioneof contract sub-
stituted, except for penalties, .... 653
for penalties, action of tort substituted for, . . (i5;J
DEBTORS. {See Iiisoh-enci/.)
Insolvent, proceedings by and against, . , 582-601
provisions for arrest, discharge, and punish-
ment of poor, 633-(H2
(See Poor Debtors.)
DECLAKATIOK".
in actions at law, charge in, taken to be true on
default of defendant, 058
In. personal actions, how named, and forms
of, 05:^5, 054, 003-000
need not aver what is not required to be
proved, 003
may state the substantive facts, without ver-
biage, 053
need contain but one count, but with any
number of breaches, 054
may assign breaches in the alternative, . . . 054
same count not to include two causes of ac-
tion on same contract except the count
on the account annexed, 054
may include different c^mses of action, be-
longing to same division, 054
in actions of contract and tort not to be
joined, unless it is doubtful to which
class a cause belongs, 054
a count in contract aud a count in tort for the
same cause of action may be joined,
with an averment that they are for the
same cause, 054
common counts uot to be used unitedly, . . 054
count on account annexed, may be used in
certain cases, 054
supplemental may be made alleging facts
occurring or becoming known after
former declaration, 057
On written instruments, except policies of
insurance, to set out copy or legal ef-
fect of instrument, 054
need not contain profert or excuse, 054
to state substance of instruments, lost or de-
stroyed, 354
On bonds, conditional obligations, and
contracts, or grants, to sot forth
eoudition and breaches, 054
agaiust parties severally liable on same
written contract, how made, 054
referring to a general statute, may specify
chapter, or make some other general
reference, 054
in actions of tort for breaking and entering
plaintiff's close, shall designate the
place by name, abuttals, or otherwise,
C54, 055
need not be inserted in writ in actions of con-
tract and tort unless an arrest is made, 055
may be filed in clerk's office on or before re-
turn day unless an arrest is made, . . 055
to be furnisbcil, with bill of particulars, to
defendant within three days after de-
mand, when attachment is made, . . . 055
if not iuserted in writ, or fded, action shall
be discontinued, 055
may be filed on leave of court during return
term, 055
on the common counts, bill of particulars to
be filed with, and numbered, 055
not to be abated for circumstantial errors,
&c., or defects in form, 057
DECLARATION, &c. — continued.
demurrer to, for what causes, and how may
be made, 055
counts in, unnecessary, or upon which no
evidence is given, to be striken out, . 061
not to be deemed evidence, 001
costs allowed for in civil cases, 783
In real actions, on mortgage, title to allege
seisin to be in mortgage, 054
In set-off, may be filed with answer, proceed-
ings, «ro, 071
In trover, 054, 606
In writs of entry, what to be alleged, . . . 092
Forma of, in different cases, 003-007
For Naturalizatiox,
not to be received by any court, except tlie su-
preme judicial aud superior courts, , 018
DECLARATION OF RIGHTS, 14
DECREES.
' Of probate courts, may be appealed fi-om to
supreme court, »4S, 575
to be in writing, &c., 570
when validity of not to be drawn in ques-
tion, 570
(.SVe Probate Courts.)
In equity cases, how made, appealed from,
&c., 500, 561
process for execution of not to issue for thir-
ty days, unless an appeal is waived, , 500
Of courts of record, suits on, Hmited to twen-
ty years, 777
presumed to be paid after lapse of twenty
years, 779
DEDICATION" OF WAYS.
pro\ isions respecting, 243
DEED.
executed by person having authority, or by his
attorney, aud acknowledged and re-
corded, conveys real estate, . . . 465, 406
by agents of couuties to be under their
proper hands aud seals, ifj
conveyance of estates, &c., without deed in
writing, to have force of estates at will
only, 466
iu fee simple, fee tail, or for life, or more
than seven years, not valid unless by
deed recorded, 466
by tenant in tail in common form, to convey a
fee simple and bar estates tail and re^
maiuders and reversions expectant, . 406
by tenant for life and o^vner of vested remainder
in tail, to convey a fee simple, and bar,
&c., 406
of quitclaim and release in common form, to pass
estate, like deed of bargain and sale, . 406
by tenant for life or years purporting to convey
greater estate to pass estate of grant-
or, 406
such conveyance not to work a forfeiture of
estate, 466
by o\vner of precedent estate not to defeat estate
expect;mt, except estates tad, .... 406
to person for life and his heirs in fee, shall so
vest estate, 466
to two or more shall create estate in common,
and not iu joint tenancy, uuless ex-
pressly provided, &c., 466
exceptions to foregoing provision, 467
purporting to be absolute, not to be defeated by
deed of defeasance, unless recorded,
except, &c., 407
968
INDEX.
DEED — continued.
grautoi- to make kiio\m to rfrantee, if incum-
bnmces exist upon estate convoyed, . 407
to be liable in damages for neglect, &c., . . 407
Toid, if iu cousideratiou of money lost in gam-
ing, except, &c., 436
Of defeasance, not to Iiave any force against
tliird parties without notice, unless re-
corded, 4G7
when may constitute a mortgage, 710
form of declaration on warranty in, 004
Acknowledgment and Recokd.
acknowledgment of, to be made by grantors,
or one of them, 467
before whom to be taken, 132, 467
by agents of counties, 144
certificate of, to be indorsed on deed by per-
son taking, 468
execution of, how proved if grantor dies, &c.,
without acknowledgment, 46?
how, if witnesses are also dead, tfcc, . . . 407
how, when grantor refuses to acknowledge, 4<)7
how, when subscribing witnesses are dead,
407, 468
not to be proved, iu such manner, unless it
has at least one subscribing witness, . 468
when copy of, not acknowledged, may be filed in
registry of deeds, and cfi'ect thereof, . 468
proof of execution to be indorsed on deed by
clerk or justice, &c., before whom
proved, 4GS
powers of attorney for execution of, to be ac-
knowledged, 408
when to be acknowledged by both huBband and
wife, 408
not to be recorded without certificate of ac-
knowledgment or i^roof, 408
where to be recorded, 154
(-S'ee Register of Deeds.)
DEEE..
penalty for hunting at certain seaBons, except,
&c., 430
with dogs, at any time, in Plymouth and
Barnstable counties, 430
DEFACING.
of inil)lic records, how punished, 199
of tombs, gravestones, &c., in cemeteries, &c.,
197, 821, 822
of other property, 252,803
DEFAULT.
if defendant, duly summoned, docs not appear,
to be recorded, and plaintifPs declara-
tion taken to be true, 658
may be taken off at first term,ou payment of costs, 658
to be entered against defendant, unless within
ten days after return of writ, or before
last day of return term, he files an
affidavit of merits, 658,659
time may be extended by order of court, . . . . G59
how and when to be entered against absent de-
fendants, 646
of defendant, for not answering interrogatories
or refusing to amend, &c., answers, . GOO
judgment upon, how to be entered, .... 658, 685
when part only of defendants are defaulted, G85
in actions upon judgments by default, defend-
ant may, in certain cases, make same
defence as on review, 663
of trustees, iu trustee process, effect of, .... 722
of executors and administrators, cited in cases
commenced agaiuBt deceased, effect of, C48
DEFEASANCE.
when to operate as a mortgage, 716
not valid against third parties without notice,
unless recorded, 407
DEGREE.
of murder, to be found by jury, 791
DEMTJRBER.
may be made iu answer or replication, . 655, 656, 657
causes for, specified, 655
to be certified by the attorney, • ... 655
not to be made for defect of form, &c., 057
deemed to be joined iu by opposite party, unless
awarded, 657
may be amended, 057
how heard and determined, 001
decision of one judge on, respecting misjoinder
of counts, fiuid, 661
appeal from, may be had in other cases, . . G61
if adjudged frivolous, &c., court may order
party to plead, &c., notwithstanding
appeal, 661
when sustained, overruled, or withdrawn, court
may make further orders, &c., .... 661
In equity cases, defence may I;-e made by, . . 559
to be accompanied by certificate that it is not
intended for delay, 559
DEPOSITIONS.
IX CIVIL CASES.
Of Witnesses in the State.
when and how taken, 074,675
may be taken to be used in all civil proceed-
ings iu this state, 674
when witness lives more than thirty miles
from place of trial, or is sick, infirm,
or aged, or about to go out of the
state, 674
witness, in such case, may be summoned and
compelled to attend and give his depo-
sition at any place within twenty miles
of his place of abode, 075
may be taken when witnesses hve out of, but
are at the time in, tliis state, 675
such witnesses from other states may be com-
pelled to attend at any place within
ten miles of place where summoned, , 675
taken ex parte, when to be admitted,
075, 676, 730, 737
Applications for the taking of, may be made
to any justice of the peace, after ser-
vice of process, or a case is submitted
to arbitrators or referees, 674
Notice of time and place of takiug to be issued
to adverse party, 674
how served, 674
maybe verbal, or wholly omitted, if waived,
in writing, by adverse party, 674
Deponent to be sworn, or to affirm, 674
to be examined by justice and the parties,
and his testimony taken in writing, . 074
on written or verbal interrogatories, first
by party producing him, then by ad-
verse party, and afterwards by either
pt'.rty, 674
to subscribe his deposition after it is read
to or by him, 674
to be written by the justice, the deponent, or
some disinterested person iu presence
of the justice, 674
to be read to or by the deponent, 674
how certified and used, 074, 675
certificate of time and manner of taking, and
INDEX.
969
DEPOSITIONS - rantinued,
of other facts to be annexed thereto
by justice, 074
to be sealed up and delivered, or directed by
the justice to the court or magfistrate
before whom the case is pending-, . . 674
when sealed, to remain so imtil opened by
court, 674
when taken on written interrogatories, objec-
tions to any Interrogatory must be
made before it is answered, and ob-
jections noted, 075
objections to the competency or credibility of
deponent, and the propriety of ques-
tions, and to answers, how made when
deposition is produced 075
not to be used, if reason for taking no longer
exists, 675
when taken for a suit afterwards discontinued
or nonsuited, may be used in a second
suit ibr same cause, if it was filed and
remains with court, 675
rules concerning the opening, filing, keeping,
taking, and using, may be made by
courts, 075
To be used in other states and countries,
may be taken before justices of the
peace, or commissioners appointed by
such states or countries, 070
witnesses may be summoned and compelled
to testiiy in such cases, 070
may be taken and used in cases of seizing and
libelling forfeited goods, 773
Of Witnesses out of the State.
may be taken under a commission issued by
court to persons in other states or
countries, 075
or by commissioners appointed in other states
and countries, 075
such commissioners, how appointed, and their
duties, 132
to be taken on interrogatories exhibited to ad-
verse party, and cross interrogatories, 075
may be used subject to same objections and con-
ditions as if taken in this state, . . , 075
rules concerning the issuing commissions, filing
interrogatories, and other matters re-
specting taking depositions out of the
state, may be made by courts, .... 075
taken in any other mimuer than as above, may
be admitted or rejected at discretion
of court imder certain circumstances, . 675
when so taken, not to be admitted, unless ad-
verse party had notice, if possible to
be given, 675
To PEItrETUATE TeSTIMOXY.
of \Titnesses in or out of the state, 670-67S
Of witnesses in the state, may be taken on
such notice to all persons interested,
as is required to be given to adverse
pai-ty in other cases, 676
when sufficient notice is not provided for by
law, such notice shall be given as jus-
tices deem proper, 070
brief statemeut of claim or interest to be
made in writing, and delivered to two
justices of the peace, 076
one of said justices to be a judge or register of
probate and insolvency, a clerk of su-
preme court, a master in chancery, or '
counsellor at law, 670 |
122
DEPOSITIONS — continued.
not to be taken, when certain objections are
made, and justices may examine party
as to the reasons for taking the same, 676
to be written, read, subscribed, and eertiiied,
and witness sworn, in hke manner as
in taking other depositions, 676
to have annexed an additional certificate, that
it was taken in perpetual remem-
brance ; the names of persons at whose
request taken ; who were notified, and
who were present, 070
to be recorded, with statement of claim, witli-
in ninety days, in registry of deeds, . 676
may be used in suits between parties taking
and those notified, or persons claiming
under them, ()7(i, 677
copy of, from registry of deeds, may be used
in suit, 677
used in subsequent suits to be subject to same
conditions as when taken for those
suits, 677
Of witnesses out of the state, 677, 678
may be taken under a commission issued by
supreme or superior courts, 677
party applying for, to file in court a brief
statement of claim, in like manner as
when proposed to be taken in the state, 677
in what county such statement to be filed in
different cases, 677
fctutemont may be filed and notice issued in
vacation, 677
notice to be sen'cd fourteen days before time
of hearing, on all persons mentioned as
adversely interested, if lining in the
state, 077
on hearing parties who appear, court may is-
sue commissions, if there is sufficient
cause, 677
to be taken on written interrogatories, and
cross-interrogatories, and returned,
as in other cases of commissions is-
sued, 077
may be used as if taken in this state, . , . . 077
rules respecting taking, filing, and recording,
may be made by supreme court, . . , 677
To PERPETUATE TESTIMONY AGAINST ALL PERSONS.
may be taken, as of witnesses in or out of state, 677
may be taken on commission issued after public
notice, by supreme or superior courts, 677
party desiring to take, may apply as above, in
case of ^vitnespcs out of the state, . . 677
proceedings to bo substantially same as in case
of other witnesses out of the stale, . . 077
court, in addition, to inquire upou oaths of appli-
cant or otherwise, as to persons inter-
ested, 078
shall direct commissioners what notice to give, 678
such notice to be directed by name to all per-
sons supposed to be interested, and
generally to others, 678
when taken and returned, if found to have been
correctly done, shall be recorded in
registry of deeds witliin thirty days, . 678
the original, or a copy, may be used in evidence
in all cases wherein the claim or title
set out in tiie statement is brought in
question, 078
Of Parties to Suits.
may be taken of parties who might be witnesses, 673
970
INDEX.
DEPOSITIONS — confitmed.
IN CKIMIXAL CASES,
of witnesses ordiTfd to recognize with surety,
and uuiible to lind biiil, may be token,
with defendant's consent, 833
who to be notified, S33
defendant's consent to be indorsed on deposition, ii2'i
to be returned to court, to wliich witness was
ordered to appear, 833
niay be used at trial by either party, if witness
is uuable to attend, S33, 834
Of witnesses out of the state, may be taken
by defendant in criminal cases, after
issue of fact joined on an indictment, &40
prosecuting oflScer may join in commission
and name witnesses for common-
wealth, 8i0
how to be taken and returned, 840
if defendant deoliucs to use such deposition
at trial, government not to use it with-
out defendant's consent, 840
DEPOSITS.
in bonk by assignees of insolvent estate, may
bear interest, 307, 587
by cities and towns, may bear interest, 30r
DEPUTY LNSI-ECTORS,
of various articles, how appointed, &:c.,
258, 2(51, 267, 209, 270
(See Inspectors General.)
DEPUTY- SHE RTPF.
how appoiuted, and sworn, 150
to serve Jill writs, Ac, lawfully directed to
them, 151, CIS
may require aid in execution of their office, in
crimiual cases, 151
not to act as attorney, under penalty, 151
not to buy, &c., any demand, &c., with intent,
&c., CIS
liability of sheriff for default or misfeasance of, 151
may serve process in their hands at time of va-
cancy iu otTu'e of sheriff, 151, 152
{.S'.^' Sherij/'.)
DEPUTY "WABDEN.
of state prison, {s:ce State Prisou,) 870,872
DESCEISTT OP REAL ESTATE.
rules of, 474,475
not to defeat rights of eutry and real actions, 0'J2, 770
DEVISE.
to children, &c., not to lapse by death before
that of devisor, if they leave issue who
survive him, 470
such issue shiill take the devise, unless, &c., . . 470
to a subscribing witness to a will void, unless
there are three other competent wit-
nesses, 477
DEVISEES.
to euntiibute proportions, when estate is taken
from a devisor to pay t^^stator's debts
or for dower of widow, 479,480
how liable to contribute to posthumous or other
child omitted iu father's will, .... 479
when and Iiow liable for debts of testator, . . . 507
actions against, for such debts, not barred by
provisions for actions against execu-
tors, &c., 492
estates of, liable for such debts after their death, 507
not liable to pay moi*e than amount received
from testator's estate, 507, 508
when liable to contribute among themselves, , 508
liable, in certain eases, to scire facias on judg-
ment recovered against devisor, for
penalty ^floonds, covenant, &c., . . . G8C
DEVISEES — eo»/;»Kcrt.
how may become parties to real and mixed ac-
tions and proceedings for partition,
conmieuced by or against devisor, 049, 050
may tender amount due on mortgage of land
devised to them, 715
and bring suits for redemption, 7J5
suits for contribution among, may be brought in
supreme court in equity, 559
DIET.
of couviote in hospital of state prison to be uu-
dt^r direction of physician, ."^r i
DIBECTORS.
Of public institutions in Boston, 858
compensatiou of, 858
powers and duties of, as to house of correc-
tion for Suffolk county, 858, 859
may recover forfeiture of jidler for not keep-
ing calendar, 800
may remove children under eighteen mouths
of age, from their mothers, SGI
to oversee execution of sentences to solitary
imprisonment and hard hibor, .... 802
to remove forthwith any officer by them ap-
pointed, known to use intoxicating
liquors as a beverage, 803,804
record of prisoner's conduct to be exhibited
to, 804
to fix the rate of pay for board of prisoners, 805
to audit, twice each year, or oftener, accounts
for support of convicts, 865
may commence action for sum due for sup-
port of prisoner, 805
blank forms of returns to be furnished to, . 867
forfeiture for not making returns, 808
Of banks, 305
Of other corporations. {See their Titles.)
DISCHARGE.
Of insolvent debtors, (-'t'c Insolrennj,) ... 591
Of poor debtors, on mesne process and execu-
tion, {see I'oor Debtors,) 035-037
Of bail, in civil cases how made of principal, 043, 044
{See Bail.)
Of military officers, {see .WUtia,) ... 100, 101
DISCHARGED CONVICTS.
forfeitures fur failing to keep prison book, &c.,
or to make official returns, to go to
relief of, 800, 808
from state prison, provisions respecting, . . , 877
DISCIPLrNE.
of convicts in state prison, 874, s:5
in other prisons, 800-HVl
DISCLAIMER.
may be pleaded iu abatement, or given in evi-
dence under general issue, 093
party pleading not to have costs before plea is
filed, 003
DISCOlNTTIISrUANCE.
not to defeat rigiits of entry, or real actious, 002, 770
of actions by phuutiff, not allowed after set-off
filed, unless defeudaut consents, . . . 071
when caused by insolvency, &c., defendimt not
to have costs, 7iS0
costs on, must be p;iid, or second suit for same
cause will be stayed or dismissed, . . 780
DISCOUlfT OP TAXES.
may be allowed by towns, 70
how made, and notice of how given by as-
sessors, 70
DISCOVERY.
suits for, may be brought in supreme court in
equity, 559
I
INDEX.
971
DISCOVERY — ronitnucf/.
answers in such cases to be made without delay,
and questions on, how determined, . 559
by interrogatories and answers between parties
to suits, 659, GGO
DISEASED PROVISIONS.
penalty for knowing-ly selliny, without notiiy-
ing^ buyer, 822
DISEASES.
dangerous to public health, IW-iOS
proceedings wlien pereons arc sick with,
190, 191, 192
hospitals for reception of pereons sick with,
192, 193
householders, &c., to give notice of, to board
of health, &c., under penalty, 193
regulations couceruiug persons sick with small
pox, 193
fence erected to prevent spread of, not to be
removed by surveyors of highways, . 240
DISORDERLY CONDUCT,
iuiircsenceof senatoorhuusL'ofreprcsentativcB, 22
at elections, penalty for, 01
at town and parish meetings, IGO, 202
{See Contempt.)
DISORDERLY PERSONS.
eummun, how piinislicd, 820, 821
in night time, how may be arrested and de-
tained, 821
DISQ.it ALrFICATION.
uf persons from acting as attorneys, Jtc, in
cases in which they have acted as
magistrate or judge, 010,015,016
of judges of probate and insolvency, when by
reason of interest, C02
jurors not disqualified in certain eases, . . .018,683
nor on account of being inhabitants of
Boston, &c., 018
not to arise on account of judge, magistrate, ap-
praiser, or officer being an inhabitant
of town which is interested, 018
of persons convicted of fighting duel, &;c., from
holding office, 792
DISSECTION.
when body of person executed, to be delivered
up for, 791
DISSEISIN.
when right of entry or action for, accrues, , . . 775
of minister or other sole corporation, entry
to be in five years, 775
of precedent estate not to bar or defeat estate
in expectancy, 5GG
of devifior, after devise made, not to affect dev-
isee's right to the estate, 476
what to be considered, for purpose of trying-
title, 520, 092
(See Writ of Entry.)
DISSOLUTE PERSONS.
going about begging, how to be arrested and
punished, 820, 821
DISTRAINING.
of caitle being at large contrary to law, or do-
ing damage, 185
when person distraining, to leave with pound-
keeper memorandum of cause, amount
of damage, &c., 185
when to give like memorandum to o^vner
of beasts, 185
beasts not to be delivered until costs, &c., are
paid, 185
how notice of impounding to be given to owner,
&c., 186
DISTRAINING — con((««^//.
how, if o\vner is not known, &c., or does not
appear within seven days, 18(»
how damages to be tletennined in case of dispute, IWi
when owner does not pay damages witiiiu four-
teen days after n<(tice, A:c., cattle to be
appraised, &c., ami daniages deter-
mined, 180
if damages so determined are not paid forth-
with, cattle to be sold at auction, . . 180
notice of auction, how given, 18G
proceeds of sale, how disposed of, 180
penalty for rescuing beasts distrained, 180
beasts impounded, &e., escaping or rescued,
may be retaken within seven days, . . 180
legality of distress, liow to be tried, .... 187,730
DISTRAINING FOR TAXES,
provisions concerning, 82
DISTRIBUTION.
of persomil estate after payments of debts of
deceased, rules of, 485
of land held in mortgage or taken on execu-
tion, to be like that of personal estjite, 490
advancements to issue, not to be computed
in distribution to widow, 4>^5
of estates of insolvent debtors, 581-0(0
of insolvent estates of deceased persons, . 490-198
DISTRICT- ATTORNEYS.
how and when cliosen '!>*, 70
for what districts, KiO
salaries of, 130, 131
terra of office, 70
returnof votes for, 59,00
to be a resident in district, 70
in case of failure to elect, governor to order new
election, 71
vacancies, how filled, 72,131
may be removed from office by supreme judicial
court, 553
one for each district, 130
in absence of, court may appoint person to act, 130
not to receive any fee from prosecutor, nor be
counsel in ct^rtain cases, 130
to account with state treasurer for fee8,C0Bt8,&e., 150
general duties of, 131
may interchange official duties, 131
to enforce payment from public officers of
money due county, H9
to prosecute overseers of poor, &c., for neglect
to make returns of paupers to secre-
tary, 395
to institute suits for recovery of expenses of
support of state lunatic paupers in cer-
tain cases, 409
to bring suits on defaulted recognizances given
under liquor prosecutions, &c., . . . 448
to prosecute pubUc administrators for neglect of
official duties, 488
to file information, Ac, against persons imlaw-
fuUy intruding or holding lands of
commonwealth, 717-719
or certain Indian lands, 710
to attend examination of poor debtors seeking to
be discharged from imprisonment on
warrants of distress in favor of state, 639
may disallow magistrates' fees in certain crim-
inal cases, iu whole or in part, .... 78b
to institute complaint against overseers of
house of correction, or, in Suffolk,
against directors of public institutions,
for forfeiture for neglecting to make
official returns, w-«
972
INDEX,
DISTRICT -ATTORNEYS — continued.
Assistant, for Suflblk district, may be ap-
pointed by governor and council, . . 131
salary of, 131
DISTRICTS.
to have powers, «tc., of towns, 165
for choice of senators, li), 35, 39, 02, 03, 64
representatives in congress, 07, 08
representatives in general court, . . . . 3S, 39, 04
councillors, 10, 37, 62
for adniinistration of criminal law, 130
for registry of deeds iu Berkshire, Bristol, and
Middlesex, 153
DISTURB ANCE.
of assemblies for religious worship, how pun-
ished, 819
of camp meetings, 819
of school, or other lawful assembly, 820
of ;i funeral procession or assembly, 820
DIVIDENDS.
of estates of insolvent debtors, how made, 594, 595
may be attached iiud held by trustee process, 723
DIVORCE.
proceedings of court in matters of, how regu-
lated, itc, 536
certain marriages void without decree of, . 531, 532
obtained out of state, for cause not sufficient
here, of no effect, 537
provisions as to polygamy, in case of, 818
From bond of matrimony, for adultery or
impoteucy of either party, 532
Avhcu one party, without consent of the oth-
er, has united with a sect that professes
the marriage relation to be void, &c.,
and so continues for three years, &c.,
when a party is sentenc<?d to hard labor in
jail, ttc, for lii'e or five years, ....
a pardon granted after a divorce In such
case, not to restore conjugal rights, .
when one has deserted the other for five
years consecutively,
but when application for, is made by party
deserting, it must appear that deser-
tion was caused by extreme cruelty, .
or that desertion by wife was caused by
neglect to provide maintenance, »tc., .
libel not defeated by temporary return of
party deserting,
in certain cases, after divorce from bed
and hoard, 532
when parties have lived separately for ten
consecutive years, 532
penalty for living together again, . . . 533, 534
From, bed and board, for extreme cruelty,
utter desertioH, gross and confirmed
habits of intoxication contracted after
marriage, or cruel and abusive treat-
ment, and on libel of wife when hus-
band refuses to suitably m;unt;un
her,
may be decreed when libellaut has lived in
state live years, luiless he removed
hero to procure it,
not to be granted, if parties have not cohab-
ited in this state, except, &c., . . 532
Xjibels for, where fo be heard and determined,
either party to, may have trial by jury, . . .
proceedings as iu suits at common law, .
to be signed by libellaut or guardian, . . .
how to be filed, and notice thereof sen-ed, .
if service is insufficient, court may order
further notice,
532
53:2
532
532
.32
532
532
. 532
533
533
533
533
533
533
. 533
DIVORCE — continuM.
to be answered by guardian, if respondent
is insane, 533
during pendency of, wife may have alimony,
and allowance to carry on suit, .... 533
wife to be protected from husband's re-
straint, 5;j4
court may make order concerning care,
&c., of children, 534
Alimony may be allowed during pendency of
suit, 533
upon or after decree of divorce, in certain
cases, 535, 53G
decrees of, may be enforced by the court, . 530
may be revised or altered by the court, , . 530
Children, care and custody of, during penden-
cy of libel, 534
after divoi-ce, 534
of parents divorced in another state, , . . . 534
of parents who live separately, although not
divorced, 535
to be determined by their happiness and
welfare, 535
and rights of parents, in the absence of mis-
conduct, to be held to be equal, .... 535
of persons divorced not to be removed from
state without their consent, &c., . 534, 535
General provisions, woman divorced may re-
sume her former name, 533
innocent party divorced from bonds of
matrimony may marry agiiin, .... 534
in what case cither party may be author-
ized to marry again, 534
issue of marriages dissolved, &c., by, for
consanguinity, &c., illegitimate, . . . 534
for certain other causes, not affected, . . . 534
in what crises wife entitled to dower, .... 535
when granted for adultery of wife, hus-
band to hold her estate, except, &c., . 535
for any other cause, wife to hold her es-
tate, &c., 535
court may appoint trustee of wife's prop-
erty, 535
husband may be examined on oath as to
wife's iicrsonal projierty, 5:35
husband's property may be attached on cer-
tain libels for, 536
attachment may be made ou summons
or order of notice, 530
laws relating to, to apply, 530
DOGS.
to be annually registered and licensed, 461
fees for license, «k ... 461
clerk to issue license, and treasurer to keep ac-
count of money concerns, 401
to post list of dogs licensed, 461
to furnish copy of list to constables, &c., . . 401
license when to expire, 401
new, not required, if owner removes to an-
other to\m, unless, &c., 401
penalty for keeping dogs without, 401 .
penalty for removing collar from, or stealing or
killing, if licensed, • 401
for exposing jioisons for, 401, 402
may be killed when not licensed, 402
bounty for killing, 402
owner of, to forfeit double the damage done
by, 462
may be killed by any person assaulted, &c., and
when found worrying cattle, &c., . . 402
dangerous, to be confined or killed by owner, . . 402
penalty ou owner for neglect iu such case, . 462
INDEX.
973
DOGS — continued.
may be killed by any person, after notice to
^ owner, 402
liability of owner for damage done by, . , . 462
towns liable for damages done by ,in certain cases. 462
may recover same of owner, 462
persons damaged by, to have choice of remedy, . 462
mayor and alderman to require dogs not li-
censed, &c., to be destroyed, 402
penalty on officers for neglect of duties imposed, 403
additional by-laws concerning, may be made by
towns, &c., 403
fines, &c., how recovered, 403
DOORKEEPERS.
of s;rnate and house of representatives, . . . 22, 4S
DOUBLE COSTS. (See Costs.)
wlii-n, how, imd what to be taxed, 781
DOWER.
KlOHTS OF.
in husband's land, after liis death, unless law-
fully barred, 409
after divorce, for his adultery, or imprison-
ment, &c., 535
what, in mortgaged estates, 409
in lands taken in execution for husband's debts, 524
held by husband under a demise for one
hundred years, &c., 471
tenant in, liable for part of rent in such case, 471
aud prior devises of such terms not affected,
&c., 471
in wood lot, &c., used with husband's farm or
dwelling-house, 470
not in other lands that were wild when Imsbaud
died or conveyed them, 470
title to, not atfected by advancements, &e., . . . 475
in case of divorce for adultery of husband, or
his being sentenced to confinement to
hard labor, 697
provisions in lieu of, 540
if widow waives provision for her in husband's
will, entitled to dower, 478
if husband dies intestate, without issue, widow
entitled to one half of estate for life, 470, 471
if any part of such estate is wild, &C., widow
may use, &c., the same, 471
widow may have dower instead, if claiming
within six months, 471
undivided est-ate of widow in estate of husband
may be set off same as, 471
to be claimed within twenty years from death of
husband, except, &c., 469, 470
tenant in, if evicted or deprived of jointure or pro-
vision in lieu of, may be endowed anew, 470
may be enjoyed by widow, by joint occupation
with heirs, without beiug assigned, . 470
How RELEASED AND BAKRED.
barred by wife's release of claim to, in deed by
husband and herself, 470
in deed by Iiis guardian and herself, .... 539
by divorce for her adultery, &c., 535
by jointure settled by wife's assent, before
marriage, 470
by pecuniary provision in lion of, by similar
assent, 470
by jointure, &c., without assent, or after
marriage, unless waived, within six
months, 470
by provision in husband's will, if widow
elect to take it, 470
if widow does not waive provision in hus-
band's will, unless, &c., 478
82
DOWER — continued
by sales under mortgages with power of
sale, 710,717
in case of insane married women, how released,
&c., 540
not barred by divorce from bed and board, . . . 536
How ASSIGNED, RECOVERED, &C.
in what cases, and in what manner, assigned by
probate court, 469
commissioners appointed to assign, to be swoni, 46i»
fees of, 786, 78?
how assigned when estate is not divisible, . . . 469
may be assigned and sot out by guardian of the
heir, &c., 545
partition of lauds may be made before assign-
ment of, 469
when uot set off by heir or tenant, nor assigned
by probate court, may be recovered by
writ of dower, 097
must be demanded of tenant of freehold one
month before action brouglit, . , . . 097
what a sufficient demand, 0U7
action for, to be brought against tenant of free-
hold, 097
in action of, certain general provisions respect-
ing dower to apply, . .* 697
Damages for detention of, may be recovered
in action for, 097
teuant liable for, only while he held the
premises, if demand had been made
previously, 697
may, after judgment for dower, be recovered
for rents and profits in an action of tort
of a prior tenant of the freehold on
whom demand was made, 097
How set off, if recovered in an action of dower, 0U7
writ of seisin to issue to officer, 697
to be set off by three commissioners, . ... 697
may be set off from the rents and profits, if
the land cinmot be divided without
damage, G97
Tenant in, how liable for waste, . . . 708, 709, 710
penalty on, if she conmiit or suffer waste, . 470
liable for part of rent, 471
to contribute to redemption of mortgage,
when endowed of mortgaged estate, . 469
"DB^AFTS, (sec Bill.^ of Exchanf/e,) 293
DRAINS AND SEWERS.
in Huston, bow laid and luainTained, 253
land taken and damages appraised as in case
of highways, 253
in certain other places, how laid and maintained, 254
expense of, how to be assessed on proprietors
of private drains, entering main dniins, 254
in Boston, one fourth to be paid by city, . . 254
such assessments to constitute lieu upon real
est-ate for one year, ~5'i
may be levied by sale, if not paid within
three months after demand, 254
party aggrieved may have jury, as in case of
highways, 254
proceedings in such case, 254
part of expense of, may be paid by town, &c., . 254
highways not to be dug up for laymg, without
consent of selectmen, under penalty, 254
how to be constructed, 254
persons benefited, to share expense of making
and maintaining, &c., drain built by
individuals, 254, 255
expense to be determined by selectmen, subject
to right of trial by jury, 254,255
974
INDEX.
DBAINS, &C. — covlimied.
persons refusing- to pay, shall pay double
amount assessed, Ac, 255
such amount, how recovered, 255
notice to be given before opening-, &c., 255
parties interested may object, &e., 255
if objections adjudged reasonable, objectorB ex-
empted from expense, 255
if objections not made, &c., selectmen may au-
thorize opening, &c., 255
agreements of proprietors of, not aifocted by
these provisions, 255
expenses of opening to be paid by persons in-
terested, 255
DRAWBRIDGES in railroads, (see Raih
roads^) 35D, 300
DRINK.
penalty for fraudulently adulterating articles in-
tended for, for purposes of sale, . 822, 823
knowingly selling such articles, 823
such liquors to be forfeited, 823
DRIVERS.
of carriages on roads, regulations for when
meeting or passing other carriages, . 423
of coaches, &c., how punished for leaving horses
untied, if person is in coach, TiH
DRUGS AND MEDICINES.
fraudulent adulteration of, for purposes of sale,
how punished, 623
knowinglv selling such drugs, how pun-
ished 823
such drugs to be forfeited, 823
DRUGGISTS.
may sell pure alcohol for medicinal purposes to
pliysiciaus, &c., 442
DRUNKENNESS.
by voluntary use of intoxicating liquor, first
and second offence how punislied, . . 820
prosecution not to be commenced after six
months, 820
on second conviction, may be committed to
workhouses, 820
in Bostou, may be committed to house of in-
dustry, 820
imprisonraen*, pardon, and discharge to be
as in cases of persons held for non-
payment of fine and costs, 820
when cause for divorce, 532
DUEL.
penalty for engaging in, with deadly weapon, 791, 792
DUEL — continued,
for challenging to fight such duel 792
penalty for accepting, &c., such challenge, ... 792
present at such duel as aid, surgcou, &c., . 792
promoting or oncouragiug such duel, . . . 792
conviction of fighting such duel to disqualify
for holding office, 792
resident of this state engaging here to fight out
of state, and there giving wound from
which party dies here, is guilty of
murder, and where tried,. . . . 791,792
resident of this state, &c., if second to either
party in such duel, is accessory to
such murder, &c., 792
former conviction or acquittal in other state a
bar to proceedings here, 792
posting, &c., another for not fighting a duel,
X-c, how punished, 792
DUKES COUNTY.
need not provide house of correction, 144
county commissioners of, 71,145
cases arising iu, cognizable by single judge of
supreme court, to be heard in county
of Barnstable, 550, 557
law questions in, tK) be heard by supreme court
for commonwealth, 555, 556
capital cases in, to be heard by Bupreme court
in Barnstable county, 555
special term of court, how held for such
cases, 555
jurors in, liable to be drawn and serve once in
two years, 680
list of, may include one for every thirty in-
habitants, 680
how obtained when inhabitants of any town
are interested, 681
DUMPLING ROCK.
ceded to United States, for lighthouse, 44
DUTIES.
provisions of United States constitution con-
cerning, 4, 5
DWELLING HOUSE.
masters, &c., of, to give names of persons tax-
able and liable to enrolment to assess-
ors, under pen^dty, 77
punishment for wilful, Ac, injury to, by giin-
powdor, Ac, 803, 804
DW^ELLING-PLACES.
unfit for occupancy, how may be cleansed, va-
cated, &c., by order of board of health, 189
E.
EASEMENT.
not acquired by maintaining electric telegraph
lines, 374
of light and air, not to be acquired by use, . . . 472
from, in, upon, or over, land of another, not ac-
quired except by twenty years' unin-
terrupted adverse use, 472
acquiring may be prevented by written notice
from owner of land, 472
notice, how served and returned, 472
to be recorded in registry of deeds, . . . 472
may be given by guardian or agent, . . . 472
how given, when party to be notified is un-
known, 472
EASEMENT— con?m?/erf.
notice to prevent the acquisition of ease-
ment is such a disturbance of right
as to give an action of tort to try the
right, 776, 777
if plaintiff prevails in such case, he may
have full costs, although the damages
are nominal, 777
EASTERN POINT.
land on, for lighthouse, ceded to United States,
EASTHAM.
land in, for lighthouse, ceded to United States,
EAST ROCK.
of Cut Island, ceded to United States, 44
44
45
INDEX.
975
EDGARTOWN.
hiu'l at oiitraucc of harbor of, ceded to United
States, for lig-hthouses, 44
EDUCATION.
duty of legislature and magistrates to foster, 28, 29
funds held by towns for purposes of, trus-
tees to report annually to selectmen,
&c., concerning, 200
Board of Education^.
how constituted, 210
term of office of members of, 210
vacancies in, how filled, 210
may take and hold grants, &c., in trust, for edu-
cational purposes, 210
to pay over to state treasurer forthwith all
money received for such purposes, . , 210
duty and responsibility of treasurer, .... 210
to prescribe form of school registers, and of
blanks for inquiries and returns, . . . 210
may appoint agents to visit schools, coufer with
teachers, lecture, &c., 211
to arrange for formiug, &e., teachers' institutes, 211
annual report of, with abstract of school re-
turns, to be hud before legislature, 52, 210
when may be put in type, 53
number and distribution of, Ac, .... 53, 227
incidental expenses of, to be i)aid by state, . . . 211
to arrange sections and classes for state scholar-
ships, 214
dutlGS of, in selection, &c., of candidates for
Bcholarships, 214
Secretary of, to be appointed by board, .... 210
to l»e state librarian, 54
to make abstract of school returns, &c., . . 210
general duties of, 210
to give notice of, and attend meetings of
teachers and school committees, . 210,211
to send to town clerks blanks for returns,
school registers, &c., 211,226
to notify school committees, «tc., forthwith,
when reports or returns not made ac-
cording to Ijiw, 227
to return same iifound informal, &c., . . . 227
salary of, 211
travelling and office expenses, to be paid by
state, 211
Clerk of, to be assistant state librarian, . , 54, 211
salary of, 54
Teachers' institutes, may be formed by, . . 211
length of bcssiou, aud expenses of same, how
paid, 211
County associations, to receive fifty dollars
a year from state, if they hold semi-
annual meetings not less than two
days each, 212
EDTJCATIONAIi ASSOCIATIONS.
seven or more persons to be body corporate for
educational purposes, 207
purpose and location to be specified in articles, 207
to have usual corporate powers, 207
may hold real and personal property not ex-
ceeding one hundred thousand dollars, 207
estate not exempted from taxation where used
for other purposes, &c., 207
EGG ISLAND SHOAL.
ceded to I'nited States, 45
EGG ROCK ISLAND.
ceded to United States, 45
ELECTIONS.
all ought to be free, 15
not to be held on days when militia are required
by law to do duty, 58
ELECTIONS — continued.
by the people, of all officers, to be by plurality
of votes, 30,59
Qualification of Electors.
constitutional provisions concerning, . 19, 32, 3S, 39
statute provisions concerning, 5(>, 57
Manner of conducting, A^'D returning Votes.
polls, when may be opened, 58
warrant to specify time for opening polls, . 53
how long to be kept open, 53
not to be kept open after sunset, 58
to be presided at by selectmen, ... 19, 22, 58
presiding officers to be provided with list of
voters, 58
no person allowed tu vote, unless name is
on list, 53
selectmen, when not answerable for refusing
vote, 58
self-sealing envelopes to be provided by
secretary of commonwealth, 58
same to furnished to towns when applied
for, 53
city and town clerks to keep same for use
of voters, subject to order of select-
men, wardens, &c., 58
votes not received, unless in envelope, or open
and unfolded, 58, 59
what to be rejected, 59
for national, state, &c., officers, to be re-
ceived, sorted, &e., by selectmen, &c.,
and declaration made in open meeting, 59
number of, and names of persons voted for,
to be recorded, 59
In cities, how to be conducted, oi
Return of votes, 19,22,25
ward clerks to delivt-r copies of record to
city clerks, who shall record the same, 59
mayor and aldermen, and city clerk, to ex-
iimiue such returns, and, if faulty, re-
quire new returns, ttc, 59
secretary to furnish town and city clerks
with blanks, Ac, for, CO
for state, district, and certain county officers
to be made to secretary within ten
days after election, 59, 68
or such returns may be delivered within
tliree days to sheriff, 59
proof of, by mail, to bar complaint for de-
linquency, . .^ 59,00
when unsealed, secretary to notify return-
ing officers, who shall make new re-
turn, CO
to be transmitted to governor :md council,
with seals unbroken, 09
to be examined by governor and five at least
of council, and issue summons, ... 00
how to be certified, 00
to be laid before legislature, with certificate
of governor, &c., CO
for county treasurer and register of deeds to
county commissioners, 59, 01
blanks for, to be furnished by county
commissioners, 147
for county commissioners, within seven
days, to clerks of courts, 59, GO
blanks for, by whom to be furnished, . . . 147
when and by whom examined ; penalty for
neglect, GO
Penalty for voting at, if not quahfied, CI
for giving more than one ballot, 01
976
INDEX.
ELECTIOITS — continued.
for j^ivin^; false answers to eelectmen, &c., ... 01
for attempting: to influence voters by bribes or
threats, Gl
for aiding unqualified persons to vote, Gl
for disorderly conduct at elections, Gl
on town officers for neglect of duty, 01
on town clerk, &c., for ftiilure to make returns
of votes, 01
for fraudulently obtaining envelope, 68
Of State Officers.
time of holding, 30,02
Governor, 22,23,34,30,02
Lieutenant-governor, 25, 34, 30, 02
CounoiUors 36,37,02
Senators, 39,02,03
Kepresentatives in general court, .... 04
contents of warrant for meeting, 04
town, constituting a district, failing to elect,
may have other ballotings on same
day 04,05
in such case, polls not to bo opened after five
o'clock P. M., 05
proceedings in case of failure to elect in dis-
trict contained in a town, city, or wards
of a city 05
in composite districts ; . . . . 05
in towns, &c., composing part of a district,
selectmen, &c., to deliver to clerk a
transcript of the record of votes, ... 05
certiiicates of election in single districts, by
whom made;and how transmitted, tfcc, 05, CG
and in composite districts, GO
form of certiticate of election, CO
proceedings in case of vacancy in representa-
tive district, 06
blanks for certificates, Ac, to be furnished by
secretary, GO
clerks and selcctmcn,may be paid for services, GO
if vacancy in office of clerk, clerk pro tem-
pore may be appointed, 00
penalty on town and city officers for neglect,
&.C., 60
selectmen and clerks for giving false certifi-
cates, CO
Secretary, treasurer, auditor, and at-
torney-general, 37
Of National Officeks.
Of representatives in congress, 77
meetings, how called, 58, 08
when held, 08
return of votes, 50, OS
proceedings incase of no choice, OS
and in case of vacancies, 08
precepts to be transmitted by sheriffs to
town and city officers OS
penalty on city and town officers for neglect. Oil
Of electors of president and vice presi-
dent of United States, provisions
concerning 61*
(See Electors, tfc.)
Of District and County Officers.
Clerks of the courts, "0-72
of police courts, 509
■when may be had to fill vacancies, 509
Commissioners of insolvency, 7ii-72
County commissioners, ;ii-r2
County treasurer, ''-^-
District attorneys, 7ii-72
Registers of probate and insolvem-y, .... 7ii-72
of deeds, 79-72
ELECTIONS — continued.
Of Town Officers.
moderator to preside at, 160
qualification of voters at 159
what officers to be chosen at annual meeting, . . 160
what officers to be chosen by written ballot, . . 101
if person elected constable does not accept, uew
election to be had, 101
ELECTION SERMON.
coninensation of preacher of, 48
ELECTORS OP PRESIDENT AND VICE-
PRESIDENT.
when ami huw chosen, <i9
names of all electors to be on one ballot, .... 09
each ballot to contain one inhabitant of each
congressional district designated, &c., 09
votes for, how counted, examined, and returned,
&c., 59,09
governor to triinsmit certificate of election, . . 09
if majority not chosen, general court to
choose, 09
vacancies, how filled, 09
when and where to convene to vote for presi-
dent, &c., 09
to vote by ballot, 09
to make and certify lists of persons voted for,
and transmit to president of United
States senate, 09
to proceed conformably to constitution and laws
of United States, 69
compensation of, 69
duties of sheriffs, city and town officers, &c., at
elcetious of, 09
ELECTRIC TELEGRAPHS.
provisious concerning 372-374
(See Telegraph Companies.)
ELDERS.
of churches, when a corporation, together with
minister or deacons, to take, &c.,
gr.ints, ic, 205
ELIZABETH ISLANDS.
one of them, (Sow and Pigs,) ceded to United
States, t -15
EMBEZZLEMENT.
by officers, commissaries, or storekeepers, in
actual service, 122
at fires, to be deemed larceny, 177
by mariners and shipmasters, how far ship
owners answer.able for, 289
of estates of deceased persons, proceedings in
case of, 489
of estates of wards, proceedings in case of, . 546, 547
persons suspected of, in respect to property of
insolvent debtors, how may be cited
in and examined, 597
of property the subject of larceny, to be deemed
simple larceny, 799
by persons in state treasury, 799, 800
by town, city, or county officers, SOO
by officers or servants of any incorporated com-
pany, ^90
by clerks or servants of individuals or copart-
nerships, 800
except apprentices, and those under sixteen
years ^^
by officers or servants of banks, 800
taking by an accomplice to be deemed Liking
by officer, &c. 800
not necessary at trial to identify the par-
ticular money, notes, bills, &c., em-
bezzled, 800
by carriers or other bailees, 800
INDEX.
977
EMBEZZLE ME JSTT — oo»/m«CfZ.
form, oi" indiutuicut ia certain cases of embez-
zlement, 800
particulars of embezzlement need not be
specified, SCO
what evidence may be given at trial, .... 800
what shall not be a variance, 800, 811
how owncrsliip of property embezzled may be
proved, 841
EiSrCAMPMENT.
oimiliii.i, provisions concerning-, 105,106
(See AnUtia.)
em"ciioach:ments.
on hij^hwaya and public places, provisions re-
specting', 2ol
EZSTGIIyTEBRS.
of lire di'partments, powers and duties of, . irS-lSl
(See Fire Departments.)
EWGINEMEN.
to bo appointed by selectmen, &c., where there
is no fire department, 177
number of, to each engine, 177
axe-mcn to be selected from, 177
annual meeting- of, for choice of officers, &c., . . 177
may make rules and rcgailations,and annex pen-
alties thereto, 177
such rules subject to approval of selectmen,
&c., 177
such penalties not to exceed ten dollars, to be
recovered by clerk, 177
to meet once a month to examine engine, »S:c., . 177
general duties of, 177
if negfligent, may be discharged by selectmen,
&c., 178
certain provisions concerning compensation of,
to be in force in places where adopted, 178
chief engineer, &c.. to certify lists to assess-
ors, 178
assessors to examine and certify lists to
treasurer, ^ 178
treasurers to pay, 178
penalties for neglect, and remedies, .... 178
IiOAV exempted from military duty, 93
For private engines, may be appointed by
selectmen, &c., upon application of
owners, 177
if selectmen refuse, county commissioners
may appoint, 177
such euginemen to live near engine, &c., 177, 178
In Boston, exempt from serving as jurors, . 080
In other places, exempt from sen-ing as
jurors by vote of town, or council of
cities, 680
ENGINES, EIRE.
dirtVreut kiiils of, provided in towns, how
manned, 177
penalty for maliciously injuring, &c., 178
Private, to be kept where selectmen, &c.,
direct, if owners do not agree, .... 177
punishment for wilfully, &c., injuring, and ap-
paratus, within twenty-four hours of
fire, 7%
for such injury during the burning, . . 790,797
ENGRAVING.
pl.it.s, &iv.^ for forging or counterfeiting bank
notes, how punished, 808
mouMs for making counterfeit coin, 810
shop bills resemVding bank bills, &c., 811
convicts in state prison not to be employed
in, 874
ENTERING.
dwi-lling house in night time, without breaking,
82* 123
! ENTERING — con«tnM€(f.
with intent to commit felony, no per-
son being put in fear, how punished, . 797
any building, ship, or vessel, ^vith such in-
tent, 797
(.S'ee Breaking and Entering.)
ENTRY.
Into lands, rights of, not defeated by descent
or discontinuance, 692
not to be made except in cases allowed by
law, and peaceably, 707
need not be proved iu writ of entry, .... 093
for breach of condition of mortgage, and
to foreclose same, 712
affidavit and certificate of, in such case, to
be recorded, 712, 713
"Writ of, except on demandant's own seisin,
abolished, saving cert.iin rights, . . . 096
{See Rml Actions^ Forcible Entry and Detainer.)
limitation of right of, upon lands, . . . 775, 776
what it must be, and how continued, to be
effectual, 776
provisions concerning, 692-606
Of actions and appeals, when to be made.
{See ActionSj Appeals.)
Of exceptions.
(See Exceptions.)
ENVELOPES.
for voting, provisions concerning, , 58, 59
(See Elections.)
EQUITY.
JURISDICTIOX OF SUPREME JUDICIAL COURT.
supreme court to have full equity powers, . . 558
to have exclusive jurisdiction of all cases
where relief in equity is prayed for, . 558
may issue writs necessary to secure justice
and equity to courts, corporations, and
individuals, 558
To have jurisdiction in equity in the
following cases: —
for redemption and foreclosure of mort-
gatr*^'s. 558, 714, 717
for enforcing and regulating trusts, 501-503, 558
for appointment of trustees for separate
property of, and damages awarded to,
married women in certain cases, . . . 538
for specific performance of written con-
tracts, 559,575
to comi>cl redelivery of goods secreted and
withheld from owner, 559
to recover of heirs, devisees, &c., payment
of deceased's debts in certain cases, 507,508
for contribution between devisees, legatees,
heirs, and persons liable to same debt
when more than one person is lia-
ble, iSO, 508, 559
for contribution among devisees when land
of one or more is taken for dower, . . 480
in other cases where there are more than
two parties having distinct rights, . . 559
between copartncrsjoint tenants, tenants in
common, and their represeutativea, . 559
between trustees, co-executors, co-adminis-
trators, and their representatives, . , 559
for waste and nuisance, 559, 710, 711
upon accounts which cannot conveniently be
adjusted at law, 559
creditors' bills, 559
cases of fraud, and conveyances of real estate
in nature of mortgages, 559
cases of accident and mistake, 559
biilfl of discovery, 559
97S
INDEX.
EQUITY— continued:
in case of sales of real estate for taxes, . , 86
of illeg'al appropriations of money by-
towns, 1G5
to compel couveyauce of legal estate to
grantee of equitable estates tail, . . . 460
for redemption by debtor of land set off on
execution, 520
in controversies between loan fund associa-
tions and members, 335
in cases arising out of railroad mort-
gages, 3(i6, 367
for closing coriiorations, and in questions
arising upon expiration, &c., of char-
ters, a8S,3S9
■when bank bills are unlawfully detained, , . 30~
for partition of v/atcr rights, mill privileges,
&c., between tenants in common, . . 70G
by one mill proprietor against another to
compel alterations of dams, 761
by creditors, against two or more such pro-
prietors, 7G1
respecting the liability of officers and stock-
holders, &c., of corporations, 30'J, 327, 386
illegal proceedings, insolvency, ic, of
corporations, 301,312,310,321
division between tenants for life, Ac, of
sums allowed to tenants in real actions
for improvement 696
the unauthorized use of trade marks and
names, 298
the prevention of unauthorized erection of
stables and bowling alleys, . . . . 4;j8, 463
for discovery of amount of loss by embez-
zlement on board of vessels, and
apportionment of same, 289
for compelling actions to be brought to settle
titles to real estate, 096
to enforce performance by railroad corpora-
tions of orders of county commis-
sioners, ttc, 355,307,358
to limit period of liability of banks surren-
dering their charters, 313
for superiutendeuee of the proceedings of
courts of insolvency, 682
for restrainingtown agents from purcliasing,
&c., liquor contrary to law, 441
Proceedixgs in Equitv.
cases in equity, how commenced,
upon bill tiled, subpcena, how to issue,
subptcna, how served,
discovery, how sought, and answers, how made,
bills iu, to be indorsed before entry if brought
by persons living out of state, ....
when may be required to be indorsed after
entry, or indorscr changed,
when bill in, for redemption of mortgage, is
inserted in writ, what shall be deemed
commencement of action,
defence in equity to be by demurrer, plea, or
answer,
demurrer iu, to be accompanied by certificate
tliat it is not intended for delay, . . .
answer to be on oath, unless waived,
cases in equity, and motions thereon, to be first
heard by single judge,
rule days to be established for equity business,
court to be always open for hearings, making
decrees, &c.,
cases in, to be entered with probate appeals on
separate docket,
'EQJJXTY' — co]}th}}/ed.
orders and decrees in equity by single judge to
bear date of day when entered, and
day to be noted by clerk, 560
process on tiual decrees of single judge not to
issue until thirty days from entry
thereof, unless waiver of adverse
party is filed, 560
cases pending in one county may be hoard in
any other, 560
orders and decrees iu such cases to be trans-
mitted to, and entered by clerk in,
proper county, 560
not to be made until notice given to adverse
party or his counsel, 561
may be argued in writing in such cases, and
proceedings thereon, 561
court may frame issues of fact for jury in su-
preme or superior court, 561
may issue writs of seisin or execution to en-
force decrees, 561
one justice of court to be designated to attend
in Boston, and hear equity crises at all
times, and he may, by rescript, m^ke
decrees iu any county, 501
papers in cases may be taken from files by coun-
sel for use before court, 561
rules to be made for conducting business and
regulating practice in equity, . . . 561
single judge may, in cases heard for final de-
cree, report evidence and reserve ques-
tions of law for full court, 560
evidence to be taken as in suits at law, 678
in appeals, 561
aflidavits may be used iu, as heretofore, .... 678
Appeal from final decree of single judge, and
proceedings thereon, 560
testimony to be reported, and rules shall
be made th' -refer, 561
no oral testimony to be heard before full
court except in special cases, 561
in case of such appeal, all interlocutory or-
ders may be revised, 560
single judge may make orders for appoint-
ment of receivers, of injunctions, or
prohibition, until appeal is heard, . . 560
appeal from interlocutory decree may be
had, and cfTect of, 560
case may be reported upon interlocutory
questions for decision of full court, . 560
when by accident appeals from final decrees
are not duly entered, full court may
within one year allow entry thereof, . 560
Costs in, where discovery only, and not
relief, are sought, 781, 782
where no special provision is made, , , , , 782
not to exceed similar charges iu suits at
law, 782
In Superior Court.
respecting waste and nuisance, 710, 711
for redemption of mortgages, 714
to determine rights of the several f.ttaching
creditors in certaiu cases, .... 629, 630
Probate Court.
concerning trusts created by will, 503
EQUITY OF REDEMPTION.
(See Mortgages^ Execution.)
ERROR.
in courts of inferior jurisdiction, how prevented
and corrected by supreme court, . . . 553
INDEX.
979
ER'RO'R — contifiued.
circumstantial, not to abate ^vrits, processes,
&c., of courts, C57
"Writ of, in civil cases, may be brought in
supreme court, 553
to be indorsed before entry when all phuu-
tifTs live out of state, C22
Tvhcn iudorser of may be required or
changed after entry, 057
may be brought by administrator de bonis
nou, on judgment rendered by previ-
ous executor, &e., 652
limitation of, 745, 740
not to stay execution, unless bond, witli
sureties, be given to dolcudant ; con-
dition of bond, 740
penal sum of such bond, and sufficiency of
sureties, how determined, 746
bond to be filed in clerk's office, and exe(;u-
tion stayed or superseded, 74G
costs to be awarded to prevailing party, . . 74G
■what damages for delay sliall be adjudged
to defendant, if judgment is affirmed, 740
judgment not to be reversed for certain de-
fects in form, • • • ~^5
nor for not being in conformity with the
allegations of the parties, 745
nor for error in law, except after verdict, 745
nor for mistake in the venue, 745
assignment of errors, &c., to be according
to the common law, and usage in
the state, 746
In criminal cases, may be brought at any
time after judgment, and entered in
any county, 746
case to be examined without delay, but ex-
amination may be adjourned, .... 746
shall not stay execution of sentence, unless
allowed by a judge of supreme court,
with an order for stay, 746
when stay of proceedings is ordered, judge
may make oi'ders as to custody of
plaintiff in error, in letting him to bail, 746
shall not issue in capital cases, uuless al-
lowed by a judge of supremo court,
after notice to attorney-general, &c., . 746
for errors apparent on the record, not pre-
vented by proceedings on appe.ils,
new trials, <S:c., 844
when fmal judgment is reversed for error
in sentence, court may render judg-
ment, or remand the case for that pur-
pose, 746
if defendant is discharged, the legal costs
shall be borne by state, 746
In civil and criminal oases, not capital, may
issue, of course, from supreme court, . 745
ESCAPE.
of debtor arrested or committed on execution,
remedy of creditor against officer or
debtor, 641
from jail, &c, report of to be made, SG6
from prison, penalty on persons aiding, .... 813
from officer, penalty on persons aiding, .... 813
penalty on officer voluntarily or negligently
suffering, refusing to arrest or re-
ceive, &c., 813
of offender from county where offence was
committed, officer may pursue and ar-
rest in any county, 831
of person sentenced for fines and costs, when
sheriff to pay, , 852
ESCAPE — ro»a'H«ef?.
by reason of insufficiency of jail, county to pay
sheriff all money recovered of hira for, 858
from jail or house of correction, how punished, 864
what removal, itc, of prisoners not to be
deemed, 864
from state prison, how punished in different
cases, 87G
for aiding or suffering an escape, 876
ESCHEAT.
claims of commonwealth to property by, how
prnsuruti'd, 717, 718
ESTATES BY THE GUHTESY.
who entitled to, 471
title to, not affected by advancements, .... 475
not affected by right of married women to hold
separati." property, 538, 539
ESTATES usr do'w:er.
provisions concerning, 469-471
how recovered by action, 697
(.SVc Dower.)
ESTATES EXPECTANT.
not to be defeated by alienation, &c., of owner
of precedent estate, &c., except in ca-
ses of estates tail, 466
may be sold, subject to contingeucy, , . . 472, 473
ESTATES OP PBEEHOLD.
whether in fee simple, fee tail, or for life, may
be recovered by writ of entry, .... 692
persons in possession of, how may compel ad-
verse claimants to bring action to try
title, 096
when leases are so considered, 090, 471
ESTATES POE. LIPE.
conveyance of, 466
not to be forfeited by conveyance purporting to
grant greater estate, 406
execution, how levied on, 513
how redeemed when levy has been made on
routs and profits, 531
ESTATES AT bUPPERANCE.
liabilitv of tenant to pay rent, 471
ESTATES TAIL,
may be barred by deed of tenant in tail, or of
tenant for life and remainder-man in
tail, 406
liable for debts of tenant in tail, 472
in remainder only, not liable for debts, 472
when taken on execution or sold by executors,
&c., to be lield in fee simple, . . . 472, 517
remainders and reversions expectant on, barred
where tenant's right of entry or ac-
tion is barred by limitation, 776
Equitable, !iow may be conveyed and remain-
ders and reversions barred, &c., . . . 466
grantee of, may obtain in equity conveyance
of legal estate, 466
ESTATES AT WELL.
all interests in lands to be, if created or con-
veyed witliout writing, . 466
how terminated, 4*2
ESTATES FOR YEARS.
not to be forfeited by conveyance purporting to
grant greater estate, 466
ESTATES OP PERSONS DECEASED.
Descent of real estate, 474, 475
Distribution of personal estate, 485
Insolvent estates, 497-500
How disposed of by will, 476-480
letters testamentary on, 481,482
Administration of, how granted, &c., .... 483
special, how granted, &c., 484
980
INDEX.
SjSTATES of deceased, &c. — co7iiiniiC(l.
Executors in their own wrong, 4s5
Public administrators, -IS**., -it^
Of persons not inhabitants of this state,
admiuistration and settlement of such es-
tates, SOS
real estate to descend according to laws of
this state, personal, according to laws
of their own country, 508
proceedings in case of iusolvcucy of, . . . GOS
Gexekal Provisions.
subject to payment of deceased's debts, 474, 470, 485
may be taken for deceased's debts ou execution
against executors, 52-1
may be redeemed as if taken during life, .... 523
after redemption not to be taken for other debts, 524
to whom real estate shall descend 474, 475
to whom personal estate shall be distribu-
ted, 4S5
when to escheat to commouwealth, 4S5
inventory of, to be returned within three months
by administrator, &c., . , 488
when need not be returned, 488
Seal, if undivided, to wliom taxable, 75
title to which is in dispute, how taxable, . . 75
when personal is insufficient, may be sold to
pay debts, 489
proceeds of such sale to be deemed person-
al estate, 489
mortgage of, in certain cases, to be deemed
personal assets, 4S9, 490
if redeemed by mortgagor, to be released
by executor, &c., 490
taken on execution, to be deemed personal
assets, 490
held by executor, A^c, may be sold, .... 490
and may be sold after foreclosure upon ob-
t:uniag license, 490
if not so sold, bow distributed, 490
sales of land by executors and administra-
tors for payment of debts, . . 510, 511, 512
Personal, where and to whom taxable, .... 7C
how may bo collected, SP.
to be accounted for at appniisal, unless, &c.. 494
assets, what to be deemed, 489, 490
may be ordered by probate court to be sold, 494
and if sold, executor, &c., to account for
proceeds, 494
expenses of luneral and last sickness, how
paid from, 4S4, 485
when . embezzlement from is suspected,
judge may cite and examine suspected
persons, 489
notice of appointment of executor, &c.,
and payment of debts and lega-
cies 491, 492
notice to be given of taking administration, 491
how evidence of, to be perpetuated, .... 491
when omitted by accident, Ac, and when
evidence is not perpetuated, 491
limitations of actions by creditors agaiust execu-
tors and administrators, 491
proceedings when right of action accrues after
two years, 491,492
administrators de bonis non, appointment, lia-
bility, &c., of, , 492
provisions not to bar actions against heirs, . . . 492
debts may be paid after one year from notice of
appointment by executor, if be has
not notice of more demands than the
assets will pay, 492
ESTATES OP DECEASED, &c.~co)}iinued.
when whole estate is thus paid out, executor,
&c., not liable to other demands, . . . 492
when property remaining after payment is in-
sufiicieut to discharge new demands,
it shall be distributed as in case of in-
solvent estates, 493
when estate is exhausted by charges of admin^
istration, allowance to widow, &c., ex-
ecutor, ifcc, not liable to creditors, . . 403
when executor, &c., may demand security from
legatee, &c., to refund, 493
legacy, &c., may be recovered by action at law
without limitation, 493
annuity by will, wheu payable, 493
suits for, not to be brought against executor
witliin one year after giving bond, . . -193
apportionment of annuity in certain cases, . . . 493
liability of executors, &c., if they uuneccssarily
delay collection of debts, &c., . . 493,494
claims of executors, &c., may be submitted to
arbitration, 494
or be decided by court or jury on appeal, . 494
hability of estate of deceased joint debtor, . . . 4'>4
provisions in case of death, removal. Arc, of
executors, ic, . 5i)3, 504
Accounts and settlements, &c., . . . 4'.i4, 495
personal estate, how accounted for, .... 494
executors, &c., to be charged with increase
and allowed for decrease of appraisal, 494
court may order sale of personal estate and
outstanding claims, 494, 495
executors, &c., may transfer mortgages, . . 495
not chargeable with bad debts, 495
chargeable with certain eflects not in in-
ventory, 495
and with income of real estate, if re-
ceived, 495
to render account within one year, an<l fur-
ther accounts wlieu required, .... 495
accounts may be allowed on oath of one
only of joint executors, &c., 504
how liable for not rendering accounts, . . , 495
allowance to, for services, 495
accounts settled, in what cases may be
opened, 495
costs recovered against executors, &c., how
paid and allowed, 4%
final discharge of executors, &c., and evi-
dence thereof perpetuated, 504
money due, if not claimed, to be deposited,
and how to be paid out afterwards, . 5(H
claims may be compromised, 504
and certain interests in real and personal
estate released, 501, 505
Sends, provisions concerning by executors,
administrators, &c., 481, 483, 4s0, 505,
500, 507
LiAniLiTY OF IlEins, &c., FOR Dkbts of Dkckaseo.
estate of deceased in hands of heirs, &c., liable
for certain debts, 507
mode of proceeding in such Cfise, 507
estates of heirs, &c., liable for such debts after
death of heir, &c., 507
if more than one is liable for debt, creditor may
proceed in equity, 507
case of insolvency of lieir, &c., 507,508
action not to be dismissed for not including all
who might be defendants, 508
new defendants may be sunnuoned in, and
amendments allowed, 508
I>fDEX.
981
ESTATES OP DECEASED, Sec — continued.
heirs, &c., liable to contribution between them-
selves, 50»
EVIDEINTCE.
no person to be excluded from giving', by reason
of crime or interest, 673
nor by reason of non-belief in any reli^on, 073
but conviction of crime, and disbelief iu tlie ex-
istence of God, may be ehowa to af-
fect credibility, G73
parties may bo witnesses, and their wives in
certain cases, G73, 074
and their depositions may be taken, .... G78
of the truth of the matter may be given iu evi-
dence in justification by defendant in
civil actions for libel and shmder, . . CG2
justifying ia actions of slander and libel not
proof of malice, G62
rules of, not changed by laws relating" to plead-
ing and practice, CG3
declarations and other pleadings not to be, . . . 661
offer of judgment not to be in certain cases, . . G61
answer of defendant on one matter not to be evi-
dence against him upon issue joined
on another matter in same answer, . . GG2
of entry for breach of condition broken, and to
foreclose a mortgage of real estate,
how perpetuated, 712
of sales under mortgages of real estate 'with
power of sale, how perpetuated, . . . 716
of notice to foreclose mortgage of personal
property, 75G
copy of depositions to perpetuate testimony,
wheii admissible, G7S
assignment of an estate of an insolvent debtor
conclusive of assignee*3 'authority to
sue, uS7
what may be shown in certain cases of embezzle-
ment, 800
what will not be a variance, 800
what need not be shown on trial of receivers of
stolen goods, &c., 801
on trial for fraudulent over issue of stock, or of
false entries of transfers of, books
themselves to bo evidence, 802
in prosecutions for forgery or counterfeiting
bank bills, or United States securities, 809
testimony of president and cashier, when
may be dispensed with, 809
certificates imder oath of secretary of the
treasury admissible, 809
possessing and uttering a mutilated bank bill,
when evidence of mutilation, .... 810
in case of malicious gathering up and retaining
bank bills, each bill need not be proved, 810
in trials for lottery cases, defendant to prove
genuineness of tickets sold by him, . S24
by depositions, how taken, 074-078
In equity, shall be taken as in actions at
law, 078
but not orally before full court, 501
aflftdavits may be used as heretofore, .... 078
taken orally before a single judge, may be
reported to full court, 5G1
for special reasons full court may allow
other evidence to bo taken, 501
Proof of statutes and laws, G7S, 079
records and proceedings of courts of other
states, how authenticated, 678
printed copies, published by authority, of
acts and resolves of their state, to be
admitted as sufficient, 678
EVrDEWCE — continued.
of laws of other states, when to be snfficient, 678
unwritten law of other states and territories,
how proved, 079
the existence, ctfect, and tenor of foreign laws,
how proved, 679
EXAMINATIONS.
X)reUmiuary, »>f persons charged with of-
fenc^-s, 832, 833
may be adjourned for not over ten days
at one time, 832
of persons charged with threatening to
commit offences, 837
EXAMINERS.
board of, in each county except Suffolk and
Nantucket, of whom to consist, . . . HO
to examine returns of votes for county com-
missioners, 00
when to meet for this purpose, 00
to notify person chosen, 00
to file returns, after examination, iu clerk's
office, GO
penalties for neglect of duty, 60
to examine jmd allow aceounts of commis-
sioners, 140
comp<'nsLitiouof, 149
EXCEPTIONS.
Taking ExcEmoxs, axd Proceedings before
ENTllY THEREOF.
, may be taken, on motions for new trials, and
in all cases, civil or criminal, by party
aggrieved, by opinion, ruling, &c., of
single judge of supreme or superior
court iu matters of law, 5GG
when trial by jury is waived, and case is
beard by court, GGI
in cases of information for intrusion, . . . 719
in trials of libel for divorce, 5:J3
to decisions on demurrers in certain ciises, . GGI
by third parties, in certiiin cases, on adjudi-
cation, that an amendment is for same
cause of action, 002,003
to be reduced to writing in a summary mode,
filed with clerk, notice given to ad-
verse party, and presented to court
within three days after verchct, and
before adjournment of court, .... 50G
further time may be Jillowed by court, not ex-
ceetling tlvc days, unless by consent
of adverse party, 5fiG
on being examined and found correct, shall be
allowed by judge, 5Cfi
adverse party to have an opportunity to be
heard upon allowance of, in all cases, , 566
to be restored to files of court within five days
after being presented to judge, vrith his
certificate allomng or disallowing
same, 56S
unless judge finds further time, not exceeding
ten days, except for certain reasons
necessary, 566,567
reasons for delay in restoring of, to files, to
be certified by judge, 500,567
trial of fact, not to be prevented or delayed by
allowance of, 567
unless atljudged frivolous, or intended for de-
lay, no judgment to be entered, . . . 567
if adjudged frivolous, Ac, sentence may be
passed, or judgment and execution
awarded or stayed on terras, notwith-
Btanding allowance of, 567
982
INDEX.
EXCEPTIONS — continued.
if cxecutiou is not awarded, &c., security by
bond, attachment, «tc., to stand until
final order is made, tVc, o;i.'i, 5'j7
if judge disallows, fails to sign aud return, or
alters, cither jiarty aggrieved may es-
tablish truth of, before supreme court, 537
111 criminal cases, party filing may recog-
nize to prosecute, 844
failing to recognize, may be committed, . . &41
may be taken in capital cases, aud proceed-
ings thereupon, G54
Entry and Tiiial of in Supreme Court.
full court to have jurisdiction to hear and de-
termine all questions of law upon, 553 554
taken ia supreme or superior court, copies and
papers relating to, must be transmit-
ted within twenty days after adjourn-
ment of term, and entered on law
docket of supreme court in proper
county, 5G7
copies of certain papers, when exceptions are
taken in superior court, to be pro-
pared and transmitted to supreme
court, &c 5G3
when entered in supreme judicial court for
commonwealth, clerks of the courts
for their respective counties to pre-
pare proper papers, 557
ori^nal papers needed in supreme court, how ,
transmitted, &c., • , . 5(irt
if not entered, adverse party may make com-
plaint, aud have judgment, &c., af-
firmed, 555
if by accident exceptions or complainta are not
duly entered, court may, upon peti-
tion filed within one year, allow entry
thereof, 555
security discharged by non-entry of in due time,
not revived by subsequent entry on
leave, 555
when disallowed, not signed, or altered, how
questions may be entered, »tc., in su-
preme court, 507
rules to be made for settling truth of, in such
cases, 507
entry of, not to transfer case, but only question
to be determined, 507
proceedings upon hearing of, and rendering
judgment in the case, 654, 555, 557, 50;J, 507
if at^udged frivolous, &c., upon final hearing,
double costs and twelve per cent, in-
terest may be awarded, 554
court may affirm former judgment with addition-
al damages, reverse the same in whole
or in part, or enter other order, &:c., . 554
if judgment has been entered, where exceptions
have been taken, full court may vacate
same without writ of error, &e., , . . 554
Entry of, &c., in supreme judicial court
for commonwealth, i>'jo, 550
taken in counties of liarnstable, llristol.
Pukes, Essex, Middlesex, Xantueket,
Norfolk, Plymouth, and Snlfolk, to be
entered in supreme court for common-
wealth at Boston, 555, 550
taken in counties of Berkshire, Eranklin,
Hampden, Hampshire, and Worces-
ter, niay,by consent of parties or order
of judge, be entered in said court for
commonwealth at lioston, 56?
EXCEPTIOlSrS — rnnflnned.
order of cutry of, in said court, from different
counties, &c., 557
in criminal cases, to be entered on separate
docket in said court, 557
■when to be in order for argument, A-c, 557
Entry of, from superior court in counties
of Berkshire, Franklin, Hamp-
den, Hampshire, and "Worcester, 556
to be entered at next term of supreme court
for proper county, 554
or by consent or order of court may be
entered in court for commonwealth at
Boston, 507
EXCHANGE, (st.'e£///so/^a;c/ian5feO . . . 203,584
598, 054
EXECUTION".
issued on judgments for damages awarded for
flowage, 757
what may be levied on, proceedings, .... 757
on judgment for which debtor lias been arrested
and discharged, not to run against his
body, 0o7, 038
when may be issued against absent defend-
ants, 005, 040, 047
how issued in favor, and against executor, ad-
ministrator, and the estate of the de-
ceased, 048,051, 052
how, for seisin in writ of entry, if either party
dies after judgment for demandant, , 095
for collection of military fines, 110
for assessments for support of paupers, may be
issued against kindred, 392
in suits on administration bonds, how awarded
and served, 500, 507
against sheriff, to run ag;dust property only, . 151
ahas, to run against body of sheriff, after
removal from office, 151
Forms of, to be as heretofore, unless altered
by courts, 080, 087
alterations in, may be made by the courts
when necessary, GS7
to be under final control of supreme court, 087
to be same on judgments in civil actions in
favor of state as those in favor of cit-
izens, 080
To be returnable, in all cases, in sixty days, 087
In cases of seizure and libelling forfeited
goods, 773
Upon recognizances for delits, 771
may run into every county, 771
not to issue after three years, 771
when for twenty dollars or less, not to run
agiuust lands of conusee, 771
when wrongfully issued, remedy may be by
audita querela or otherwise, as when
issued on a judgment, 772
By a justice of the peace or police court,
for damages exceeding twenty dol-
lars, shall be so framed as to direct a
levy on lands of the debtor, . . . 080, 087
may run into any county for levy on equity
of redemption, 523
may be issued by justices of the peace after
commission expires, 010
Against executors and administrators, for
deceased's debts, to run only against
his property in their hands, 051
for costs, only to run against their own
goods and bodies, 051
Not to issue, until twenty-four hours after
judgment, 686
INDEX*
983
EXECtTTION" — con^;n»erf.
not to isBuc ag^aiust absent defendants until one
year after judgment, unless bond is
given, 605, 64C
on judgiuout appealed from, unless appeal
is waived, 503, 607
not to be takeu out hy demandant on writ of
entry, on judg-ment for seisin, if there
is judgment against him for balance
due fur improvements, until ho has
paid balance, G94
original not to issue unless within one year
after party is entitled to sue out same, C8G
writ of acisin on a writ of entry may, in cer-
tain cases, issue alter a year, 095
alias and otiier successive, uot to issue unless
within live years after return day of
preceding, 686
May be obtained on scire facias, after time
fur taking out executions, if judgment
is unsatislied, CSO
when property sold on preceding, was not
liable therefor, and damages have been
recovered of officer or creditor, . . . CSO
when, after execution and levy are re-
tm-ned and recorded, it is ascertained
that the property levied on cannot be
held thereby, 519
when an execution against a corporation
has been satislied in part by service
on a member, and the property or
damages are recovered back from
creditor or oflicor, 686
Hecording of, in registry of deeds, when and
how required when issued on judg-
ment in a writ of entry for possession
of land, 690
Set-off of exccutious, when and how may be
made, 687
I.KVY AND Setoff on Ui:al Estate.
all real estate of debtors, including lands fraud-
ulently conveyed, &c., may be levied
on, 516,517
also all rights of entry into lands, and redeem-
ing mortgaged lands, 516
estates tail, whi.ili can be barred by tlie person
entitled thereto, may be levied on, and
with what effect, 472,517
levy to be considered as made when land is
taken, . . , i 510
estate levied on, to be appraised by three disin-
terested, Ac., men, who shall be sworn, 517
and described in all cases by metes and bounds or
otherwise, so that it may be identified, 517
after land is taken, notice be given to debtor by
officer, and reasonable time allowed
for appointment of appraiser, .... 519
such description may be in officer's return or
certificate of appraisers, 517
and contained in either, may be adopted or re-
ferred to in the other, 517
appraisers, liow appointed, 517, 520
to be sworn before a justice of the peace or
the officer, 517
to proceed to view land witli oiBcer, and ex-
amine it so as to form estimate of value, 517
certificate of appraisement, to be signed by,
and indorsed on execution, 517
dissent and refusal to sign by one of, not to
vitiate levy, if he was sworn and
acted with the others, 517
EXECtTTIOW — continued.
to value estate as fee simple in possession,
unless indorsement on the execution
describes it to be a less estate, .... 517
may appraise several parcels of land, if
levied on at same time, separately
or together, 517
same may appraise several parcels, when
taken successively, or new may be ap-
pointed for each, 517
land of banks taken on, may be sold at auction, ;i08
what notice of sale of, to be given by the
officer, 308
sale of, may be adjourned seven days at a
time, 308
mortgaged to banks may be sold on execution, 308
casliier, &c., in such case to furnish officer
with copy of notice, &c., 308
and officer, if requested, to file notice in
registry of deeds, 308
mortgages on real estate, held by insurance
companies, may be sold on, 322
directors of insurance companies neglecting to
pay, &c., to be personally liable, . . , 327
against a corporation, stockholders whereof are
liable for it, debts, how may be satis-
fied, 340
seizure and sale of franchise of corporation, 387, 388
how levy to be made on share of tenaut in com-
mon, &c., or on mill, »S:c., that is not
divisible, when debtor's iutorest is
more than sufficient to satisfy, &c,, 517, 518
levy on undivided part of estate makes judg-
ment debtor tenaut in common with
owner thereof, 517,518
passes all debtor's freehold estate, unless greater
than in description, 517
Estates for life, may be appraised and set
off like other real estate, or rents and
profits may be levied on, 518
when rents and profits are levied on, their
annual value to be estimated by ap-
praisers, 518
estate set off for such time as will satisfy
demand, if life estate endures so long, 518
method of computation in levies on rents
and profits, 518
Estates under lease to a third person, levy
on binds lessee to pay rent wholly or
in part to the creditor, 518
what seisin, &c., of premises shall be deliv-
ered to creditor, &c., by officer in dif-
ferent cases, 518
Heturn of execution and certificate of doings
thereon, where to be made, 518
what facts shall be set forth in the officer's
return or certificate, 519, 520
execution and return to be recorded in
registry of deeds mthin three months
of completion of levy, 518
such record of justice's execution to be
prima facie evidence of regularity, . . 518
cxxiensc of record to bo added to charge of
levy, 518
levy, if not so recorded, void as against at-
taching creditors and purchasers with-
out notice, 518, 519
though not so recorded until after three
months, valid as against attachments
and conveyances made afterwards, . . . 519
if void, creditor may waive it, if not re-
turned and recorded, 519
984
INDEX.
'E'K'ECXJTIO'N — contimied.
if rt-'turueil aud recorded, creditor may hare
alias execution ou scire facias, .... 51fl
proceediuge in such case, 519
how such estates may be redeemed, .... 620, 521
Set-off, &c., of Mortgaged Lands.
Bights of redeeming mortgaged estate
may be set oft" ou execution, 5iil
and appraisers shall deduct eucuiubrance or
mortgag-e, when known, from estima-
ted value,- and sum so deducted bIiuII
be stated iu the return, 521
when mortgage, Arc, is not allowed for,
creditor to hold premises, A-c, .... 621
when such estates are set off, how may be
redeemed, 521
if mortgage is paid creditor, how may be re-
deemed, 521
if not redeemed, creditor to hold premises, 521
if right levied on is not redeemed within one
year, creditor to hold promises, . . . 521
when lands are in dilTercnt counties, may bo
set off by an officer of either county, . 523
Sat-e, &c., of Mortgaged Lands.
Rights of redeeming mortgaged estate
may be sold at auction if creditor so
elects, 522
what notice of sale shall be given by officer to
debtor, and what notifications to be
posted, &v.y 522
sale may be adjourned, ttc, and what notice
to be given of adjournments, 522
levy to take effect from lime of giving notice,
return may bo completed afterwards, . 522
deed to be given to purchaser by officer,
which must be recorded within three
montlis, 522
mortgaged estates so sold, may be redeemed
by judgment debtor within one year, . 522
if mortgage is paid by purchaser, how re-
deemed by debtor, 522
remedies of debtor for recovering right of
redemption, 522,523
when lands are in different counties, may be
sold by an officer of either county, . . 523
Lew o:h Personal Property.
may be levied on personal chatt(.'ls, G87
on coin, and the same paid to creditor, . . , GS7
on bank notes, and other evidences of debt
circulated as money, 687
what personal property is exempt from, . , . , GS8
when ownership or liability of property to be
taken is doubtful, officer may require
indemnity, fiss
goods seized on, to be kept four d;iys at least, . 088
if not redeemed, to be sold within fourteen
days, CSS
Sale, notice of, how given, OSS
if value of goods exceeds three hundred dol-
lars, shall be advertised at request of
either party, aud may be sold within
sixty days, OS.S
may be adjourned not more than seven days
at a time, f.8S
adjouruniGut of, how notified, OSS
if bidder refuses to take aud pay forany arti-
cle,it may be re-sold within ten days, 0K8, GsO
loss on re-sale and damages fecovered of bid-
der, to be applied iu payment of ex-
ecution, 688, 089
'EX^CTJTIO'N — CO)} finned.
return of, by officer making sale, how made, 689
officer committiug fraud m sale or return on,
liable to live times actual damages, . . C89
money received from sale, how applied, . . 689
how, when there are different attaching
. creditors, or seizure ou different ex-
ecutions, 689
when levied on shares in corporations, or
other property not required to be re-
moved, officer to notify officer previ-
ously attaching, levying on the same
iu certain cases, C89
if, after sale, first officer pays over balance to
debtor without such notice, he will
not be hable on account of second at-
tachment or levy, G89
On shares in corporations, 089, 090
may be levied on the shares of stockholders
in any corporation in this state, . . . 689
if attached iu same suit, to be seized and sold
like other personal property, 689
if not attached, officer to leave copy of exe-
cution with officer of corporation, . . 689
sliares considered as seized when copy is so
left, 669
recording officer of corporation to give offi-
cer exhibiting an execution certificate
of number of debtor's shares, .... 6S9
after sale, officer serving execution to leave
with recording officer of corporation,
within fourteen days, copy of execu-
tion and return, 689
purchaser then entitled to certificate of
shares purchased by him, 689
entitled also to all dividends which accrued
after attachment, if any in the suit, . . 690
Levy on terms for years, levied on terms
of one hundred or more, if fifty years
thereof are unexpired, in like manner
as on real estate, 090
other terms for years to be levied on in like
manner as personal estate, except debt-
or to have fourteen days' notice of sale, 690
Arrest of tue Body on.
■when may be served by arrest of body, .... 034
affidavit for, before what magistrate to be made,
and wliat to contain, 634
for costs, debtor maybe arrested without affi-
davit, 634
when attorneys at law may be arrested on ex-
ecution recovered for money collected, 634
arrest not to be made after sunset, without spe-
cial authority from magistrate, . . . 635
how may be made when debtor lias given
special bond to jailer to surrender him-
self in thirty days, G4D
debtor, how dischai-ged from, 640
Special Provisions.
if levy is on land, the record title to which is in
name of other than debtor, Ac, ac-
tion for possession to be brought
within one year, 523
fees and charges of levy to be added to <lebt, . , 523
proceedings by heirs, executors, A'C, of debtors
and creditors, 523
right of redeeming land set off on one execution,
may be taken and sold on another, . . 523
land of deceased persons may be taken on, . . . 523
and may be redeemed as if taken during life
time, 523,524
INDEX.
985
hiX:ECUTIO'N~ continued.
after redemption, not to be taken for other
debts of deceased, 524
land may be taken on, in favor of executor, . . 524
dower in lands taken on, 524
lands taken on, in favor of state, to bo sold at
auction, 524
redemption of such lands, 524
homesteads, to the value of eight hundred dol-
lars, exempt from levy on, Are., . . . 524
mode of levy when property in which home-
stead exists exceeds eight hundred
dollars in value, 52G
money collected on, if not paid over, officer lia-
ble to five times lawful interest, . . . 091
Service of, when in the alternative, may be
directed by the creditor, 6S7
to be on real or personal estate, as creditor
directs, 687
may be finished by second officer if first dies
or becomes unable, 690
certificate of proceedings, how to be made in
sucli case, GOO
may be finished by officer who begins, al-
though removed from office, 690
begun before, may be completed after return
(lay, 690
not afi"ected by death of cither party, alter
property is seized, 690
may be made on corporate property on exe-
cution, against corporation, 087
Suspension of levy on, Iiow made by reason
of prior attachment, 690
if in such case prior attaehmeut is dissolved,
or part of estate is set off or sold on,
how long property to be held by seiz-
ure on subsequent levy, 090
Death, of party or officer after commencement
oflevy, clTectof, 690
Supersedeas of, in cases of review, 740
EXECUTIVE DEPARTMENT OP THE
GOVERJNTMENT.
not to exercise legislative or judicial powers, . 17
EXECUTIVE COUIsrCIL, (see Council,) 23,20,36
EXECUTORS.
to have letters testamentary when will is allowed, 4S1
to 2ive bond, 481
bond to be approved by judge of probate court, . 505
condition of bond, 481
condition when he is residuary legatee, . . 481
in such case, need not return inventory, . , 481
such bond not to discharge lien of credi-
tors on real estate, except, &e., . . . 481
when exempted from giving bond for proceeds
of sale of real estate, 505
when exempted from giving sureties on bond, 481, 482
when new bond may be required of, 505
refusing to acccjit trust, &c., letters may be
granted to other executors, &c., . . . 482
administration during minority of, 482
in certain cases, ndniinistration, with will an-
nexed, to be committed to widow, &c., 482
bond in such cases, 482
of an executor, not to administer estate of first
testator, 4S2
to return inventory within three months, . . . 488
need not return inventory, if they have given
bond to pay debts, &c., 488
may foreclose mortgage, 489, 490
to hold premises in trust until redeemed, . . . 490
may sell real estate held in mortgage, or after
foreclosure by obtaining license, . . . 490
83 124
EXECUTORS — con(iH?/erf.
to give notice of appointment, 491
limitation of actions against, by creditors, . - . 491
when assets are received after two years, . 491
when action fails from defect in form, insuffi-
cient service, &c., new one may be
commenced, 491
proceedings when right of action accrues after
two years, 491, 402
not liable to actions within a year, except, &c., 492
when not liable for delieicncy of assets, .... 492
may be discharged on proof of payment of
whole estate, before notice of other
demands, 492
and not required to represent estate insolvent, 492
if he pays away part, and remainder of estate is
insufficient to pay subsequent de-
mands, to be liable only for part that
remains, 492, 493
if there are two or more such demands, he may
represent estate insolvent, 493
not liable to creditors when estate is exhausted
by paying preferred debts, 493
when may demand security of legatee, &c., to
refund, 493
suits agiunst, for amiuity, not to be brought
within one year Jifter giving bond, . , 493
liability of, in case of unnecessary delay to col-
lect debts, &c., 493, 404
claims of, Ac, may be submitted to arbitration, 404
or decided by court or jury on appeal, ... 494
■ to account for personal estate at ai)praisal, . . 494
to be charged with increase, and allowed for de-
crease, of appraisal, 4'.)4
upon petition of, court may order sale of personal
property and outstanding claims, . 41*4,405
may transfer mortgages, 4<,t5
not chargeable with bad debts, 405
chargeable with certain efieets not in inventory, 495
with income of real estate, if received, . . . 495
to render account within one year, and further
accounts when required by the court, 495.
how liable for not rendering accounts, 495
allowances to, for services, 495
costs recovered against, how paid and allowed, 496
duties and liabilities of, when estate is insol-
vent, 400-199
may be sued after eighteen months, if ques-
tion of insolvency of estate is not set^
tied at that time, 409
penalty on, for neglect to settle accounts
within six months of commissioners'
return, 499
powers and duties of, as to redeeming lands of
testator taken, &c., on execution, 523, 524
of trustee not required to accept trust, 501
sales of land by, for payment of debts, . . . 51Q-512
provisions common to sales of land by guardians,
executors, and administrators, . , 514,515
registers of probate and insolvency not to be in
their county, 082
suits between co-executors and their reprosenta--
tives may be brought in equity in su-
preme court, 559
to pay in full judgment recovered for goods at-
tached against tlie deceased as an offi-
cer, 648
may voluntarily take upon themselves the pros-
ecution or delence of actions cont-
menced by or against the decc-ased,
(H8, 049,051,(152
or may be cited in, 04^ 652
986
INDEX.
G51
Go I
051
r.51
051
G51
EXECUTORS — con filmed,
if they do not appear in such cases, judg--
ment bow entered, (H8
may apply to county eommissionere in cascB
where the deceased had a ri^ht of ap-
plic^ition and did not apply before his
death, CoO
in actions against, for tort committed by de-
ceased, actual damay;e8 only to be re-
covered, 051
of a trustee, carrier, or depositary, who recovers
jud^neut for goods, or the value of
goods belonging to others, not to take
the same as assets of the estate, but to
deliver them to the owner, G51
not to account for goods returned upon a judg-
ment of return in replevin, 051
writ and execution against, on account of debts
due by the deceased, not to run against
their bodies nor their own estate, , .
personally hable for costs in actions commenced
or prosecuted by themselves, ....
execution in such case to be awarded agiunst
their bodies and estate personally, . .
when judgment is for debt and cost, two execu-
tions to issue, one for costs ag:unst ex-
ecutor personally, and the other for
debt against estate of deceased, , . .
costs paid by, may be allowed in their accounts,
scire facias may be sued out against, on sugges-
tion of waste, when execution recov-
ered against, for debt of deceased, has
been returned unsatisfied,
may in such case be issued by justices of the
peace, C05
by or against on judgments recovered for
penalty of bond, covenant or agree-
ment, against deceased, when there are
subsequent breaches, GSO
liable in such action for whole debt, . . . . C51
death of, not to abate suit commenced, but same
may be prosecuted by administrator
de bonis nou, G4S-052
dying after judgment by or against him, scire
facias may be sued out by or against
administrator de bonis non, and a new
execution issued, 052
execution in such case, how to issue, . . . . 052
writ of error may be brought by administra-
tor de bonis non on such judgments,
in actions by and against executors, how de-
mands -by and against the deceased
may be set off,
may be prosecuted in actions for waste com-
mitted by deceased, whether actions
are commenced before or after his
death,
may tender sums due on mortgages, of which
their deceased owned right of redemp-
tion, and bring or prosecute suits for
redemption,
shall acknowledge satisfaction, or give release
■when an execution for possession on
a mortgage has been levied, and sub-
r sequently paid 715
052
o:o
709
715
EXECUTORS — continued.
liable to be summoned as trustees ou account
of debts, legacies, and effects in their
hands, 723
how, in cases where deceased was sum-
moned as trustee while living, . , 725, 726
to scire facias on judgment in trustee pro-
cess, in certain cases, 726
In their own wrong, when to be regarded as,
and liability of, 485
how far hable to rightful executor, .... 485
not allowed to retainer deduct effects, ex-
cept, &c., 485
Beatii, Removal, &c., of Executor.
upon death of, administrator de bouis non to be
granted, 503
may be removed by probate court for cause, and
if sole, new one appointed, .... 503,504
acts of, before removal, to be vaUd, 504
marriage of executrix extinguishes her author-
ity to act, 504
if there is no other executor, &c., court to
appoint, 504
may resign by leave of court, 504
Accounts, Discharges, Comprosiises, axd
Releases.
joint accounts of, may be allowed ou oath of
one,
final discharge of, when to be given and re-
corded, and effect of,
how to dispose of money not clauncd within six
months after decree of payment, . . .
may be authorized by com*t to adjust claims by
compromise,
and to release certain interests in estates repre-
sented by them,
provisions concerning suits ou bonds, . . . 605'
EXECUTORY DEVISE.
when estate may be sold subject to contingency
of, 472,
EXHXBITIOIsrS.
provisions concerning,
(See Theatrical Exhibitions.)
EXPECTANCY.
estates in, not to be defeated by alienation, &c.,
of owner of precedent estate, &c., ex-
cept in cases of estates tidl,
may be sold, subject to contingency,
EXPLOSIVE SUBSTAia"CES.
regulations concerning sale, &c., of, . .
EX POST FACTO LA'W.
not to be passed,
EXPRESS REPEAL.
of enumerated acts, Ijy General Statutes.
EXTINGUISHMEWT,
504
50*
5l>4
5(H
505
-50?
472,
400,
473
403
4<*.G
473
401
510
881
of fires, provisions concerning, 17S-1S1
towns and cities may use water from aque-
ducts for, 375, 370
penalty for -wilfully obstructing, . . . 700, 707
EXTORTION.
of money by threats, attempts at, how pun-
ished, "''3
by taking illegal fees, how punished, 814
INDEX.
987
F.
FACTOR.
in possession of merchandise, to be doomed
owner thereof, for purpose of making
sale, 294
contracts or pledges by, concerning merchan-
dise, &c., iu his possession, to be
binding, 2W
lien of, for expenses and charges, not aflected
by these provisions, 295
penalty on, for fraudulently pledging or dis-
posing of property intrusted to Iiim,
&c., S03
FAIRHAVEN.
laud in, ceded to United States, 45
harbor, penalty for boarding vessels in, with-
out leave, except, by pilots, &c., . . . 290
what to be deemed limits of, for certain
imrposes, 2D0
penalty for taking certain fish in, by per-
sons living out of state, 431
FALL KIVEK.
harbor of, penalty for boarding vessels m, with-
out leave, except by pilot, 290
what to he deemed lunits of, for certain pur-
poses, 290
FALMOUTH.
binds ill, ced-'d to I'nited States, 44,45
FALSE IMPRISOIJ'MENT.
actions for damages for, to be brought within
two vcars, 777
FALSE PRETEWCES, TOKENS, &c.
jurisdiction of oiR'ncos of obtaining property
by, given to justices of the peace, &c., 570
obtaining property by designedly false intent,
how punished, 802
signature to certain written instruments, , 802
representations as to purchaser's means or abil-
ity to pay, must be in writing, &c., . . 802
FALSELY ASSUknSTG.
to be a juKtice, sheriff, Arc, bow punished, . . . 814
FALSELY PERSONATENra ANOTHER.
and thereby obtaining property, to be deemed
yimjtle larceny, 802
FARMERS' CLUBS.
properly organized, Ac, to receive state publi-
cations from secretary of board of ag-
riculture, 378
securing such benefits, to make annual returns
to secretary of board, 379
FARMING UTENSILS.
i-xi-nijited fruiu taxation, 74
FAST DAY.
legislature not to sit for ordinary business, and
public offices to be closed, 49
courts not to be opened, except, &c., .... G17, CIS
?jillsofexchange,&c., maturing on,when payable, 293
FATHER.
retains the common law right to assign his mi-
nor child's services, 551
to support his poor children and grandchil-
dren, 392, 545, 540
may appoint, by will, a guardian for Ms minor
children, 543
of bastard child, liability of, &c., 405
when to inherit cbililreu's property, 474
if competent, shall have custody and tuition
FATHER— continued.
of his minor children under guardian-
ship of otiiers, 543
rights of, how aflected by adoption of chil-
dren, 547, 548
FEATHERS.
not to be sold by pedlors, &c., 282
FEBRUARY, T"WENTY-SECOND.
legislature not to sit for ordinary buyine.ss, and
public offices to bo dosed, 4U
courts not to be opened, except, &e., . . . . 617, filS
bills of exchange, &c., maturing on, when pay-
able, 293
FEES.
of officers and jurors in jury trials before justices
oftheiK'ace, &c., 600,607
of magistrates and j:iilers in cases of poor
debtors arrested or committed on
mesne process and execution, .... 641
for approving bail bonds, 642
of court and messenger in cases of insolvent
debtors, 600
Iiow paid, accounted for, .tc., GOO
in cases,before police courts, bow made up,taxed,
certified, paid, and accounted for, 572-574
for copies to be indorsed thereon, 572
of sherifi's, witnesses, &c., taxed and allowed be-
fore justicesof peace and remaining in
their hands three years, to be account-
ed for, and paid to county treasurer, . 610
not to be received by judges and registers of
probate and insolvency, 604
extorting illegal, how punished, 814
specific account of fees received to be given
when required, 788
penalty for refusal or neglect so to do, . . . 788
of officer serving process to be indorsed on
writ, &e., 788
otlh'rwise shall not be allowed, 78S
Of appraisers, 7S0, 787
Clerks of the courts, 563,012,784,785
how to be accounted for, 674
for reeording attachments, 626, 627
Commissioners, 786, 787
Constables, 786
when not entitled to witness fees in criminal
cases, 78G
Coroners, 786
when not entitled to witness fees in crim-
inal cases, 780
Jailers in the county of SufibUc, 786
Jurors, 786
Justices of the peace, 7&3, 784, 78?
when two or more are i-equircd to attend,
what each entitled to, 784
district -attorney may disallow in criminal
cases, when, &c., 788
and police courts for discharging poor con-
victs, 879
appelhrnt in criminal cases not required to
advance, 843
when not allowed for issuing warrants in
criminal cases, 570, 608
Ministers, for marriages, 787
Notaries public, 78:'
Registers of deeds, 787
988
INDEX.
FEES — continued.
Secretary of tlic commonwealth, 787
Sheriffs and their deputies, 785
when not entitled to fees as witness in crim-
inal cases, 7S0
TowTi clerks, 7S7
for recording^ mortgages of personal prop-
ci-ty, 707
Witnesses, 780
to certify in writing amount of travel and
attendance, 7S5
in contested elections, conimitteo nmst cer-
tify there was reasonable cause for at-
tendance, 787
in criminal cases, when to be apportioned, , 788
when not to be allowed, 7SS
provisions as to witnesses' ccrtiticates, . . 788
officers not to be interested therein, , . . 788
Of recording officers, in cases not expressly
provided for, 788
word "page " defined, 78-s
printed or written list of fees to be posted
up in jiublic office, 788
FELOnSTY.
no person to be declared goiilty of, by legis-
lature, IG
assaults with intent to commit, how punished, 793, 70i
what crhne shall be deemed, 825
indictments for, not to be invalid by omission
of certain words, 825
accessories before the fact to. punishable e.s
principals, 825, 820
when, how, and where to be tried, 820
accessories after the fact to, who shall be
deemed, and how punislied, 820
when, where, and how to be tried, 820
attempts to commit, how punishable, ...'.. 820
no person indicted for, shall be tried unless per-
sonally present, S41
when persons indicted for, are convicted of part
of charge and acquitted of residue,
how to be sentenced , 812
FEMALE.
discharged from custody of guardian upon mar-
riage, 540
marriage of, extinguishes her authority as ex-
ecutrix, administratrix, and gnar-
chan, 504,540
immarried, or minor, whose father is deceased,
property of, excniiited from taxation, 74
not to be arrested on civil process except for tort, 034
FEMALE COITVICT.
not to be sent to state prison, 845, 840
sentence of, mth nursing infant, 845
may be transferred to workhouse, if in state of
pregnancy, 859
county to pay two dollars a week for her sup-
port, 859
if mother of a child under eighteen months of
age, when may have custody of it, . . SGI
not to be kept in same room with male prison-
ers, 802
FEME COVERT. (See Married iromen.)
FENCE.
across Iiighways &c., how may be removed, &c., 251
when not to be removed, 240
when adjudged nuisance, and taken do^vn,
costs, how paid, 251
when to be deemed boundaries of Iiighways, . . 251
'Ahat to be legal and sufficient, IS'i
Partition, to be maintained equally, by acljoia-
ing occupants of land, 182
'F'B'NC'B^ — continued.
proceedings, when party neglects to repair,
4S:c., 182, 183
when repaired by one not the owner, ex-
pense, how recovered 183
controversies concerning, how determined, 183
assignment of shares in, made by fence view-
ers, to be recorded, 183
to be binding upon occupants and their
successors, 183
agreement respecting, when so recorded, to
bind owners and heir forever, unless,
&c., 184
if party neglects to maintain part assigned
to him, aggrieved party may maintain
and recover double damages, 183
compensation may be allowed for building,
ifcc, more than just share of, ISJ
to be maintmned throughout the year, un-
less, &c., ig3
when lands are bounded by water, 1S3
when lands have been occupied in com-
mon, 1S3, 184
o\vner exempted from maintaining, by lay-
ing lands in common, 1S4
not to be removed on laying lands in com-
mon if, &c., 184
how to be paid for, when unenclosed land
is fenced, \si
Water fences, how to be made, &c., 184
of general tiehls, 382
pcnaltv for wilfully injuring, &c., . . . 805, 800
FENCE VIEWERS.
two or more to be chosen at town meeting, , . 100
to be sworn, loi
to survey and direct repair, itc, of partition
fences, 1S2, 183
to give notice to delinquents if fences are de-
fieient, i82, 183
may assign shares in partition fences, and direct
time for making repairs, 1S3
assignment to be recorded in town clerk's
office, 1S3
may order compensation for repairing, itc., more
than just share of fence, 183
may determine where fences shall be placed
when lands are bounded by water, . . 1S3
may divide or assign iencos where land has
been unenclosed, &c., 183, 184
may determine what one occupant shall pay
another for fence in certain cases, . . 184
when to be taken from different towns to decide
concerning fences, i^
penalty on, for neglect of duty, 184
fees of, and how recovered, 1S4
FERRY.
not to bo kept, and pay taken, without license
from county commissioners, 252
license for, may be revoked by commissioners, . 252
tolls at, to be established by commissioners, . . 252
certain ferries exempted from these conditions, 252
penalty for keeping, without authority, .... 253
may be established by commissioners w^here
they judge necessary, 253
when towns to maintain sucli ferry, 253
. when two towns to maintain, *. . . 253
penaltv on toums for neglect in such cases, . . 253
FERRYMEN.
on a post road, exempted from military duty, , 92
to be licensed by county commissioners, . , , , 252
to give bond, 252
to keep safe boats, &c., 252
INDEX.
989
FERRYMEN" — con(inH-«f.
to <five ready attendance on passengers on all
occasions, 253
penalty on, for want of such boats ami attend-
ance, 253
liability on bond for injuries caused by ncgli-
f,^euce, 253
action on bond, Iiow brouj^ht, 253
when exriiipt from sorvinjj as jurors, CSO
FICTITIOUS INTAMES.
may be iusertud in writs uLj-ainst defendants un-
known, 022
FIDDLERS, COMMON.
huw imuLshcd, 820,821
FIDUCIARY DEBTS.
not b;irri<l by discharge in insolvency, 592
FIELD DRIVERS.
to bo chosen at juinual town meeting^, IfiO
to be sworn, 101
to take up, &c., and impound cattle, sheep, &c.,
g^oiug- at larfj'e contrary to law, .... IHo
may retiike, witliin seven days, beasts that es-
cape or are rescued, ISO
entitled to recover fees by action, if cattle ^o at
larj^e on Lord's day, ISo
fres of, for distraining' beasts, 1&5
fighthstg.
birds or animals, penalty for exhibition of, . . 404
pen;ilty for beiup; present at such exhibition, . . 4(>4
PINAL JUDGMENT.
wiiat iuteudcd, wlu'n attachment, &c., is aflectcd
tht-reby, 555, 5t>J, 507, 025
FINANCE.
public oflieers and boards to make and submit es-
timates to speaker of house of expen-
ditures required in their departments, 139
officers disbursing money to make annual report
to auditor, 139
money to be paid from treasury only upon war-
rant of governor, under appropriation
of legislature, except, &c., .... 24,139
principal and interest of public di-bt to be paid
when due, 139
no waiTant to be draT\Ti for payment of any ac-
count unless certilied by auditor,
except, &c., 139
balances of appropriations may be paid in suc-
ceeding year, but not afterwards, . . 139
payments to be withheld from persons having
unadjusted accounts with state, ... 139
to be made from ordinary revenue, unless
otherwise provided, 139
cash on li;md at begiuning of year to be carried
to account of ordinai*y revenue of that
year, 139
notes for mouey borrowed in anticii)ation of
revenue, how signed, countersigned,
&c., 139, 140
interest on tempor;iry loans to be paid semi-
annually, 140
accounts of expenditures, &c., incurred by order
of either branch of legislature, to be
approved by presiding officer, and
audited by auditor, &c., HO
such orders not to exceed one hundred dollars,
without a specific appropriation pre-
viously made, 140
"incidental expenses" in appropriation bills, to
include postage, printing, and station-
ery, 140
less appropriation to supersede former larger
appropriation for same object, .... 140
83*
FIN ANC^ — continued,
public officers, duties of, in making purchases
and incurring liabilities for state, . . 140
state not liable for acts of, beyond amount
appropriated, 141
may coiuinuo expoiuUturvis during January,
until will of legislature is expressed, . 140
to incur no new expense, unless sufficient
appropriation has been made therefor, 140
permanent improvements not to be made upon
public buildings without appropri-
ation, &c., 140
bills against state exceeding fifty dollars, except
for salaries, &c., to be sworn to, . . . 140
original bills of articles purchased, &c., for
state, to be delivered to auditor, . 140, 141
committee of legislature not to incur liability
after close of session, without appro-
priation, 141
appropriations for witness ices may be applied
to taking depositions, 141
compensation of committees of legislature,
commissioners, &c.,to be fixed by governor
and council, 141
travelling expenses of commissioners, &c., not
to exceed three and a half cents a mile, 141
bills of charges to contain items, 141
secretary, treasurer, auditor, &c.,lo report to
legislature, jumually, expenses of of-
fice, &e., 141
appropriations for state prison, how drawn,
i:c., S70
salaries to be paid quarterly, and to be in full
for all services, 140
to be paid only for time of actual service, . 140
wiien diminished, to be paid at that rate, not-
withstanding larger appropriations, . 140
but one to be received by same person at
same time, 140
of justices of supremo judicial court and
governor to be paid without appropri-
ation therefor, 139
FINES.
excessive, not to bo imposed, 9, 10
half of, for keei)ing, &c., obscene books, to go
to prosecutor, 819
how received and accounted for in cases before
police courts, 572
in cases before justices of the peace, .... 010
on common carriers of passengers for loss of life
of passenger by gross negligence, how
recovered and to whom paid, .... 794
to be paid into state treasury, where no other
provision is made, 851
to be prosecuted and recovered by indictment, . 851
when not exceeding one hundred dollars, by
complaint before a police court, ... 851
when not over fifty dollars, by complaint be-
fore a justice of the peace, 851
may be recovered in an action of tort, . . . 851
justices of the i>eace to make return to secretary
of state of fines recovered before them, 85 1
fines and forfeitures to be certified by clerk, and
paid to sherilT, 852
shertif to pay them to couuty treawuKT
within one month, 852
liability of sheriff neglecting to pay, 852
payment to j;uler, &c., to bo deemed legal, . . . 852
sheriff suffering an escape of person under sen-
tence, to pay fines as if he had received
them, 853
discharge of poor convicts Tor non-payment of,
S78, 879
990
INDEX.
FIKEARMS.
provisions concerning- proof of, 2G0
{Sf'r Armii.)
FIRE DEPARTMEWTS.
may be t'stiiblishcd in any town by select-
men 178
liow orf^anized, 178
members of, when exempt from military duty, 93
when exempt from werviug as jurors, . . , CSO
eugfiucers, how appointed and vacancies filled, , 178
tenure of office, 17S
organization of, 17!)
to have powers of tirewards, 179
to appoint eng-iuemeu, 179
number of such engincmeu to each engine, , 179
eng'inemen to Iiavesame privileges, &c., as
when appointed by selectmen, .... 179
to approve of organization, *S:c., of cugiuo-
men, 170
to have care of engines, Ac., 179
may make alterations and rejiairs on en-
gines, 170
may make rules, &c., as to carrying fire, &c.,
in the streets, 170
general powers of, as to preventing fires, . 170
future acts establishing, not to take effect until
accepted by town, 179
Eire districts may be established in villages,
*S;e., containing one thousand inhab-
itants, if town refuse to establish, . . 180
proceedings for organizing district, and estab-
lishing fire department, ....... 180
meetings of fire district, how called and con-
ducted, 180
engineer and assistants to be chosen by district,
and sworn, 180
engineers may make rules, &c., as to carrying
fire, &e., in the streets, ISO
may appoint and remove enginemcn, &c., ISO, 181
to have powers of firewards in district, . . 181
liability of district for acts done by, .... 181
enginemcn to have same privileges as in
towns, 181
compensation of, 181
districts may raise money for purchase of en-
gines, &c., 181
to choose prudential committee, to have
charge of money, tfec, 181
assessment and collection of money voted
by, 181
by-laws, &c., adopted by, to be approved by
superior court, 181
penalties, how recovered, 181
no inhabitant disqualified to act as magis-
trate in suit for penalty, 181
may annex or exclude particular persons or
estates, 181
FIRE CLUBS.
when not to be established without permission
of selectmen, A'c, 181,182
penalty for joining club existing without per-
mission, 182
FIRE-PROOF OFFICES.
to be provided by ronntii's, 144,198
county rei'ords, \-c., to be kept therein, .... 198
FIRE-PROOF SAFES.
to be provided by cities and to«T.o, 108
records to be kept therein, 108
FIRES.
duties of firewards, &c., at, 176
towns may use water of aqueduct corporations
for extinguishment of, 375, 376
FlRES — cojitinited.
embezzling or concealing property at, deemed
larceny, 177
stealing property removed in consequence of,
how punished, 707
wilfully obstructing the extinguishment of,
how punislied, 79O, 797
giving false alarms of, how punished, 810
PIRE'WARDS.
may bi' chosen by towns at annual meeting, , , 170
in cities by city councils, 170
to have immediate notice of election, 17G
penalty for not giving notice of acceptance or
refusal witliin three days, 170
to repair to lire and carry badge of office, . . . 170
may order buildings to be pulled down at Cre, . 170
if no firewards present, selectmen, &e., may
make same order, 170
owners when indemnified in such cases, , . 170
may require assistance at fires, 170
may suppress tumults and disorders, 170
may direct operations of enginemcn and others, 176
penaltv for refusing to obey orders of, 177
FIRE^VORKS.
penalty for selling, &c., without license, .... 400
PISH.
Inspector-generaJ of, bow appointed and
term of office, 258
to be sworn, 258
to give bond, 261
to make return of quantity, &c., of fish in-
spected by himself and deputies, . 203,264
may appoint dei>uties, who shall give bond
and be sworn, 25S, 261
to be responsible for his deputies, 261
together with deputies to inspect all fish,
&e., 261
penalty on, for neglect of duty, 203
may seize, &c., fish sold without inspec-
tion, 204
penalty on, for branding, &c., without in-
spection, 204
proportion of deputies fees, to be paid to, . 203
Pickled, how prepared, jiacked, and branded, . 201
sorts and denominations of, and how
branded, 201,202
ditfereut qualities of mackerel, salmon, and
shad 201,263
casks to be filled with same kind of, ... . 202
penalty for intermixing, &e., contents of in-
spected casks, 262
casks of, how branded with inspector's
name, Ac, 262
of foreign catch, subject to duty, to be
branded " foreign," 202
if inspected where packed, need not be re-
inspected, 262
small fish, how packed, branded, &c., . . . 262
casks used for packing, quality and size of, 202, 263
to be strictly examiueiVy inspectors, . . . 263
foes for insi)ectjng, 203
Alewives, &C., how prepared and packed, . . 263
how sorted and numbiTcd, 203
boxes for, quality and capacity of, 203
how branded, 203
fees for inspecting, packing, and branding, . 203
not to be exported unless inspected and
branded, under penalty, 264
may be exported, if inspected in another
state, 204
inferior quality not to be substituted for,
after inspection, under penalty, ... 204
INDEX.
991
FISH — continued.
Alewives, when sold, &c., without inspec-
tion, shall be forfeited, 2G4
Clam bait, weight of barrel of. 264
expense of weighing, by whom paid, . . . 264
penalty on master of vessel for lading unin-
spected fish, 264
for selling tainted fihh for food, 204
weight of quintal, 264
reguhitions con 'eniing the taldng of certain
kinds of, 431,432
penalty for destroying with Indiiin cockle, &c., 4-31
unlawfully taking pickerel and trout, ... 431
prosi'cntions therefor limited, 431
FISHERMEN.
boats, fishing tackle, and nets of, to value of one
hundred dollars, exempt from levy on
execution and from attachment, . 024, 688
FISHING TACKLE.
wliut, exempt from attachment and levy on ex-
ecution, 624,08,'^
FIXTURES.
what, cxL-mpt from attachment and levy on ex-
ecution, 624, 688
FLAGMEN".
win II to he stationed at railroad crossings, . . . 301
FLASHBOARDS.
wiliuHv iiijuriii;.'', how punished, SOI
FLOATING LOGS, MASTS, &c.
jiro\ isions respecting, 424
FLOWING LANDS.
complaints for, to be brought in superior court, 502
damages, how recovered for, 755-759
iSee Mills.)
FLUMES.
wiitnllv injuring, how punished, 804
FOLLOWING SECTION.
how roustrued, when used in these statutes, . . 51
FOOD.
fraudulently adulterating eubBtonccs intended
for, ,
articU^s adulterated to be forfeited and de^
Ktroyed,
FORCIBLE ENTRY AND DETAINEB.
entry into liinds to he made only where allowed
by law, and to be peaceable,
when forcibly made, or forcible possession
of estate is held unlawfully by force,
owner may have process for resti-
tution,
BO when a person holds after the termina-
tion of a lease, 707
80 when a lease is terminated by notice to
quit for non-payment of rent, unless
tenant tenders the rent due, Are., four
days before the return day of the writ, 707
so when lessee ortenant uses the premises
for certain nuisances and illegal pur-
poses, 454
restitution not to be made if defendant, or
those under whom he claims, has been
in possession three years, unless his
estate is ended, 707
person entitled to possession in above cases
may sue out a writ from police court
or justice of the peace, 707
writ in such case, form of, and what shall
be returned therein, 707
BCrvice of, how made, 707
may be made by constable, 1(H
if it appears by default or on trial that
plaintiff is entitled to possession,
822
822
707
7o;
FORCIBLE ENTRY, &c. — continued.
judgment to be rendered therefor and
for debt and costs, 707
if plaintiff becomes nonsuit, or fails to
prove his right, defendant to have
judgment and exceutiou for costs, . , 707
if plaintiff claims rent, and defendant ap-
peals, he shall recognize to enter ac-
tion, to pay all rent tlien due, &c., . . 708
on final judgment lor jjlaiutiif, he may re-
cover by scire facias, or contract, all
sums for rents, damages, and costs, 708
if title to real estate is in questiou, how
case may be removed to superior
court, 006
if defendimt remove case to superior court
on frivolous suggestion of title, liable
for double rent in certain cases, . . , 708
judgment in, no bar to future action to re-
cover premises, or damages for tres-
jiass, but amount recovered for r<'ut
may be set off, 708
FORECLOSURE OF MORTGAGES.
of real est;it(', ])ri>\isi(>iis euueL-rning, . . . . 712,713
of personal property, provisions concerning, , 707
FOREIGN.
the wurd, applied to insurance companies not
incori)orated by legislature of Mas-
sachusetts, 332
Ships and vessels, not affected by state laws
re.specting liens, 769
Corporations, how liable to action, &c., . , . 38G
FOREIGN LAWS.
cxisteuce, tenor, and effect of, m.iy be proved by
parol evidence, 079
if written, courts may require copy of, as evi-
<lence, 079
FOREMEN.
of engiiu'Uien, how chosen, &c., 177
of trial jurors, os>
of grand jurors, 8:17,838
FORFEITED GOODS.
may he t-.i/i-d by persons entitled to recover
them, when no special provision is
made, 77:5
person seizing, to apply immediately (unless a
claimant aj)plies) to a justice for ap-
pointment of apjjraisers, 774
appraisers to be appointed by such justice ; to
be sworn, and return an inventory
and appraisement, 774
if appraisers, appointed on application of per-
son seizing, certify that the goods are
perishable, &c., any justice may or-
der sale thereof, 77-1
such appraisement to be conclusive as to juris-
diction of the court, before which suit
is to be brought, unless different ap-
prai.sement is made by claimant, . . . 774
if claimant applies, before libel is filed, for ap-
praisers, their appraisal to be conclu-
sive, &c., 774
person seizing, to file a libel within fourteen
days, stating the cause of seizure,
and praying for a decree of forfeit-
ure, 772
libel of, mny be general ; form of, 77:;
to be filed in clerk's oflfice of superior court,
when value of goods is more than
twenty dollars, 770
before a justice of police court, if goods
are of less value, 770
992
INDEX.
FOKFEITED GOODS — coitthmed,
how notice of libel shall be giveu when filed in
cicrk*8 office, 77-, 773
when filed before a justice of pohce court, . 773
if no cliumaut appears, court shall hear and de-
termine the cause, &c., 773
if claimant appears, ho may plead any proper
matter of defence, 773
proceeding's to be according^ to course of the
civil law, except tha.t questions of fact
shall be tried by a jury, 773
depositions may be used, as in trials of actions
at common law, 773
if libellant maintain his suit, court shall order
sale of the goods and legal disposi-
tion of the proceeds, 773
discontinue or fail to maintain his suit,
claimant to have restitution, 773
costs, charges of keeping, &e., processes, &c.,
to be within the power and control
of the court, 773
court may order sale of the goods, for sufficient
cause, during pendency of suit, . . . 774
appeal from superior court, or from a justice,
»tc., may be taken by either party, . . 773
claimant shall have damages and costs, if jury
find that the seizure was groundless,
&c., 773
entitled to a delivery of the gfoods, on giving-
bond to restore, pay appraised value,
if, &c., and perform final decree, . 773, 774
value of tlie goods in such case to be deter-
mined by tliree sworn appraisers ;
how appraisers appointed, 774
FORFEITURE.
of estates, wlion limitation to rights of entry
or action commence to run, 775
FORFEITURES.
actions for, to be brought in counties where
offences are committed, 021
on trial of indictments, or penal suits for, ju-
rors not disqualified on account of
pa>ing taxes in county, town, &C., . C83
on penal statutes, suit for, to be brought in
one year, if forfeiture is given to pri-
vate persons, 77'J
in two years, if given in whole or in part
to the commonwealth, 771)
for burning coal pits on certain woodlands in
l)ortions of Bristol and Plymouth
counties, how recovered, S07
for burning brush wood so as to set fire to such
woodland, SOT
incurred under acts hereby repealed, not af-
fected by the repeal except where mit-
igated by new provisions, SSO
accruing to any person, may be paid to him, if
penalty of recognizance is forfeited or
paid, 843
by constable, or juror, in regard to coroners'
inquests, 848
by jailers, &c., for failing to keep prison book, . 86G
overseers, &c., of jails, &c., for failing to make
official returns, 86S
(See Fines.)
FORGERY.
of records, wills, deeds, contracts, receipts, &c.,
how punished, 807
for uttering such forged records, &c., as true, hO?
of notes, &c., issued by the treasurer of the
state, 808
of bank bills, or notes, 808
FOHGERT — ro;iAi'»?/cf?.
having ten or more forged notes, &c., in pos-
session, with intent to pass, 803
uttering forged notes as true, 808
common uttercr of forged bills, who deemed,
and how punished, 808
effect of second conviction, and three convic-
tions at same term, 808
bringing into st-ute, or having in possession
forged bill, &c., with intent to pass, . 808
engraving plates, &c., or making paper, &c.,
for forging bills, &c., 808
having such plates, &c., and paper, Ac, in
possession, 808, 809
in prosecutions for forgery, &c., of bank bills,
when testimony of president and
cashier may be dispensed witli, . . , 809
how bills may be shown to be forged, . . . 809
in prosecutions for forging, &c., United States
securities, how securities may be
shown to be forged, 809
affixing fictitious signatures of officers of cor-
porations, &c., deemed forgery, though
such persons never existed, 809
intent to defraud, how may be alleged and
proved, S09
what sball not be a variance, 809
fraudulently connecting parts of bank notes, . 8i0
Sheriff, to seize forged bank bills and plates,
tools, (fcc, and the court shall order them
to be destroyed, 811
Recompense, to prosecutors of forgers and
forgery, 811
FORGnSTG.
private labels, stamps, and trade marks, how
punislied, S02
selling goods knowingly with such marks,
and not disclosing to purchaser, . . . 802
FORM,
defect of, not to abate writs and processes in
courts of justice, 057
of declarations, answers, &c., in civil cases, 003-669
of complaints, &c., under laws relating to sale,
&e., of intoxicating liquor, . . . 449-453
FORMEDON.
writs of, abolished, sa\ing certain rights, . . . 696
FORMER ACQUITTAL.
• upon facts and merits to bar subsequent prose-
cution, 700
but not when acquittal was for variance, . . 790
or for exception to form, &c., of iutUctmont, 790
out of the state in case of a duel, effect of, . . . 792
FORNICATION.
how punii^l'.ed, 818
FORTUNE-TELLING.
fraudulently obtaining property by, how pun-
ished, 802
jurisfUction given to justices of the peace and po-
lice courts, 570, 009
FOURTH OF JULY.
legislature not to sit for ordinary business, and
public offices to be closed, 49
courts not to be opened, except, &c., . . . . 017,618
bills of excliaugc maturing on, when payable, . 2(3
FRANCHISE OP CORPORATION.
unwarranted exercise of, by corporatiijus and
individuals, how restraiued, 744
attachment of, how made, &?., 387
seizure and sale of, on execution, 3S7, 388
FRAUD.
gross, at common law, how punished, 802
by cheating at cards, how punished, 802
INBES.
993
IP'RAXTD — coiitintu'd.
suits ill cases of, may be brought iu supreme
judicial court in equity, 559
of ofliwrs, in sale of gfoocis ou execution, or in
return thereof, remedy for, 0S9
when real estate held by, is attached, officer to
make epCGiiil return, &c., G20
persons suspected of, respecting estate of insol-
vent debtors, wards, and deceased per-
sons, how examined, , . 489,540,547,597
FRAUDS AND PEBJUIOBS.
provisions for pi-cveutiou oi", 5ii7, 528
certain contracts to be iu writing-, ....... 527
consideration need not be iu writing, 527
new promise by debtor discharged in insol-
vency to be iu writing, 527
contracts for sale or transfer of certain stocks
void, unless vendor is owner, &c., . . 52S
FRAUDULENT ATTACHMENTS.
huu' eniitcstt'd and diss))Ive(|, G31
FRAUDULENT ASSIGNMENTS.
how roiitest'-d in trustri- pnn-ess, 722
FRAUDULENT CONVEYANCES.
of personal property render holder liable to
trustee process, 721
by debtor, when sufficient cause for proceed-
ing against him in insolvency, . . 59(1,599
and preferences by insolvent debtors, effect of,
respecting discharges, and how may
be avoided by assignees, 593, 504
of real estate, how attached and taken on exe-
cution, 510,517,026
how may be treated by executor, &c., of
grantors, 511
FRAUDULENT DEBTORS.
hi>\v iMinish.'d 038,039
FRAUDULENT CONCEALMENT.
of cause of action by person liable tliereto,
saves operation of statute of limita-
tions, 778
of mortgaged personal property, bow punished, 803
of wills, procco<lings respneting, 477,798
FRAUDULENT ISSUES, &c.
of sTnck, how punished, 801,802
FREEHOLD.
when leases are considered as, ' . . . 471
est;ites of, Iiow recovered by writ of entry, . . 092
persons in possession of, &c., may have process
to comjiel persons having adverse
claims to bring action to try title, or
be estopped, &c., 090
FREIGHTERS.
of niercliiuidise, remedy of, agaiust ship own-
ers, 289
FRIENDS. {See Quakers.)
FRUIT.
to be sold by dry measure, under penalty, . . . 204
punishment for unlawfully taking, .tc, .... 800
jurisdiction of offence given to justices of the
peace, 009
FUEL.
what exempt from levy ou execution and attach-
ment. 024,088
FUGITIVES PROM JUSTICE,
I^rovisions respecting, 7,8
governor may, ou demand, deliver to executive
of any other state, &c., persons charged
therein with treason, felony, or other
crime, 853
may appoint agents to demand them from the
executive of other states, 853
if demand is complied with, expense to be
audited and paid, 854
demand or application to be accompanied with
what, 853,854
proceedings ou such demands from other states, 854
persons arrested uot to be delivered to agent
of other state without opportunity to
apply for habeas corpus, 854
penalty for surrendering, without such op-
portunity, ... S54
notice of such application must be given to
prosecuting officer, 854
persons liable to be demanded by other states
may be arrested, 854
and required to recognize, or be commit-
ted, 854
if charged with capital crime, to be detained
iujail, 854,855
how proceeded with, or discharged, .... 855
complainant liable for expense of all actual
costs and charges, and support of pris-
oner, 855
if charge for support is not paid, jailer may
discharge, S55
FUGITIVES FROM SERVICE.
how to be surrendered, 7,8
persons arrested as, may have habeas corpus, . 736
proceedings in such cases, 736, 737
falsely accusing person of crime, that he may be
held to answer as, how punished, . . 793
if done by public officer, to disqualify for of-
fice, 793, 094
FUNERALS.
wiliul iHsturbaucc of, bow punished, 820
FURNACES.
for melting iron, or making glass, erection and
use of, may be licensed and regulated
in certain places by selectmen, &c., . 458
owner aggrieved may have jury, as in case of
highways, 459
court may restrain use of, while appeal is pend-
ing, 459
verdictof jury, and costs in such cases, .... 459
erected and used contrary to law to be deemed
common nuisances, 459
and may be removed by selectmen, &c., .... 459.
FURNITURE,
what exempt from taxation, 74
what exempt from attachment and execution, 624» 688
G.
GAMING.
persons losing money by, may recover it back, 435
if such person does not prosecute within three
months, A'c, any other person may
recover treble amount lost, 435
125
GATVrrN'G- — continued.
owner, ic, of gaming house liable for money
lost, 435
penalty for winning by, five dollars or more at
onetime, 435,436
994
INDEX.
GAMING — ccmfimicd.
notes, couvcyances, &c., for money lost by,
void, except as to bona fide bolders, 43G
when such conveyances adjudg-cd void, to whose
benefit lands to imiro, 430
penalty on innholdcrs,&c., foi' keeping, &c., im-
plements for, 435
for permitting use of implements for, ou
the Lord's day, 435
penalty for gaming in such places, and in places
licensed for bowling alleys, 43G
penalty for keeping house for, 430
eomnion gaming houses may be entered, and
parties arrested, &c., 430, 437
)cnalty for being found playing therein, . . . 437
for gaming at musters, cattle shows, Arc, . 437
)00ths used for, within one mile of muster fields,
itc, how removed, 454
iouses resorted to for, to be deemed common
nuisances 454
penalty for keeping such, 454
use of, by tenant, for such purpose, to avoid
lease, 454
penalty on landlord for lettiug for sucli pur-
pose, 454
raudulcntly obtaining property by, how pun-
ished, 802
y way of lottery, how punished, 8'J3
apparatus and implements, search warrant
may issue for, 830
:"WAY ROCK.
lov on, ceded to United States, 44
DEJSrS.
iICul and malicious injury to, how punished, . 800
how, when committed ou Lord's day, . , . t(.it>
GASLIGHT COMPANY.
ten or more persons may become a corporation
for manufacturing, Ac, gas, 343
not to be organized in town where g-as company
exists, except by inhabitants of place, 343
nor unless existing corporation has realized an
annual dividend of sereo per cent, five
years, 343
Buch corporations may dig up streets, &c., with
consent of selectmen, &c., 343
to put such streets in repair, and upon failure,
to be deemed guilty of a nuisauce, , . 343
acts of, to be under regulation of selectmen, &c., 343
other companies may hohl stock in, 343
these provisions may be amended or repealed by
legislature, 343
GATES.
at railroad crossings, when to be erected, , . . . 361
may be altered by county commissioners, . 303
penalty on agents stationed to open and close,
for neglect of duty, 301
when location of, may be altered, 302
on town or private ways, how removed, .... 251
punishment for throwing down, opening, &c.,
SW, 805
of mills, wilful injury to, how punished, .... 804
GAY HEAD.
land fur lighthouse at, ceded to United States, . 44
Indians, uppropnatious,«tc., for schools for, . 213
GENERAXi COURT.
legislative department to be so styled, 17
may constitute courts, 18
may make laws not repugnant to the constitu-
tion, 18
may provide for the appointmentof officers, and
prescribe their duties, 18
may impose taxes, IS
GENERAL COUB,T — cn}ifhmcrL
not to adjourn exceeding two days, . . . , . 20, 21
may be adjourned, or prorogued, by governor
and council, 23
wlien and liow convened and dissolved, ... 23, 33
petitions to, affecting rights of individuals, pri-
vate corporations, towns, &c-, how
notice to be given, &c., 47, 48
compensation of members and officers, 48
members of committees of, may administer
oaths to witnesses, 49
journals and filesof,tobe in possession of clerks, 49
to hold no sessions for transaction of ordinary
business on certain holidays, .... 49
members of, not eligible to office created dur-
ing their term of service, except by
vote of the people, 49
apportionment of senators and representa-
tives, 62-64
to fill vacancies by joint ballot, if majority of
presidential electors not chosen, ... 69
by committee, to examine, &c., condition of ar-
senal, &c., in Cambridge annually, . . 104
sergeant -at-arms of, how and when chosen, . . 133
powers and duties of, 133, 134
doorkeepers of, how, when, and by whom ap-
pointed, 133
committee of accounts of, to examine books,
&c., of auditor, 136
no committee of, to incur liability, after close of
session, without an appropriation, . . 141
compensation of committee of, to be fixed by
governor and council, 141
GENERAL FIELDS.
are distinct lots enclosed in one, 381
meetings of proprietors of, how called and
warned, 381
how votes are to be given, 381
absent proprietors may vote by proxy, &c., . . 381
clerk, assessors, collector, &c., may be chosen, . 381
tenure of office, 381
clerk to be sworn, 381
to issue warrant for collecting assessment, . 382
assessors of, to be sworn, and to assess money
raised, 381,382
field drivers of, to have powers of town field
drivers, ; . 381
land enclosed for benefit of proprietors of, not
to be reckoned in voting, 381
how fences of, to be apportioned, &c., :J82
assigned and repaired, 382
assignment of fences to be recorded, and where, 382
expense of apportioning, and making fence, how
borne, 382
proceedings when part of fence assigned is defi-
cient, and proprietor liegleeta to re-
pair, &c., 382
proprietor, &c., neglecting to repair, liable to
double costs, &c., 382
fence suddenly blown down, itc, to be repaired
within twenty-four hours, &c., under
penalty of double costs, 382,383
Proprietors, each of, may manage and cultivate
his land as he thinks best, 381
trespassers, if they violate rules, &c., . .3.S1, 382
entitled to remedy for trespasses by stran-
gers' cattle, 382
not liable to maintain fence, &c., if he do not
cultivate, . 382
may enclose his own land, &c., 383
to run lines if requested, and keep up
boundaries, 383
INDEX.
995
GENERAL FlSlIjl>S — continned,
penalty if he fails so to do aft<*r seven days'
notice, 383
may choose clerk, aescBsors, and field driv-
ers, 381
may adopt rules as to pasturing-, &c., . . . 3.S1
may raise money by assessment, for com-
mon charges, 38ti
when overrated, may apply to county com-
missioners, 38i2
when may be ordered by superior court to
enclose their lands, 383
such order not to be made, unless upon ap-
plication of greater part in interest, . 383
rights and proceedings of i^roprietors alter
such order, 383
how may discontinue their fields, 384
writs, Ac, against, how served, and how
long beloi-e return day, 623
Division of, how may be made, 383
GENERAL ISSUE. '
abolishcil, exn-pt in real and mixed actions and
actions belorejustiee of the peace, &c.,
and answer substituted, GjG
in real actions, defendant may give in evi-
dence what might formerly have been
pleaded in bar, GiiG
in writs of entry, actual entry need not be
proved, ; GU2
non-tenure, disclaimer, several tenancy, and
sole tenancy, may be given in evidence
under, 003
Before justices of the peace, may be
pli'iided orally, GOli
upon appeal, case may be tried on same
plea, unless court orders other plea
to be made, 00?
GENERAL STATUTES.
these statutes so designated, 880
when to go into operation, 880
repeal of acts, &c., by, not to revive former laws, 880
not to afl'ect acts done, SSO
nor penalties or forfeitures incurred, except
when mitigated therein, 880
nor suits commenced, except as 1o form of
proceedings, SSO, 881
tune of limitations, that has begun to run, to
continue, 881
tenure of existing offices preserved, except, &c., 881
to be construed as a continuation of existing
laws, S8I
GEORGE'S ISLAND.
codcil to ruited States, 44
GIRDLING TREES.
wautouly or wilfully, how punished, 805
damages for, how recovered, 709
GLASS.
punishment for wantonly breaking, in buildings, 805
erection of furnaces for making, regulated, , , 458
GLOSSARY.
of foreign and technical words used in these
statutes, D09
GLOUCESTER.
land ill, reded to United States, 44
Ten Pound Island, in harbor of, ceded to United
States, 44
Straitsmouth Island, in harbor of, ceded to Unit-
ed States, 45
land in, for custom-house, ceded to United States, 45
GOATS.
found going at large contrary to law, &c., to
be impounded, lS5-lsr
GOLD.
when tendered by banks, how to be weighed, . 310
(.See Coin.)
GOVERNMENT,
right of tlie people to institute and change, , . 15
GOVERNOR.
to approve bills and resolves, or return to legis-
lature with objections, 17
and five at least of council to examine, &c.,
returns of votes, and issue sum-
monses, 20, fiO
style and title of, )>i
to be chosen annually, 22, 34, 30, 02
qualifications of, 22,33
oath of, 29, 33
return of votes for, 22,59,60
may convene council and legislature, 23
to bo commander-in-chief, 23, 33
pardoning power vested in, with advice of coun-
cil, 24
to draw warrants for payment of money from
treasury, 24
not to draw warrant unless account certified by
aucUtor, 139
judicial officers and coroners to be api>oiuted by, 24
offieersof the militia to be commissioned by, . . 24
salary of, 25, 128
to be paid without specific appropriation
therefor, 139
to have no fees or porqiusites of office, 128
to be president of council, 25
exempt from serving as juror, 079
lieutenant-govi'ruor, when to act as, 25, 20
couni-il, when to exercise powers of, 26
to hold no other office, except, «fcc., 30, 33
address and messages of, to be published with
acts and resolves, 50
address of, when may be put in type, 53
when to issue precept for choice of representa-
tive in congress, C8
to transmit certificates to electors of president
and vice president, G9
to convene general court by proclamation, if
majority of presidential electors not
chosen, G9
to order new elections, in case of failure to elect
district-attorneys, clerks of courts,
&c., 71
may administer oaths of office to public offi-
cers, 131, 132
to appoint commissioners to qualify public offi-
cers, 131
may appoint commissioners in other states, &c.,
to take depositions, acknowledgment
of deeds, &c., 132
a messenger, 134
notes for money borrowed in anticipation of
revenue, to be approved by, . . . 139,140
may remove sheriffs from office, upon neglect to
give bond, or to pay amount of judg-
ment agiunst him, 150, 151
may offer and pay reward, not exceeding one
thousand dollars, for arrest of certain
offenders, 831
power and authority of, as regards fugitives
from justice, 853,854
as to granting pardons and commuting pun-
ishments, 855, 856, 875
GOVERNOR AND COUNCIL.
may punish for contempt, 22
when may require opinions of justices of su-
preme judicial court, 27
996
INDEX.
GOVERHSrOR AND COWN CTL — coniimied.
couveyiinces of public lands and flats subject to
approval of, 55, 139
fiuthority of, as to state prison, 870
GOVERNOR'S ISLAND.
ct'dud to UuJtL'd States, 44
GRACE.
on bills of exchang-e, notes, &c., 294
not allowed on notes on demand, 2tl4
GRAIN AND MEAL.
to be sold by the bushel, 205
WGig"lu of the bushel of the ditfcrent kinds of, . 265
measurers of, to be appohited, 205
may be authorized to appoint deputies, . . 205
duties and fees of, and their deputies, , . . 205
penalty on, for usiiij^ false weights, &c., . . 205
penalty for short weight, if measurer is not em-
ployed, 265
special provisions concerniug' measures for, . , 280
toll for gfindiug not to exceed one sixteenth
part thereof, 701
GRANDCHILDREN.
by consanguinity, how to maintain their poor
grandparents, 392
or affinity, not punishable as accessory
after the fact for felony committed by
graudpareuts, 820
GRAND JURORS. (See Jurors.)
qualiliL-ations, approval, drawing, and fees of, 780, 837
how often liable to serve, and penalty for neg-
lecting to attend, 080, 683
venires for twenty-three shall be issued by clerk
of superior court, except in SuiTolk,
before commencement of first term in
every year, S;J7
in Suffolk, by clerk of superior court for
criminal business, before commence-
ment of each January or July term, . 837
shall be issued seven (hiys at least, and not
more than thirty, before term com-
mences, 8^17
in Suffolk, shall serve for six months, and in
other counties througli the year, , . , 837
where there are criminal terms, shall attend
only at such terms, 837
shall be drawn, sunmioued, and returned like
jurors for trials, 837
when drawn at s;ime tiiuc with jurors for trials,
those who arc first drawn Bhall be
grandjurors 837
when sufficient number do not attend, court
may issue venires for others forth-
with, 837
form of oath, and mode of administering, . . , 837
those scrupulous of taking oath may make affir-
mation, 837
after being empanelled, and recei\'ing charge of
the court, shall elect their foreman by
ballot, 837
court to charge specially concerning certain
matters, 838
choice of foreman to be notified by them to
court, and record thereof to be made
by clerk, 837
foreman of, elected at first term, to continue
such during time of service, . . . 837,838
new foreman shall be elected if the first dies or
is absent, 838
foreman, or prosecuting officer, may swear wit-
nesses who come before the jury, , . 838
shall return a list of nil witnesses sworn be-
fore the jury during the term, .... 838
GRAND JXrilO'RS — en)7tinued.
may appoint one of their number as clerk, to
preserve minutes of their proceed-
ings, &c., 838
such minutes to be delivered to prosecuting
officer, if jury su direct, 838
if dismissed while court remains in session, may
be summoned, if necessary, to attend
again at same term, 838
shall cause the law for observance of Lord's day
to be carried iuto effect, 434
shall not disclose the finding of an indictment
for felony, if party be not in custody
nor imder recognizance, 838
not allowed to state, nor to testify in court, as
to any votes or opinions on questions
before them, 838
to be reminded, by charge of court, of their ob-
ligation to secrecy, 838
duty of, wlieu they find no bill because of pris-
oner's insanity, S38
in such case prisoner, when to be confined
in hospital, or to be discharged, . . . 838
none who find indictmeut to be on jury for trial
thereof, 841
GRANT.
of any interest in land to be in writing, or by
operation of law, 465
void, when made on gaming consideration, . 436
GRANTOR and GRANTEE.
huw construed, 51
grantor i«» make known to grantee if encum-
brances exist on estate conveyed, . . 407
to be lialile in damages for neglect, Ac, . . 407
and punished by fine or unprisonment, . . . 802
GRASS.
lamisliment for wilfully cutting, without au-
thority, 805
for wilfully entering lands, itc, with intent
to cut, &c., &0G
GRATUITIES.
to jurors, when cause for new trial, 083
GRAVEL.
penalty for wilfully digging up, without license, 805
GRAVESTONES.
l)uuishment for wilfully defacing, destroying,
A'c, 1U7, 821,822
GREAT BREWSTER ISLAND.
laud on, ceded to I'liiird .States, i5
GREAT "WOODS HOLE.
laud for sea-wall at, cciU-d to United States, . . 45
GROSS FRAUDS OR CHEATS.
at common law, how punished, 8C2
GUARDIANS.
to be appointed by probate court, 5J3, 574
first appointed, to liave whole charg-e of estate
of ward, 574
registers of probate and insolvency not to be, in
their county, 002
to give bond, and condition thereof, 545
bond to be approved by judge of the probate
court, 505
when exempted from giving boud for proceeds
of sale of real estate, 505
when new bond may be requirctl of, ... . 505, 540
sureties on bond may be discliari;-v''l, Ac, by
court, 505, 540
suits may be brought on bonds, 505,540
against sureties limited, 546
general powers and duties of, 545
may make pai-tition of real estate of ward, set off
dower, &c., 545
INDEX.
997
GUAEDIANS — contimied.
may appoint appraiser of real estate on execu-
tion in which ward is interested, . . . 5i5
duties of, when ward's property is to be taken
for his support, &c., when father is
living, 545, 540
may sell, transfer, &e., stocks of wards by lease
of court, 540
may transfer property of ward wlicn a guardian
is appointed in another state, , . . . 546
removal, resignation, and death of, ....... 540
marriage of female guardian extinguishes her
authority, 540
of female ward, effect of, 5K)
wards, how discharged from guardianship, . . 546
proceedings for recovering couecaled effects,
&c., 540, 547
compensation of, 547
property in hands of, not to be taxed for paro-
chial purposes, 202
may release damages to lands, &c., taken for
use of railroad, 352
of married man to join with wife in release of
dower and homestead, 525
of mill proprietor may act for ward, 700
may receive payment of mortgage due their
wards, and execute release, 715
tender on such mortgage may be made to, . . . 715
when tenants in common with wards may have
partition, 705
may prosecute and defend suits commenced by
or against ward before insanity, . . . 650
when liable to pay fine and costs of tiieir wards, 870
accounts of joint, may be allowed on oath of
one, 504
Of minors, by whom to be nominated, &c., . . 543
powers and duties of, 543
may be appointed by will of father, .... 543
such guardian to give bond, unless other-
wise ordered in will, 543
may join with widow in sale of estate of
homestead, 520
Of insane persons and spendthrifts, how
ap]iointed, Ac, 543, 544
such persons to bo notified, and may defend, 544
expenses of defence, how allowed and paid, 544
powers and duties of, 544
contracts by spendthrifts, in certain cases,
void, 544
Of persons out of the state, how appointed,
&c., 544
powers and duties, and bond, of, 544
Of married women, when may be appoint-
ed, 539, 540
not to Iiave custody of ward, except, »fcc., . 530
GVAB.lDlANS — confiniie/f.
nut to apply property to support of, with-
out leave of court, 530,540
of insane married woman to join with hus-
band in conveyance of estate of home-
stead, 525
Sales of land by, for payment of debts, . . . 012
for maintenance and investment, 513
by foreign guardians, 513
provisions common to all sales by execu-
tors, administrators, and guardians, . . 513-515
For a suit, may be ajipointed by courts for
minors and insane persons, . 533, 543, 050
in proceedings for partition of land, . . 700, 704
for persons not in being, 705
for absent heirs, 703
for jiroceedings for adoption of children, . 547
Of Indians, 133
GUXDE POSTS AND BOARDS.
to be erected and maintained by towns, , , , . 249
places of, to be reported annually by select-
men, 249
to be determined by towns, and recorded, , . . 249
foi*m of, and inscription on, 249
penalty for injuring or defacing, 249
for wilful, &c., removal of, S03
on selectmen for not reporting places for, , 249
on towns for not determining places for, . , 249
in suits, &c., for not ei-eeting, when towns es-
topped from denying necessity, &c.,
of, 249
GUNPOWDER, GUN-COTTON", AND
OTHER EXPLOSIVE SUBSTANCES,
regulations couccniing keeping of, A:e., may be
made by towns, Ac, 400
search warrants may be issued to ascertain con-
cerning such articles kept conti-ary to
law, 401
penalty for keeping same contrary to law, . . . 401
Camphene, towns, &c., may regulate storage
and sale of, 401
penalties may be imposed for broach of such
regulations, 4(ji
Gunpowder, to be put into strong and tight .
casks or c^anisters, 205
casks, size of, and how to be marked, . . . 205
canisters, material and size of, and how to
be marked, 055
penalty for falsely marking c-asks, or chan-
g nig contents, oq^
wilful, Ac, injury by, to houses, &c., how
punished, §04
GURNET HEAD.
in Plymouth county, lighthouse on, ceded to
United States, , , , ^
H.
HABEAS COEPtrS.
ivrit uot to be suspended, unless, &c., .... 5, 31
to be enjoyed in the most free and ample
miinner, 31
every person imprisoned or restrained entitled
to, for relief, as of right and of course,
except, &c., 734
^vho not entitled to, as of right, 734
application for, to be made in writing, by com-
S4
HABEAS CORPXyS — eontimied.
plaint, and signed by the party, or by
some one in Ids behalf, 734
what shall be set forth in sucli complaint, . 734
facts stated to be sworn to by party, or by a
credible witness, 734
to be Issued on such complaint, and made re-
turnable forthwith at place designated
in the writ 734, 735
998
INDEX.
HABEAS CO'RVUS— continued.
by whom the* writ mny be issued, 734
ehjill be made returnable to supreme or euperior
court, or a judge of said courts, . 734, 735
when issued by eourt in session, shall be signed
by clerk, otherwise by magistrate is-
siuug it, 723
may be served by any sherifT, or his deputy, of
any county, 735
if court to which it is returnable be afljourned,
shall be returned before either of the
judges thereof, 73fi
if returned belore a single judge, when court is
in session, he may adjourn tlio case
into the court, 730
form of, when comphiiut is against a shcrilf, or
other like officer, to be as heretofore
established, 734
in other cases, 735
how may designate the prisoner and the person
having custody of him, 735
when to have the sum payable for expense of
bringing party from place of impris-
onment certified thereon by coui*t,
&c., that grants it, 735
officer to whom, in such case, it is directed, not
bound to serve it, unless such sum be
paid or tendered, 735
within what time to be returned, 735
what shall be stated in the return of, Ac., by
person making it, 735
return, &c., to be signed by person making it,
and sworn to, unless he is a sworn
public officer acting officially, .... 735
person making return, &;c., to bring in the pris-
oner, if in his custody or power, uij-
Jcss prevented by his sickness, &c., . 735
if prisoner be sick, &c., that fact to be stated in
the return, 735, 730
court or judge, on proof of that fact, may
go to the place of confinement, . . . . 73G
or may make such order as the case re-
quires, 730
when i-eturned, court or judge shall, without
delay, examine the cause of restraint, 73G
examination may be adjourned from time to
time, 730
notice of, when to be given, before cUscharge,to
persons interested in process under
which prisoner is detained, 737
when to be given to the attorney-general,
&c., 73:
prisoner may deny any facts stated in the re-
turn, and allege any material facts, . 730
evidence to be heard, and i)risoner disposed
of, according to law and justice, .... 730
shall be discharged, if restraint, itc, be
illegal, 73:
shall not be discharged by superior court
when committed on process from
supreme court, 73'.'
shall be bailed, when legally detained for
bailable oiTence, or remanded, if suffi-
cient bail be not offered, 737
when remanded for such reason, court shall
order the sum in which he shall be held
to bail, -737
confined on sentence, may, after bringing
writ of error, be enlarged ou giving
bail, if entitled thereto, 740
if legally imprisoned, &c., and not bailable,
to whom shall he remanded, 737
HABEAS CO'RVUS — coutinvcd.
how kept, (tc, pending the examination of
his case, 737
entitled to recover a forfeiture, if copy of
any process under which he is de-
tained be withheld six hours after de-
mand thereof and tender of fees there-
for 738
if discharged, not to be restrained again for
same cause, except, &c., 737
when may be again arrested for same cause, 737
persons refusing or neglecting to obey and exe-
cute, to be proceeded against as for a
contemjjt, 738
sheriff, against whom attachment issues for con-
tempt, in such case, may be committed
to jail in another county, 738
who may serve process of attachment, in
such case, on sherifT or his deputy, . . 738
on refusal, ifcc., to serve, eourt, &c., may issue
new precept to bring up prisoner, . . 738
forfeiture to prisoner for refusing, &c.,to receive
and serve writ, 738
for removing or concealing him, to elude
writ, 738
recovery of such penalty not to bar action for
false imprisonment or false return,
&c., 738,739
judge of supreme and superior court not hereby
restricted from issuing habeas corpus
and admitting to bail, 737,738
magistrates not hereby prevented from bringing
in prisoners for trial, or witnesses in
any suit, 738
In case of persons claimed to be held to
service and labor, 730
any party to proceeding may demand tri;d
by jury, 73G
person so claimed may be held to bail in not
over two thousand dollars, 730
form of issue and plea, 730
jury may return a general verdict, and exer-
cise the same discretion as in criminal
cases, 730
verdict of " not guilty " to be final and eon-
elusive, 730
jurors, how summoned, and penalty for non-
attendance, 730
when one jury disagrees, another may be
summoned, 736
if claimant appears, must state his claim in
writing, 736
neitlier claimant nor alleged fugitive to be
witness, 730, 737
admissions or confessions of alleged fugi-
tive not to be evidence, 730,737
burden of proof on claimant, 730, 737
amount of evidence required, 730,737
ex parte depositions or affidavits not admis-
sible, 737
no presumption in favor of claimant from
proof that the alleged fugitive or his
ancestors had been held as slaves, &c., 737
In case of persons arrested as fugitives
from justice, S54
opportunity to apply for, to be given to per-
son arrested, 854
notice of application to be given to attorney-
general or prosecuting officer, .... 854
penalty ou officer for extrathtion of such per-
son without permitting application for
habeas corpus, 854
INDEX.
999
HAT.F BLOOD.
to inlitrit equally with those of whole blood, . 474
HALF-TIDE ROCKS.
ami buoy ou, eodi-d to United States, 44
HAT.g-'WAY BOCK.
codt-d to Unitwl States, 44
HARBOKUNTG.
felon, how punished, 82G
or protecting an enemy, by soldier in actu;U
service, 121
HARVARD COLLEGE.
powers, rights, und i)ri\ileges of, coutirmed, . , 28
g:ifts, g^rants, &c., to be held accox-diug to intent
of donors, 28
overseers of, 28
alteration of govcrnmcut of, may be made by
g-eneral court, 28
professors, &c., to impress upon youth princi-
ples of piety, temperance, &c., . . . 216
HAWKERS AND PEDLERS.
arti^-Ies whidi may be sold by, without license, 281
sale of such articles by minors may be regulated
by cities and towns, 281
penalty for violation of such regulations, . 281, 282
sales of certain articles by, prohibited, 282
licenses of, how :md by whom granted, . .... 282
form and cfiect of, 282
fees for, to secretary of state, and town, or
city troiisiirer, 282
when to bear date, and term of, 2S2
to be recorded, 283
state and county, upon what terms grant-
ed, 2tt2, 283
sums paid for, to belong to state, county,
«tc., receiving the same, 283
not to protect party sellmg articles illegally, 283
void, if parties violate the law, 283
number of, and name and residence of party,
to be placed on jjarccls, &c., 283
synopsis of law to be printed on, 283
to be exhibited to cert;un officers, on de-
mand, under penalty, 28:3
penalty for counterfeiting or forging, . . . 283
for selling after expiration or forfeiture of, 283
when licensed as auctioneers, not to sell except
in place for which he is licensed, . . . 283
penalty on, for acting witliout license, 283
HAY.
weighers of, to be appointed by selectmen,
&c 101, 2(30
duties and fees of, i.'00
may be removed by selectmen, &c., .... 2G0
pressed, how to be branded, 200
to be forfeited, if sold without being branded, 206
bale or bundle, inspectors of, may be appointed, 266
duties and fees of, 206
to furnish with weights, &c., 206
bow numbered and marked, 266
penalty for selling without inspection, . . , 260
inspection may be wiuved by agreement, . . 267
■what exempt from attachmeut and levy on exe-
cution, 0-'4, GSS
HAY SCALES.
superintendents of, to be appointed, .... 101,266
duties and fees of, Ac., 266
penalty for setting up, witliout authority, . . , 266
to bo sealed, ifrc, annually, 285
HEALTH. (See Hoard of Health.)
measures for preservation of, 188-194
punishment for adulterating food, medicines,
&c., and otlier offences against public
health, 794, 822, 823
HEIRS.
who shall be, of intestate property, .... 474, 485
entitled to lands conveyed by ancestor ou gam-
ing consideration, when conveyance is
adjudged void, 436
may administer ou property deposited by pubhc
administrator in state treasury, .... 487
when and how liable for debts of ancestor, . . . 507
actions against, for such debts, not barred by
provisions for actions against execu-
tors, &c., 492
not liable to pay more than amount received
from deceased's estate, 507,508
liable to contribute among themselves in cer-
tain cases, 479, 503
having clahn for further damages against execu-
tor, &c., after judgment on bond, may
Iiave scire facias and new execution
thereon, 507
powers and duties of heirs of creditor when
judgmeut debtor redeems land taken,
&LC., on execution, 523
how may be made parties to real and mixed ac-
tions, and petitions for partition com-
menced by their ancestors, . . . .019,650
may commence and prosecute suits for redemp-
tion of mortgages, "15
may bring actions of waste for waste done in
time of ancestor, 708
may have same right to apply to county com-
missioners in certjun cases as their
ancestors hail, 050
HEBEDn'ABY OFFICES.
absurd and unnatural, 14, 15
HERRESTG.
regulations concerning the inspection and sale
of, 2(3;i, 264
HERRING POND INDIANS.
appropriation, Ac, for schools for, 213
HIGH"WAYS.
word, how construed, 51
money may be granted by towns for laying out,
Ac, 158
Laying Out and Discoxtixuaxce.
petitions for laying out, Ac, to be made to
county commissioners, 232
not to be proceeded ou, until parties recog-
nize for costs, in case, Ac, 2-32
notice of, how given, 232
commissioners to view route of, 233
to hear parties, and adjudicate upon neces-
sity of laying out, 233
to proceed to lay out, Ac, as soon as may
be after adjudication, 233
to give notice before laying out, 233
may make changes of, between termini, . . 233
may lay out, Ac, highways, within six
months, if no one objects, Ac, .... 233
may discontinue highway, Ac, at time of
view, 233
return of proceedings at next meeting to be
held to be discoutiuuauce, 233
may order specific repairs upon existing
ways, upon petition for laying out
new highways, in certain cases, . . . 233
to give notice in such case, aud apportion
expense as in laying out. Ac, .... 233
may temporarily close highways during re-
pairs thereon, 233
may locate anew existing highways, on ap-
plication by town, Ac, 233
1000
INDEX.
HIGHWAYS — continued.
muy iissess expense of such locating anew,
&c., ou town, county, or petitioners, , 233
to prescribe manner and time for making;
liiy^lnvay when laid out or altered,
&c., 333
to transmit to clerks of towns in which
highway lies a description of location,
&C., 234
Buch description to be recorded by town
clerk within ten days, 234
to allow reasonable time to owner of land
for removing; trees, Ac, 234
if such trees arc not removed within time
allowed, right to be deemed relin-
quished, 234
to estimate damages caused by laying- out,
&c., 234
not to order such damages to be paid till
laud is taken for coustruction of high-
way, 234
to allow indemnity to persons chiimiug'
damages in certain cases, though no
entry is made, 234
to estimate damages caused by specific re-
pairs, &c., 234
to order damages to be paid at first meeting
after repairs arc made, 234
if repairs are not made, &c., may allow ac-
tual damage, 234
manner of estimating damages in case of laying
out, altering, &c., 234
if claimants Lave different interests, entire dam-
ages to be assessed and paid to trus-
tee named by parties, 234
damages, how disposed of in sucli case, . . 234
trustee to receive damages, &c., to be ap-
pointed by probate court, in certain
cases, 234, 235
party aggrieved by laying out, &c., or by esti-
mate of damages, may liave jury, . . 235
or a committee appointed under direction of
comnussiouers, 235
powers of jury in such cases, 235
applications for jury to revise location, &c.,
when to be received and acted ou by
commissiouers, 235
to revise assessment of damages to be niade
within one year, &c., 235
may be made jointly by several claimants,
&c., 235
of dilTerent parties pending at same time, to
be determined by same jury, 235
if one of several claimants having different
interests applies for jury, otiiers may
become parties, &c., 238
no jury to be ordered, &c.; until petitioners re-
cog'uize for costs, 2:35
petition for jury not to abate by death of par-
tics, 235
executors, &c., may prosecute in such case, . . 235
if executors neglect to prosecute, surviving jic-
titioners may proceed, 235
jury, warrant for, to be directed to sheriff,
Ac, 235
how and whence summoned, 230
penalty on person sunnnoned to serve on, for
neglect to attend, 230
if not full, talesmen may be returned, 2-30
to be sworn, 236
commissioners may appoint person to preside
at trial, 236
if no pirwon appointed, sheriff to preside, Arc, . 236
duties of presiding officer, 236
commissioners to take notice of petition for, in
behalf of their county, &c., 23(J
aud may appoint agent to act before, for coun-
ty, 236
notice of time aud place of meeting of, to be
given by officer who summons, . . . 236
fees of officer for summoning, 23G
such officer to certify fees of, together with liis
own, 23G
to view premises, hear evidence, &c., and sign
verdict, 236,237
to determine title to lauds only, as respects
damages of coHiplaiuant, 237
may cxteud time for removing trees on land
taken for layiug out, &c., 237
verdict of. to be enclosed iu sealed wrapper,
with indorsement, &c., 237
verdict to be given within three months after
order for, 237
to be returned to superior court, &c., • . . 237
may be set aside by court for good cause, . 237
if accepted and recorded, to be conclusive, . 237
if jury do not agree, complainant entitled to new
jury until verdict, &c., 237
complainant may waive his right to jury, and
accept damages awarded by commis-
sioners, 237
if questions ai'C determined by a committee, re-
port to be made within three montlis
after appointment, 237
proceedings iu sucli case same as upon return of
verdict by jury, 237
if jury or committee do not alter decision of
commissioners, costs to be pjiid by
applicants, 237
questions of costs to be determined by court to
which verdict, &c., is returned, . . . 237
notice to parties interested, how given in such
case, 239
party having notice, and neglecting to appear, to
be barred from application for dam-
ages 239
jury to apportion damages in their verdict, . . 239
verdict in such case to be conclusive on persons
who have become parties or had no-
tice, 239
costs in such cases, how taxed, 239
not to be opened, or worked, or shut up until
meeting of commissioners after ver-
dict, &c., is certified to them, .... 237
commissioners may then allow further time for
making, &c., 237, 238
when finally laid out, &c., or specific repairs or-
dered, expenses of jiroccediugs, Ac,
to be paid by county, 238
if not laid out, &c., expenses to be paid by peti-
tioners recognizing therefor, 238
expenses, how paid aud collected if petitioners
refuse or neglect to pay, 238
if not made by towns liable, commissioners to
cause tliem to be made, 238
expense of making such highways to be paid
from county treasury, and delinquent
towns notified, 238
how collected of delinquent tOAvns, .... 238
incurred by town, may be paid by county
by order of commissioners, 238
commissioners to view such highway, and cer-
tify completion to.county treasurer, , 238
INDEX.
1001
HIGHWAYS — continued.
Town ways, mouey miiy be granted for laying
out, &c., 158
and private ways may be laid out by select-
men, 239
may be discontinued by town at a meet-
ing called for the purpose, 239
not to be laid out, <tc., until notice to
owners of laud, &c., 239
notice, how given, 239
damages for laying out, how determined
and paid, 239, 240
not to be paid until land is entered upon
for coustructiou of way, 240
if land is not takcu, &c., indemnity may
be allowed, .tc., 240
if there are different interests in laud
taken for, damages how assessed, 234, 240
location of, to be accepted at legal town
meeting before laying out, 240
and filed in town clerk's office seven
days before such meeting, 210
may be laid out by county commission-
ers, in certain cases, 240
may be made and completed by commis-
sioners, if town neglects, 240
expense of making, may be paid from
county treasury in such case, and col-
lected of town with interest, &c., 240, 241
when laid out, Ac, by commissioners,
town not to discontinue within two
years, 241
may be discontinued by county commis-
sioners if to»-u refuses, 241
when so discontinued, town not to lay out
again within two years, 241
when application to lay out, is made to
commissioners, recognizance for costs
to be required, 241
commissioners to give notice before view-
ing, &c., 241
parties aggrieved by laying out, &c., may
have jury to aseertmu damages, &c., . 241
order for jury, in such case, to be made by
commissioners, 241
powers of jury, 241
costs in such cases, 241
owner of land taken for, to have time for
removal of trees, A;c., 241
noglectingto remove within time allowed,
to be deemed to relinquish right, 241, 242
time for removing trees, &c., may be ex-
tended by jury, 242
commissioners or selectmen to transmit to
town clerk location, &c., for record, . 241
such location to bo recorded by town clerk
witiiin ten days, 241
legality ol', wlien laid out and accepted, not
to be contested by town, 242
liability of railroads for damages at crossings, . -159
application for damages to private ways, occa-
sioned by railroad, when to be made,
&c., 353
Ways in the county of Siiffolk, board of
alaormen in Boston to liave powers
of commissioners couctrning, .... 242
county commissioners of Middlesex to have
like powers in Chelsea, North Chel-
sea, and "Wiuthrop, 242
parties may have jury, in said towns, as in
other counties, 242
warrant for jury, to whom directed, .... 242
84* 12G
HIGHWAYS — continued.
verdict to be returned to superior court, . . 242
applications for laying out, &c., in Boston,
how made, 242
parties aggrieved may have trial by jury in
superior court upon application, . . . 242
Ways in cities, what provisions apply to
laying out, Ac, 242
Dedication &f ways.
ways dedicated to public use not chargeable
to city or town, unless laid out and
established according to law, .... 243
selectmen, &c., may close, or caution public
against entering on, such ways, if dan-
gerous, &c., 243
if not so closed, &c., city or town liable for
damages arising from defects in, . . . 243
abutters upon, to grade, 243
refusing to grade after notice, selectmen,
&c., may grade Jit their expense, . . 243
expense of such grading to be assessed
on, and to constitute lien on real es-
tate, 243
selectmen, &c., may establish grade of such
ways, and dejjosit plan in office of
town clerk, &c., 243
persons making improvements on land abut-
ting on such ways to conform to
grade, 243
grading by abutters not to be construed as
a dedication to the jmblic, 243
establishment of grade by selectmen, &c.,
not to be construed as acceptance of
the way, 243
not to be dug up or obstructed without con-
sent of selectmen, &c., 243
Ascertaining location, selectmen, &c., upon
representation of ten or more free-
holders, to ascertain correct location
of ways, Slc, and file certificate, &c., . 243
Erection of monuments, &c., county com-
missioners, selectmen, &c., to erect
permanent bounds of ways laid out
by them, 244
if commissioners, ifcc, neglect to erect such
bounds, on request of owner of land,
county or town to be liable to such
owner, 244
Ways over burying -grounds, not to be
laid out or constriu-tod tlirough bury-
ing-grounds, except by special author-
ity of law, or consent of town, .... 244
not to be laid out tlirough private burial-
ground without consent of proprie-
tors, 244
penalty for so laying out, &c., S22
Repairs of "NTays axd Brioges, and Damages
FOR Depects IN'.
Public ways and bridges to be kept in re-
pair at expense of to\vn, 245
when several towns liable to keep bridge in re-
pjiir, county commissioners may pass
orders concerning the same, 245
towns to vote sums to be paid in labor, &c., for
repairs of, 245
towns may raise money for repairs, 245
such mouey to be assessed and collected like
other to^A"n taxes, 245
persons taxed may pay tax in labor, &c., . . . ^ 245
towns may empower surveyors of highways to
collect taxes, * » , . 24S
1002
INDEX.
BXaSW AYS — eontimied.
duties aud powers of surveyors of hig'hways,
245, i;40, 247
towns may make contracts for repairs thereof, 240
watercourses in, to be regulated by selectmen,
&c., 240
surveyors may repair, with consent of selectmen
when towns neglect to raise money, . 240
damages occasioned by repairs of, to be deter-
mined by selectmen, &c., and paid by
town, 247
benefit caused by repairs, &c., to be set off, . . 247
aggrieved pai-ty may apply for jury, or by
agreement have committee to lix dam-
"t'os, 247
if life lost by defect iu, county, ifcc, liable to iiue
of cue thousand dollars j how and to
whose use 6uch fine Bhall be recovered, 2tr
damages caused by defect existing' in, for twenty-
four hours, to be recovered of town
corporation, &c., liable to repair, . . . '^47
not to be recovered by party whose car-
riage and load exceed six tons, . . . 247
defendants in such cases may make tender
to plaintiffs, 247
to recover costs if plaintiff does not re-
cover more than amount tendered, . . 247
penalty on towns for neglect to repair, .... 247
fines imposed iu such cases to be appropriated
for repairs, 248
in suits for injuries, location not to be denied, if
dcleudant has made repairs within
six years, 248
Private ways and bridges, meetings of pro-
prietors of, how called, 248
proprietors to clioose clerk and surveyor,
who shall be sworn, 24S
may determine miumer of calling future
meetings, 248
may determine what repairs are necessary,
aud apportion money for same, , , . 248
penalty on, for withholding proportion,
and to what use, &c., recovered, . . . 24S
may contract for repairs, 248
may raise money to fulfil such contracts, 248
may choose assessors, 248
assessors to assess proprietors and deliver
list and warrant to surveyor, 24S
sm'veyor to have powers of surveyors of
highways, 248
penalty for refusal to serve as, and to what
use, &c., recovered, 24S
may collect taxes, 248
penalty on, for neglect to pay over money
thus collected, 248
Rkgulations and By-La-\v9.
Guide posts, to be erected, maintaiued, &c., . 249
Sidewalks, when and how made, .tc, . . 24!), 250
provisions concerning removal of snow, &c.,
from, 250
By-laws, respecting pastui-ing cattle, and fast
driving, 250
Boundaries and Encroachments.
when buildings, fences, &c., shall be deemed
boundaries of, 251
adjudged nuisances, taken down, &c., costs,
how paid, ... • 251
fences, &c., across, when and how may be re-
moved, 251
-Shad© trees may be planted in, 251,252
HIGHWAYS - condnued.
penalty for injuring, 252
owner of beast damaging, liable, 252
252
378
803
may be set out at public expense, &c,
associations for planting, how formed, &c.,
HIBEK.
of personal property selling without written
consent of owner, how puuisherl, . .
HOLIDAYS, PUBLIC.
Christmas, Fast, and Thanksgivhigdays, Twen-
ty-second of February, and Fourth of
July, 49, 2'.J3, C17
general court not to sit on, for transaction of
ordinary business, 49
U17
49
618
293
44
. public offices to be closed,
courts not to be opcucd on, except, &c.,
notus, i:c., maturing on, when payable, . . .
HOLMES* HOLE.
land on west chop of, ceded to United States, .
HOMESTEADS.
of householder having a family, to value of
eight hundred dollars, exempted from
attachment, &c., 524
how such homestead, &c., acquired, .... 524, 525
rights of, under former laws, preserved, .... 525
but none shall exccetl in value eiglit hundred
dollars, • 525
mortgaged property subject to right of, but not
as against mortgagee, 525
but when owner of residue above homestead
aud mortgage redeems mortgage, he
shall not set up the same against
owner of homestead, unless owner
offers to redeem such residue in case
of set-off on execution, 525
not exempt from levy for taxes, ground rent,
&c., 525
not to defeat pi'evious liens, 525
may be conveyed, and how, 523, 540
partition of property subject to, 525
may be set off to owner in case of his insol-
vency, 525, 52C
appraisers to be appointed in such case, .... 526
to be sworn, 526
duties of, 520
execution may be levied on property in which
homestead exists if value of whole
property exceeds eight hundred dol-
lars,
appraisers to be appointed and their duties, . .
to continue after death of householder for bene-
fit of widow and minor children,
rights in, of widow aud children, may be set off
in same manner as dower, ...... 52G
how may be sold and money apportioned, &c., 526
confirmation of conveyances under certain re-
pealed laws, 526
how estate of, may be conveyed, in case of the
in sanity or giiardianship of parties, 539, 540
HOOPS AND STAVES.
cullers of, to be chosen in maritime towns, and
sworn, 267
quality and size of different kinds of, 267
fees for culling, and by whom paid, 267
penalty for fraud in culling, 267
hoops of (Ufferent lengths to be put in distinct
bundles,
bundles of less than thirty, or packed of
less than required dimensious, to be
forfeited,
and may be libelled, and sold for benefit of
town, 267
526
526
526
267
267
INDEX.
1003
HOPS.
uot to be exported, if growth of this state, with-
out inspection, &c., 20"
need not be reiuspected, if grown and inspected
in another state, 2G7, 2(iS
quality of, and how packed, 2(>s
how inspected, sorted, and branded, 2(>S
penalty for shifting contents of bag's without
obliterating marks 268
for altering or counterfeiting marks, .... 268
for intermixing after inspection, 268
for exporting, &c., uminspectc'd, 268
to be forfeited, if expoi-tetl, &c., without inspec-
tion, 2GS
when shipped coastwise, for insi)Cftiou within
the state, provisions not to apply, 208, 200
Inspector-general of, how appointed, and
term of office, 25S
to be sworn, and may appoint deputies, 258, 267
to give bond, 267
may require bonds of, and be resjwnsible for
deputies, 267
to make return annually to secretary of
amount inspected by himself, &c., . . 268
or deputy to examine, sort, &c., all hops in-
tended for exportation, 268
penalty on, for delay or fraud in inspecting, 268
may seize aud libel hops, if shipped without
inspectiuu, . . • 268
HORSE -RACLNG.
for money, Ai-.. prohibited, 825
HORSE RAILROADS. (.Sec nailrotuh.)
jtrovisions respecting, 370
HORSES. (*'ee Bcasta.)
what and where taxable, 70
going at large contrary to law, &c., to be im-
pounded, 185, ISO
penalty for unlawfully taking and driving, . . 801
HOSPITAL.
may be established by town for reception of
persons having dangerous diseases, . 192
to be under direction of board of health or com-
mittee of town, 192, 193
not to be within one hundred rods of dwelling
house in adjoining to^vn, without con-
sent, &c., 193
physicians, &c., of, to be under direction of
board of health, 193
penalty on, for violating regulations, ... 193
to be provided by board of health when danger-
ous disease breaks out, 193
Ou Rainsford Island, inspectors and other
officers, appointment of, 400
inspectors to establish rules antl visit hospi-
tal, to make annual report, 400
to make certain inventories annually, ... 55
superintendent to give bond, . . . ' 400
inmates of, may be transferred by alien com-
missioners, 397
foreign pr..upers arriving, sick, to remain at, 400
sick state paupers may be sent to, by towns,
by permission of alien commissioners, 400
expenditures at, how to be approved, &c, .' 400
superintendent may complain in bastardy
cases if woman refuses to complain, . 404
State lunatic, at Worcester, Taunton, and
Xortliamiiton, 406-411
(S.c Lunatic Hn.<],ital^.)
HOUSE OF REPRESENTATIVES, (see
llf present at ivcSi) 34-39
HOUSE RENT.
debts for, to be deemed claims for necessaries, . 472 ;
HOUSES.
when may be impreBsed &e., for reception of the
sick, 190
how cleansed, &c., by order of board of health, l«y
(5ee linihVmgs.)
HOUSES OP CORRECTION.
to be provided in every county, except Duke's
county, 144,858
at expense of county, except in Suffolk, 144, 858
in Suffolk, by aldermen, at expense of city
of Boston, 144, 858
in Nantucket, by selectmen, 148
in other counties, by county commissioners, 858
shall have convenient yards and workshops, &:e., 858
yards of, to be so fenced as to prevent communi-
cation and escape, 858
jails to be used for, and yards thereof fenced as
above, till others are provided, .... 858
materials and tools for labor of convicts in, to
be provided at expense of counties or
city, ^^o8^ 865
to be provided by commissioners, or in Bos-
ton by directors, 858,859,865
expense of such materhUs, &c., how to be
paid, 858, 859
of keeping, &c., convicts in, how paid when
they and tlieir kindred, &c., are not
able, &c., 864, 865, 866
to be for safe keeping, correcting, employing,
&c., of offenders legally committed
thereto, 858
of those committed by the United States,
except under the fugitive slave law, . 858
may be used for confinement, &e., of convicts
puuisliable, wholly or in part, by un-
prisonment in county jail, . . . . 8i4, 845
proceedings of justices and courts, before com-
mitting vagabonds, &e., to, ... S20, 821
rules and orders for restraint and government
of prisoners in, how established, isiS, 859
master and overseers of, to be appointed and re-
moved by eommiesioners or city coun-
cil, SOS, 860
Overseers of.
to be two or three in number, 858
appointed annually by commissioners, except in
Suffolk, So8
how removed and vacancies filled, 858
pay not to exceed one hundred dollars per an-
num, 858
to be determined by commissioners, , . . , 858
in Suffolk, directors of public institutions to
be, 858, &59
city council to fix compensation of, 858
general powers and duties of, 859
to see that rules are observed, 859
may contract for work to be done in the
house, 859
for letting to Iiire the prisoners in the day-
time, 859
may discharge certain prisoners supposed
to be reformed, 859
may discharge eert;iin prisoners after six
mouths from the time of sentence, 859,860
may bind out as apprentices such persons
during their sentence, gso
rights and duties of master,apprentice,&c., 859
not affected by age of party bound, . . . 859
if contract of service, &c., is ended, pris-
oner to serve out rest of sentence, if
any, 859,860
1004
INDEX.
sr.i
HOUSES OF COKRECTION — coH^inwed.
authority of overseers to receive children of
certain female convicts,
to oversee sentences of solitary imprison
ment and hard labor,
may puuish refractory prisoners,
to consider jailer's record of prisoners' con-
duct when recommeudiug to executive
clemency, SOi
to audit accounts for support of convicts
twice in each year and ofteuer, .... SG5
IXSFECTORS OF.
in Suffolk, judge of probate court and justices
of police court to be, SGO
in other counties, the county commissioners, . 800
returns to be made to, by master, 800
powers and duties of, 800, 807
to designate place of removal of prisoners,
to have access to books, accounts, prisoners, &c., 807
if pestilence breaks out in prison, . . 804
may converse with prisoners apart from officers, 807
to notify district-attorney of violation of any
law in relation to prisons, 807
to make annual returns to governor, 807
to transmit copies of information given district-
attoi-neys, 807
to state expenses incurred in providing moral
and religious instruction, 807
form of returns of, 808
Master of.
in Suffolk, to be appointed by city council, . . . hUi
in other counties by the shei'iff, 800
how and for what cause may be removed, . . . 800
to continue in office on death of sheriff, .... SGI
until new sheriff is appointed, 801
or governor removes, or appoints new one, 801
when appointed by governor, to give bond with
surety, 801
to appoint subordinate officers, 800
exempted from military duty, 93
compensation of, how to be established, . . 800,805
shall keep calendar of prisoners, sOO
penalty for neglect, 800
what the calendar shall contain, SGO
duties as to bodies of deceased prisoners, ... 801
to give female prisoner custody of her child
under eighteen months, SOI
duties as to classification and separation of pris-
oners, SO'J
penalty for violation of this duty, 803
to furnish convicts with work, and govern
them, 862, 803
shall have inspection of convicts let out to hire,
and of their treatment, 859
shall make returns, twice a year, to inspectors,
of state, &c., of houses ; contents of
such returns, 806, 807
to exhibit books, papers, &c., to inspectors, . . 867
to keep record of conduct of oxjnvicts, 864
in case of pestilence, may remove prisoners to
designated place, 804
not to contract for support of insane paupers
without consent of commissioners,
under i)enalty, 412
to supply fuel, clotJiiug, and bedding to con-
victs, at county expense, 805
to obey commissioners or aldermen as to specif-
icratiousto be furnished to convicts, 805
penalty for disobedience, 863,865
duty of, wheu inspectors visit, 807
HOUSES OF CORRECTION -<-o»;;h««/.
duty of, as to rogues committed, &c., 820
to receive and account for moneys advanced for
materials, tools, &c., for convicts, . . 805
to expend moneys so advanced, under direction
of commissioners, or mayor, 805
to keep account of earnings of convicts, and
of materials furnished them, &c., . . 865
to dispose of articles made by convicts, and
keep accounts of the proceeds, &c., . . 805
to pay into county treasury, as commissioners,
&c., direct, the amount of sales, pro-
ceeds of labor, &c., 8(»5
duties of, as to keeping houses clean. 861
no permanent vault to be used, 8G1
duties as to personal cleanliness, comfort, and
food of prisoners, 861,802
to furnish Bibles or Testaments to convicts that
can read, &c., 863
to provide moral and religious instruction, . . . 863
to receive compensation for board of convicts,
and for services, 860, 805
not to furnish spirituous or mixed liquors to
those in confinement, 863
penalty for so doing, 803
to notify cities or towns when persons are com-
mitted whom they are liable to sup-
port, 806
not to pay rent for dwelling-houses pi-ovided for
them by counties, SGO
Convicts in,
how to be treated, when sentenced to solitary
imprisonment and liard labor, .... 802
when refractory, or refuse to labor, .... 81(2
when disorderly, or wilfully injure house
or furniture, &c., 802,803
not to have spirituous liquor, wine, strong beer,
or cider, unless by prescription of
physician, S03
penalty on master and others for furnishing
such liquors, 863
male and female to be kept in separate rooms, . 862
minors to be separated from notorious offenders, 862
those committed on charge of crime to be sep-
arated from convicts, 862
those sentenced for different degrees of crune
to be kept separate, 862
not more than two to occupy same room exee])t
for work, unless houses are crowded, 802
penalty on master for violating these provis-
ions, 863
may be visited by any clergyman they desire, . 863
how may be removed, if exposed to dangerous
sickness, or to fire, 864
how punishable for brealdng prison and escap-
ing, in different cases, 864
liable to double damages, in action for trespass,
for injury to houses, furniture, &c., 862, 863
by whom vagabonds, &c., may be discharged on
reformation, 859
sentence of, on second eonvlction after being
thus (Uscharged, / 821
expenses of, may be recovered of conWcts, . . 865
or of their kindred, 865, 866
with infectious diseases may be removed to hos-
pital, &c., by order of board of health, I'Jl
return of removal to be made to court ordering
commitment, 101
such removal not an escape, 191
paupers discharged from, to be removed to state
almshouses in certain ciwes, . . , 401, 402
I
INDEX.
1005
HOUSES OP CO'RR'ECTIO'N — continued.
if convict is too sick to be removed, how pro-
vided for, 402
officers of, exempted from military duty, .... 93
HOUSES OF rNDUSTRY.
powers, itc, of keepers and directors of, in re-
spect to certain persons committed to, 820
piiniKhment for osc^ipe from, 804
HOUSES OP ILIi-FAME.
to Ik- ileenit_-d coiiiuiou nuisances, 454
penalty for keepiujj, 454, 818
use of premises as by tenant, to avoid lease, . . 454
penalty on landlord for letting house to be used
as, 454
lease of house so kept, void at option of
lessor, 818,819
remedy of lessor to recover possession, . . 819
HOUSES OF KELIGIOUS "WORSHIP,
and furniture, &c., therein, exempted Irom taxa-
tion, 74
HOUSEHOLD PUBHITURE, &c.
^vbat exempted from taxation, 74
exempted from distress for taxes, 82
frniu attachment and execution, . . . .624,088
HOUSEHOLDERS. (See Boarding Houses.)
to give uutiL-e, under penalty, to board of health,
&c., of dangerous diseases, 193
HUMAISTE SOCIETT.
iujury, removal, .tc, unla^vfully of property,
&c., of, how punished, 80G
of life boats, &c., of, 8(JG
pilots, commissioners of wrecks, &c., to make
complaint, 800
HUM SANDS.
buoy on, ceded to United States, 44
HUSBAND. {See Ma rrkd Woman.)
certain provisions respectiug husband and
wife, , 539-^2
in case of divorce, rights of, in property of wife,
&c., 535
may be examined on oath as to personal
property of wife, 535
alimony. Ac., in estate of, 530, 536
property, itc., of married women not subject to
control of, or liable for his debts, 537, 538
not liable forcontrat-ts of wife made in reference
to her separate property, trade, .tc, . 538
married after June 3d, l}<o8, not liable lor debts,
&C-, of wife, contracted before mar-
i*ia^'"«?, '.538
judgments ag;iinst wife to be enforced agiunst,
in cert4Uu cases, 542
when to hold wife's lands alter her decease as
tenant by curtesy, 471,475,53d
does not become administrator, guai-dian, &c.,
in right of his wife, 5f>4, 540
entitled to wife's personal property on her de-
cease, 4K5
to administer on wife's est:ite, 4t>;j
when not punishable as accessory alter the fact
of felony conimilted I.iv wile, .... 820
HYANNIS IN BARNSTABLE.
land at, ceded to the L'niled Estates, 45
HYPOTHECATION.
of sliip or vessel, record not necessary to valid-
ity of, 767
L
ICE.
intended for merchandise, piinlBhment for wil-
ful, &c., injury to, SCH
companies for cutting', selling, <fcc., how formed,
&c., 341, 34.'!
IDIOTS.
ha\ iii;^ no known settlement, may be sent to
state almshouse, 401
fees allowed to officers in sueh cases, 401
IDLE AND DISOKDERLY PERSONS.
cuTunioii, liu^\ ljiii!islii-(l, S:;0, 821
IDLE AND DISSOLUTE PERSONS,
going about begging, how to be arrested, se-
curerl, and punished, 820, 821
ILLEGITIMATE CHILDREN, (.we Bm-
t„nh:, Chililnu,) . . . . 404, 4r4, 534, 549
ILL-FAME, HOUSES OF.
deemed common nuisances, how suppressed,
mi\ i>enalty for keeping, . . 454,818,819
IMMIGRATION.
of ciTt.iiii pfiwDus, provisions respecting, ... 5
IMPEACHMENTS.
made by house of representatives, and tried by
senate, 20, 21
under federal constitution, 2
house of representatives has sole power, . 2
senate has sole power to try, 3
proceedings in trials of, 3, 7
how, when the president of the United
States is tried, 3
judgment and sentence, 3
IMPEACHMENTS — continued.
party convi ■t,,l still liable to indictment, ... 3
president cannot i)ardon, &c., cases of, ... . 0
IMPLEMENTS.
what cvenipt from attachment and levy on ex-
ecution, (124, 088
of burglary, making, mending, or keeping, how
punished, 799
of gaming, provisions respecting keeping of, 4.35, 4.30
IMPORTATION.
of certain persons, provisions respecting, ... 5
IMPOUNDING.
of (Mttle doiuL.' damage, or illegally at Large, ISo, 186
IMPRESSMENT.
of bouses, nius.'s, &c., for sick, 191
IMPRISONMENT. {Sre Poor Debtor.)
no person suliject to, but by the judgment of his
peers or tbe law of the land, 15
foicible or secret, witbout authority, how pun-
ished, 79i
relief from illegal, how obtained by habeas cor-
pus, 7:)4-742
on mesne process and execution, how made and
relieved from, 533 511
of poor debtors for fraud, 038, 639
of persons committed on warrants of distress
in favor of the state, how relieved
from, 638
of insane persons, on mesne process or execu-
tion, how they may be removed or
discharged, 039,040
1006
INDEX.
IMPROVEMENT.
of meadows, boaehcs, ewamps, ttc, how may
ho iiiaik- by proprietors, 750-753
IMPROVEMENTS ON REAL ESTATE.
wheu ami how allowed to teuants in real ac-
tions, on recovery of judg-meut by
demandants, 693
(See Heal Actions.)
how and when to respondents in petitions and
suits for partitions, 703
made after first partition by probate court, how
compensated for wheu second parti-
tion is ordered, 70G
how recovered in informations for intrusion
and writs of entry, by parties not
concluded by judgments therein, 718, 719
EST WRITING.
the term to include printing-, engraving, &c., . 52
INCEST,
bow punished, 818
INCIDENTAL EXPENSES.
in appropriation bills, what to include, . . , , 140
INCOME.
from profession, trade, &c., how taxable, ... 74
from ijroperty subject to taxation, not to be
taxed, 74
INCOMPATIBILITY.
of offii-es, 30, 33, 49, 149, 742
INCORPORATION.
acts of, notice of iietitions for, how to be pub-
lished, 47
to specify amount of capital stock, .... 48
to be deemed public acts, 50
nSTDENTURE OF APPRENTICESHIP,
(see Apprentice^) 549, 550
INDIANS.
polls and estates of, exempted from taxation, . 75
guardians and treasurers of, tenure of office, . . 133
appropriations for support of schools for, . . . 213
prohibitions as to digging, &c., shell fish, not
to extend to, 433
lands held in trust for, how recovered against
persons unlawfully entering or in-
truding upon, or holding same, . . . 719
INDICTMENT.
persons not held to answer to second when,
&c., 790
for larceny, or destruction of wills, &c., what
need not state, 798
at trial of, certain disclosures not to bo evi-
dence, 798
forms of, in certain cases of embezzlement, . . 800
need not specify particulars of embezzlement, 800
against receivers of property, knowing it to be
stolen, need not aver conviction of
thief, 801
how to allege intent to defraud, 809
in cases of malicious gathering up and retain-
ing of bank bills, 810
against mother for murder of infant bastard, . . 818
by grand jury necessary to hold one to answer
for alleged ofl'ences, 790
except when process by information is ex-
pressly authorized by statute, .... 790
and in proceedings before justices* and po-
lice courts, and before courts martial, 790
for offences, except nmrder, to be found and filed
within six years, 839
for capital crimes to be found in superior court, 8;i9
to be transmitted to supreme court at next term
thereof for the county, and there en-
tered and tried, 839
INDICTMENT — ro7i(;)??/erf.
in Dukes county, to be transmitted to next
term of supreme judicial court for
liarnstable county, ami there tried, . 839
notice of, to be forthwith given to chief justice
of supreme court, 839
process on, for arrest of defendant, if not in
custody, to issue forthwith, 839
copy of, to be immediately served on defendant,
if in custody, 839
person indicted for offence punishable with
death, or imprisonment for life in the
state prison, to have list of jurors de-
livered to him, and liis witnesses sum-
moned at the expense of state, . . . . 839
copy of, and of indorsements on, to be griven,
without fee, to every defendant in
custody or under recognizance, if
for an offence punishable in state
prison, 839
for felony, not to be disclosed by officers of
court, nor grand jurors, if defendant
be not in custody, nor under recogni-
zance, 838
for forgery, or other offence, where an intent to
defraud is required to constitute the
offence, indictment sufficient if it al-
lege generally an intent to defraud,
without naming any particular per-
son, &c., intended to be defrauded, . . 809
not vitiated by certain formal defects, 842
provisions as to pleas to, 840
for certain misdemeanors, may be stayed upon
reparation to party injured, &c., . . . 839
persons held in prison, to be tried at next term
after six months' time of imprison-
ment, 840
or be bailed on their own recog^uizauce, . . 840
issues of fact in, how to be tried, 840
certain defects of form not to vitiate, &42
of railroad corporation, for loss of life, to be
prosecuted within one year, 362
on trial of, for forfeitures, jurors not to bo chal-
lenged on account of paying taxes in
any couuty, city, or town, 083
For capital crimes, to be tried in supreme
court held by four justices, . . . 553, 554
in counties where no law term is established,
special session to be held, 555
court, how convened in such cases, .... 555
special term to be held for trial of, if no
stated term is held within six months, 555
notices of such term, how given, and what
may be done at the same, 555
if found in Dukes county, to be tried in
Barnstable, 555
special session therefor, liow notified, . . . 555
forms of, for murder, not changed, 791
INDIGO.
not tobe sold by pedlers, 282
INDORSERS.
On promissory notes, may be sued with
maker, 654
form of declaration against, 6G4
of notes on demand, not to be charged, unless
demand Is made on promisor within
sixty days, 203
liability of, 293
Of civil process, required on original writs,
writs of audita querela, scire facias in
certain cases, petitions for certiorari,
and bills in equity, before entry, if no
INDEX.
1007
rNDORSERS — continued.
one of plaintiffs 1b an inhabitant of
this state, G22
of petitions for partition, 699
liability of, in such case, 657
may be required after entry of action or writ, in
certain cases, 657, 609
if insufficient, or he removes from state, new
indorser may be required, 657
if not procured according to order of court, suit
to be dismissed, with costs, G57
may be stricken off by permission of court, and
a new one substituted. 657
liability of, in all cases, for costs from com-
mencement of suit, 657
IKDUSTBIAL SCHOOL FOR GIRLS.
^^overnnifut of, to be vested in seven trustees, . 413
Trustees, how appointed, and tenure of oflSce, 41.3
to receive no compensation, except for ex-
penses incurred, 413
general powers and duties of, 413
to appoint superintendent and other officers, 413
to determine salaries of officers, subject to
approval of governor and council, . . 413
may expend money given for the erection of
buililiugs, &c., 417
may make, &c., by-laws, 413, 414
may discharge and bind out inmates, .... 415
may cancel indenture of apprenticeship, 415, 41G
to be guardians of girls bound out, 41G
duties of, as to instruction of girls, seleC"
tion of masters, ifcc, 416
one or more to visit school at least once in
two weeks, &c., 417
to make quarterly examinations, 417
abstract of quarterly reports, &c., to be
laid before governor and council an-
nually, 417
to make certjiin inventories annually, ... 55
Treasurer of, to be appointed by governor
and council, 414
to give bond, 414
to receive, &c., legacies, donations, &c., . . 414
to submit detailed account, annually, to gov-
ernor and council, 417
Superintendent of, how appointed, 413
duties of, 416, 417
to give bond, 416
to have charge of property ^vitliin precincts
of school, 416
to keep accounts of receipts and expendi-
tures, and account to treasurer, . . . 416
books, &c., of, to be open at all times to in-
spection of trustees, 416,417
to keep register of girls, &c., 417
to make all contracts on account of the insti-
tution in writing, &c., 417
may sue and be sued on such contracts, . . , 417
suit by, or against, not to abate by reason of
vacancy in office, 417
annual report of, to be laid before governor
and council, 417
Commitments to, by whom and how made,
&c., 414
girls between seven and sixteen years of age,
for what causes, may be committed to, 414
summons to be issued to parents, &c., of,
and how served, 414, 415
second commitment may be made without
summons to parents, &c., 415
examination, trial, ttc., 414
form of warrant of commitment, 414
IWDtrSTRLAX SCHOOL, &iQ. — conthmed.
variance from such form, when not material, 414
courts may transfer girls held for criminal
offences, to judg'cs, &c., authorized to
commit, «... 415
fees allowed to judges and officers, 415
girls ordered to be committed to, may appeal, 415
to be kept in school until bound out, &c., . 415
may be discharged or bound out by trus-
tees, 415
indenture of apprenticeship of, not to be as-
signed, 415
except in case of death of master, with con-
sent of girl, approved by trustees, . . 416
but may be cancelled by trustees, in certain
cases, 415,416
may be discharged from apprenticeship by
judges, &c., on complaint of trustees,
for cruelty, &c., of master, 416
trustees to be guardians of, when bound
out, 416
provisions for instruction of, &c., 416
rcLjri^ter of, how to be kept, 417
LNPORMATIOISr OF IlSTTBUSIOISr.
how prosecuted by atloruey-general or dis-
trict-attorney against parties unlaw-
fully entering or intruding upon,
or holding lands of, the common-
wealth, 717,718
to be filed in supremo court in any count)% , . 717
shall describe the lands and set forth title of
CO nmion wealth, ., 717, 718
summons, how issued, served, and where return-
able, 717,718
when title of state is founded on forfeiture for
breach of condition in conveyance by
state or by the colony of Massachu-
setts Bay, suit tlierefor not to be com-
menced unless by order of legislature, 71S
in other cases, attorney-general or district-at-
torney may commence suit, when he
has reason to believe title of the state
can be established, 718
public notice to be given in case of supposed
esclieat, and of persons interested
whose names are unknown, 71S
any person claiming an interest, although not
named as a party, nor served ^vith
process, may appear and answer in
suit, 71S
costs, how allowed, 718
if commonwealth prevails, defendant to be al-
lowed for improvements, and to be
charged with rents and profits, as in
writs of entry, 718
commonwealth to be deemed seised upon judg-
ment rendered without writ of pos-
session, 718
judgment conclusive against defendants who
appear and those who were sum-
moned in this state, 713
persons not concluded by the judgment may
bring writ of entry to recover the
land of commonwealth, 713
if commonwealth is seised, action to be brought
against tenant, or occupant, and addi-
tional service made on attorney-gen-
eral, or district-attorney, .... 718, 719
if commonwealth has granted the estate, action
to be brought against tenant of free-
hold, 719
if demandant is entitled to the premises, he
1008
INDEX.
rNTORMATION OF TNT'BXSSION- continued.
may have jutl^^iueut autl execution iu
commou furm, 718
if he recovers jiulgment, lie shall be entitled to
rents and prolits, and chargeable with
improvements, 719
costs, how awarded and p:iid, 719
For Indian lauds, when any person unlaw-
fully enters into, intrudes upon, or
holds lauds, the title to which is in
the state, trustees, guardians, treas-
urers, or a<j;ent8 for Indians, how pro-
ceeded against, 719
information to be Idcd in superior court in
county where lands lie, l>y attorney-
general or district-attorney, 719
to be tiled by district-attorney, when he has
reason to believe land can be recovered, 719
proceedings to be as in cases of information
above mentioned, but if judgment is
for commonwealth, execution may
issue, 719
title upon such judgment, when trustees,
guardians, treasurers, or agents arc in-
terested, to vest in them, and in other
cases, iu the state, in trust, 719
in nature of quo warranto, by whom, and
where, may be filed proceedings there-
on, 744
persons held to answer under, 790
INHABITAJNTTS.
who deemed to be, 19, 51
census of, when and how to be taken, :iS, 39, 167, 108
INHERITANCE, &c.
Iiy riyht i)f rt'preseutation, how construed, . . 475
INJUNCTION.
to stay waste, may be issued by supreme court,
or a single judge, in term time or va-
cation, after commencement of suit
concerning waste, 710
may iu like manner bo issued by any court in
which proceedings are pending, when
person whose estate is att-iehed, or
agidust whom a real action is brought
on a mortg'age, or for recovery of
laud, commits or threatens waste, . . 710
court may require applicant to give bond, . . . 710
if disregarded, court may commit defoudaut, or
may issue otlur processes, 710
may be dissolved by judge in term tune or vaca-
tion, 710
may be issued by supreme or superior court, to
prevent or stay waste, wlien action
concerning a nuisance is pending, , . 711
how issued and dissolved in such cases, .... 711
supreme judicial court may issue, after granting
writ of audita querela, 743
or pending an application for a certiorari, . . . 743
after leave to file an information iu the nature
of a quo warranto, 744
INNHOLDERS AND COMMON VICT-
UALLERS,
may be licensed by county commissioners, upon
certificate of ajiproval by selectmen, 405, 45G
penalty for acting as, without license, 455
license to specify street, &e., where employment
may be exercised, 455
not to protect, if employment is exercised
elsewhere, 455
when to expire, 45C
list of, licensed preceding year, to be sent to
selectmen by clerk of commissioners, 450
INNHOLDERS, &c. — continued.
appUcations for hocuses, how to be made, &c., . 456
to eutertaiu travellers, &c., under penalty of rev-
ocation of license, &c., 456
not to entertain otlier than travellers on Lord's
day, &c., under penalty, 434
not to allow implements of gaming to be used
on premises, under penalties, .... 436
how liable for loss of property of guests, . . . 456
liable only for reasonable care, in case of loss by
fire, &c., 456
may show negligence of guests, or their non-
comidiunce with reasonable regula-
tions brought to thuir notice, .... 456
to put up feigns, with name and employment
thereon, under penalty, 457
further penalties to be imposed in case of sub-
sequent convictions, &c., of certain of-
fences, -157
not to give credit to students, under penalties, . 457
INQUEST ON DEAD BODIES.
to be taken by coroners, on view of, where death
is supposed to have been caused by
violence, 848
and in all cases of death from railroad ac-
cident, 848
railroad corporation to notify coroner, . . . 362
coroner, on notice of such death, to issue war-
rant for summoning six jurors, if
authorized in ^vritiug, 848
form of warrant directed to constable, 848
warrant to be served and returned by constable,
uuder penalty, 848
jurors to attend, when summoned, under
penalty, &iS
penalties on constable and jurors, to be recov-
ered by coroner, to use of county, . . 848
if six jurors do not appear, talesmen to be re-
turned, 848
no person shall serve on such jury oftener than
once in twelve months, S4S
coroner may issue subpoenas lor witnesses, . . 849
to administer oath to jurors and witnesses ;
form of oath, 848, 849
testimony of witnesses to be reduced to writing,
and subscribed by them, 849
inquisition to be secret, if coroner and mjy'ority
of jury order, 849
compensation of clerk, surgeon, chemist, &c., S49, 850
jurors to make inspection of dead body, .... S49
after hearing evidence, &c., to make and de-
liver to coroner their inquisition, . . 849
form of jurors' inquisition, 849
if jurors find that murder, &c., has been com-
mitted, witnesses shall be bound over
to next court, &c., 849
coroner may connnit witnesses who refuse to
recognize, 849
to return to court the inquisition, and other
papers, 8-19
may issue process to bring persons cliarged
by the jury before a magistrate for
examination, S49
to cause bodies to be buried, whether an in-
quest be taken or not ; at whose ex-
pense, 850
expense of, and of burial, by whom paid, in dif-
ferent eases, 850
of bringing to land dead bodies found in the
water, 850
of bringing the dead body of a stranger, . . 850
how audited and paid, 850
INDEX.
1009
INQUEST, Slc — continued.
justice of peace to act as coroner when there is
no coroner in a town, »S:c., 850
INSANE PERSON.
words, what to include, 51
by whom and how committed to state lunatic
hospitils, 407-409
persons applying for commitment of, to give
notice to selectmen, &c., 407
to file statement ; contents thereof, .... 40S
may liave jury of six to determine whether they
are furiously mad, 40S
jury, how selected, enlpanelled, &c., 408
deficiency in number of, how supplied, . . . 408
verdict of, to be final, 408
fees of, 40S
judge to preside at trial, 408
expense of trial, liow allowed and paid, .... 408
fees of judges for committing and discharging, . 408
of officers, for committing, &c., to be same
as for commitment to prison, .... 40S
court may make further allowance, .... 40S
having no known settlement, may be sent to
state lunatic hospital, 400
expenses of support in hospital, by whom
paid, and how recovered, 409
fees of magistrates, &c., in such cases, . . . 409
presence of, may be required or dispensed with
by judge, at hearing, 409
when town pauper, at what rates to be ad-
mitted to state hospitals, 409
exiJenses of support in Iiospital, and of re-
moval, by whom paid, and how
recovered, 409
how discharged and removed from hospital, . . 410
may be removed from bospit:ils to jails, &c., . . 410
removed from state hospitals to jiuls, &c., to be
under charge of county commission-
ers, 410
where to be confined, 411
remedies of counties, &c., for support of, when
BO removed, 410
rates of pay allowed by commonwealth, in such
cases, for lunatic having no known
settlement, 410
confined in jails, &c., may be removed to state
hospital by order of governor, .... 412
by order of trustees of state hospital, how
discharged or removed, 412
incurable, when may be removed from hospital, 410
question whether incurable, may be tried by
jury of six, 410
may be recommitted, if not comfortably
supported or is dangerous, 411
not to be discharged from hospital without suit-
able clotliing, 411
(See Lzmatic Hoapitals.)
County receptacles for, to be provided by
county conimi^^sioners, 411
special provisions concerning, for Essex
county, 411
persons removed from state hospitals to
jails, to be confined in, 411
insane person not furiously mad, havnig set-
tlement within state, may be commit-
ted to, 411
how ^d by whom committed, in such
cMe, 411,412
presence of lunatic may be required or dis-
pensed with, at hearing, 412
party entitled to a jury, 412
who liable for support of such persons in, . 412
85 127
INSANE VEB-SON — continued.
how may be discharged or removed from, . 412
keeper of, not to contract for support of
insane paupers without consent of
commissioners, 412
penalty for violation of this provision, . . 412
fees of magistrates, &c., in cases of commit-
ment or discharge from, 412
In prison, charged with crime, duty of grand
jury concerning, 838
acquitted or not indicted by reason of insan-
ity, to be removed to hospital, 83S, 841, 842
when and how to be removed from state
prison, 878
from other prisons, 878
on mesne process, &c., how discharged, (ViO, OK)
under sentence of death, warrant for execu-
tion may be delayed or respited, , . . 847
Guardian of, how appointed, ul^i, 544
powers and duties of, 544
may prosecute and defend suits against,
commenced before insanity, 050
how previous contracts in writing for con-
veyance of real estate may be enforced
by or against guardian, 575
INSOLVENCY, COURTS OF.
Courts, Jckisdiction, Officers, &c.
courts established in each county to be courts
of record, 581
have jurisdiction of insolvency in their rc-
spective counties, 5S1
of cases of partnership in county where
cither partner resides, 597
of cases transferred from commissioners and
masters in chancery, COI
to be held at shire towns at times appointed by
judge, and at other convenient places, 581
and meetings may be adjourned, and all things
done at adjournment to liave like
effect as if done at original meeting, . 581
may be adjourned by register in certain cases, 582
rules of, how made, 532
order in, how kept, 581
officers of, how appointed and paid, .... SSI, 582
proceedings of, to be matters of record, num-
bered and filed, 581
copies of records and prior proceedings filed
with register to be prima facie evidence, 581
docket to be open to public inspection, . . . 581,582
warrants, processes, and orders of, to be under
seal, how served and returnable, . . . 582
parties having business in, may designate news-
papers in which to have their notices
published, 582
counties to fiu'uish court rooms and fire-proof
rooms for records, 5S2
expenses of, to be paid out of state treasury, . . 582
Judges and registers of probate and insol-
vency to be judges and registers of, . . 581
Judge to receive applications and issue war-
rants, 582, 583, 590, 598
to approve election of assignee; may add
others, or order new election, .... 586
may require bonds of assignees, 586
to assign debtor's property, 586
may order attachments to survive, . . . 586, 587
may approve bonds, and do other acts out
of court, 581
keep order in court and punish for con-
tempt, 581
administer oaths, issue commissions, take
1010
INDEX.
INSOLVENCY — coH/m?/Cf?.
tt'^timouy, compel attcndaucc of wit-
nesses, and appoint necessary officers, 581
may make orders concerning time, place, and
manner of sale of debtor's estate, . , 587
may order money in bands of assignee to be
deposited or invested, 587
may order messenger to sell perishable proi>-
erty, 583
perishable property, to which the title is in
dispute, to be sold, 5S8
may remove assignees, and permit tlicm to
resign, 588
may commit assignees for disobeying orders, 5S9
may, by warrant, require jailer to bring
debtor, if iu prison, into court for ex-
amination, 5$0
may examine, or appoint some one to ex-
amine, debtor out of court, 5S0
may commit debtor, if he refuses to obey
order of court, 590
may order meetings to be called, 5S3, 590, 501, 5&5
may order meetings, omitted to be called
within the time prescribed bylaw, to
be subsequently called with like effect, 590
may order register to notify meetings iu cer-
tain cases when assignee neglects, , . 590
shall nppoint second and third meetings, , 590
may cite and examine persons suspected of
concealing, embezzling, or conve3ing
away property, 597
to make returns to secretary of common-
wealth, GOO
(See Judr/es of Probate and Jiisolvency.)
Register, to keep docket, make computations
of dividends, furnish certain copies to
assignees, and administer oaths, . . , 581
may adjourn court or meeting whcajud^je is
absent, or there is uo judge, 582
may certify copies of records of cases in
court, and of prior proceeiUngs filed
in his office, 5S1
fees of, for copies, 583
to make and certify list of claims proved, , 5Sj
shall receive the deposit by debtor, and all
fees of court, and account with state
treasurer quarterly, 000
not to be assignee in his county, 002
(See Jirf/isfers of Probate and Im^oh-oici/.)
Supreme judicial court to have general
s\iperiulendenCL' of, 582
may hear and determine cases from, as a
coui't of equity, in term time or vaca-
tion, 582
may make rules for, at law term, 582
IxsoLVEXCY Proceedings.
Accounts to be rendered by assignee when
certain amounts are collected, or on
order of judge, 588
at third meeting, 594
again witliin eighteen months, 595
Adjournment of courts and meeting, . . 581, 5S2
Allowance to debtor, for attendance, sup-
port of, and percentage on estate, in
certain cases, 5SM
iu case of partners and partnerships, . , . . 507
of all surplus, if any, after debts are paid, . 504
if not p:iid to debtor while living, may be
paid to his representatives, 594
Appeal, bow taken to superior court, notified,
entered, aud proceeded in by creditor
I]NrSOLVEWC'5r-r9»//»Hef7.
or assignee, in case of allowance or
disallowance of claim, 535
how, in case of allowance aud disallowance
of discharge, 592
may be waived, 592
Application by debtor, 582, 598
by creditors, 596
Assignee, to be cliosen at first meeting;
choice how made, 585
choice of, subject to approval of judge, who
may appoint additional assignees, or
order new election, 586
if not chosen by creditors, judge may ap-
point, 586
how chosen or appointed in case of vacancy, 588
in case of partnerships, to be chosen by
joint creditors, 597
person Laving received preference not to
be, nor to vote lor, assignee, 589
bond may be required of, shall be filed j
how sued, 580
failing to give bond, to be removed, .... 586
may be removed by creditors with consent
of judge, 588
by judge in certain cases, 588
may resign, 588
effect of death, resignation, or removal of, 589
to execute necessary papers to co-assignee
or successor, upon resigning or being
removed, 589
refusing to execute papers, or disobeying
order of judge, may be committed, . . 589
to give notice of appointment, and have as-
signment recorded, 580
of meetings and dividends to creditors, 587, 588
to demand and receive from messenger and
other persons ail debtor's estate, . . . 587
may cause persons suspected of concealing
property to be cited to answer ques-
tions, 597
may commence and prosecute suits, which
shall not abate by death or removal
of, and new assignee may prosecute
same, 587
may recover property or value thereon, in
case of fiaudulent preferences, . . 593, 594
avoid payments and sales made by debtor
in contemplation of insolvency, . , . 594
authority to sue proved conclusively by as-
signment, 587
powers aud duties of, respecting attach-
ments ordered to survive, .... 580, 5S7
not to allow to creditors certjiin set-ofl",
obtained within six months, 587
may, with consent of judge, settle claims by
compromise or arbitration, 583
sell perishable property, the title to which
is in dispute, and hold proceeds to
await determination of title, 588
sell real and personal estate iu his discre-
tion, or according to auy order of the
court, 587
how may sell franeliises of corporations
authorized to take toll, 598, 599
may, with consent of judge, sell outstand-
ing claims, , 595
claims sold by, may be sued m name of
purchaser, who alone shall be respon-
sible for costs, 595
to keep regular accounts, to which creditors
shall have tree access, 587
INDEX.
1011
INSOIiVEKTCY — co»^"/iMe(/.
to keep separate Jiccoimts of joint aud BCpa-
rate estates of partners, 597
money collected by, to be kept separate, or
deposited in bauk, and judge may or-
der deposit or investment tliereof, . . 5S7
may appeal to superior court from allow-
ance of claims, and proceedings there-
on, 585
from debtor's discharge and proceedings
thereon, 592
to render accounts when certain amonnta
are collected, or on order of judge, . . 5SS
at third meeting, 594
again within eighteen months, 51'5
compensation of, 588
Assignment of all debtor's estate to be made
by judge to assignee, 58G
of the estates and J'ranchises ofcoiijorations, 598
to be recorded in registry of deeds, .... 580
effect of, and what property passes by, . . . 5Sfi
conclusive evidence of assignee's authority
to sue, 587
Attachments dissolved by assignment, . . . 580
how ordered to survive, and prosecuted by
assignee forbenelit of all creditors, 580, 587
attachments, dissolved by, and how or-
dered to survive, and proceedings
thereon, 58fi, 587
■when sufficient cause for iustitnting pro-
ceedings against a debtor, 590
when against corporations, 599
Commissioners of insolvency, and masters
in chancery, to finish cases com-
menced before them, 001
fees therefor, 001
cases before them may be transferred to
courts of insolvency, in certain cases, 601
when closed, records and papers to be de-
posited in office of register of court of
insolvency, 001
Concealment of property by any person, he
may bo cited and examined under oath, 597
by debtor, punishment tlierefor, .... 59(5, 597
Corporations, proceedings by, except rail-
roads and banks, 598
against, for not dissolving attachments, and
other causes, 599
warrant to contain order requiring messen-
ger to state further that corporation
is forbidden to make contracts, . , . 598
claims may be proved at any time before
making final dividend, 598
officers of, to furnish schedule, and do other
acts, in like manner as debtor, .... 598
sale of franchises of such as are autliorized
to take tolls and proceedings there-
after, 598, 599
damages against, for land and materials
taken, Are., preferred claims, 599
discharges not to be granted to officers or
members, 599
mortgages by, not invalidated by insol-
vency pi-oceedings, 599,000
foreclosed, pending proceedings by or
against, and before choice of assignee,
may be redeemed by assignee within
sixty days, 599
proceedings to be generally like those in
case of insolvent debtors, 598
Costs and fees of court, amount of, and how
paid and acconnled lor, COO
TNBOJjV^NCY — continued.
of messenger, how returned and paid, . . . 600
of suits, when and how preferred in distri-
bution of estates, 000
costs against parties may be allowed by
court, and execution issued, 600
in cases still pending before commissioners
and masters in chancery, 601
Creditors, how may prove their claims. 583, 584, 585
liuw and when proof may be by agent, . 584, 585
how, when they have security, 584
may take oath before justices of the peace, . 585
may appeal if claims are disallowed in
whole or in part, 585
may act by attorney, 585
may have original papers used in proof of
claims by leaving copy, 585
may deliver up security, or ou leave sell
same, and prove the balance, 584
fraudulent preferences received by, void,
and property or value may be recov-
ered by assignee, 593, 594
may set off claims, if not procured within
six months, 584, 587
may assent to discharge, although allow-
anc-:- of their claims is appealed from, . 592
Debts and claims may be proved at any meet-
ing, 5a3
what cliums may be proved, 583, 5S4:
Iiow proved when creditor has security, . . 584
mutual debts to be set off, and balance
only proved or paid, 584
except certain claims procured by credi-
tors within six mouths, 587
oath to be taken on proof of claim, form of, 584
may bi? taken before justice, 585
by agent in certain cases, 584
other proof of, may be required, and debtor
and creditor examined, 585
not to be allowed unless statements on oath
are true, 584
when creditor has received preference
thereon, 585
proof of, may be postponed until after choice
of assignee, 585
creditors may act by attorney in relation to, 585
original papers used in proof of, may be
witlidrawn and copy filed, 585
when proved, list to be made and certified, . 585
what entitled to priority in distribution of
estate, 594, 595, 599
what are, and what not, affected by dis-
charge, 591, 592
proved after dividend is made, not to dis-
turb same, 595
appeal to superior court from allowance of
claim may be taken by assignee, or
from disallowance, by creditor. , . . 585
how claimed, notice of given, and entered,
and proceedings thereon, 585
may be waived, 585
Debtor, application by, for benefit of insolvent
laws, how may be made, 582
to deposit forty dollars on making applica-
tion ; disposition of the money, , . . 600
if assets are not sufficient to pay the fees,
debtor to pay them, 600
court may issue execution therefor, paya-
ble to register, 600
to furnish schedule of creditors to messen-
ger v.'ithin three days, 533
to file schedule of property at first meeting,
1012
INDEX.
INSOlj'Vn'NCY—contimied.
or within such further time as judge
may allow, 583
may amcud schedule at second meeting", . . 590
to deliver property to messenger, .... 583
to do all acts and execute all papers neces-
sary to coufirm assignment, and to
obey order of court, 500
if he refuses, ho may be committed, , , . 590
may be examined respecting claims offered
for proof, 5Sn
liable to punishment if he spends, conceals,
or disposes of property after com-
mencement of proceedings, . . . 596, 597
examination of, respectiug his estate, wlien
and how to be had. 589
when confined iu jail, 589
when sick and unable to attend, 589
if out of state when required to do any act,
may do or perform same at another
time with like efTect, 500
to take an oath before judge at second meet-
ing; form of oath, 590
when may be allowed to take oatli subse-
quently, 592
if he dies after issuing warrant, proceedings
not to be abated, 583
allowance to, for attendance, support, and
percentage, 59-1
in case of partnership, 597
if not paid in his lifetime, to be paid after-
wards to liis rupresoutatives, .... 594
to have all surplus after debts are paid, . . 594
if by accident he fails to take oath or to file
assent to discharge withm time al-
lowed, he may do so within a year, . 592
may appeal to superior court if his discharge
is refused, and proceedings thereon, . 592
if in prison at the time discharge is granted,
how released tlierefrom, 591
certain sales by, in contemplation of insol-
vency, void, 594
proceedings against, by creditors, and for
what causes may be had, 590
Discharge, when and how granted, .... 591, 592
not to be granted unless estate pays fifty per
cent., or assent of a majority of cred-
itors in number and value is filed with-
in six months, 591.'
nor in case of second insolvency, unless
assent of throe foui-ths in number and
value of creditnrs is tiled, 592
not to be granted to a debtcir a third time in-
solvent, 592
how granted, in case of partnerships, . . . 597
when refused solely because debtor, by acci-
dent, did not seasonably take oath or
obtain and file aseent of creditors, may
be granted within one year, upon no-
tice to, and with assent of, three fourths
in number and value of creditors, . , 592
ndt to be granted to officers and members of
insolvent corjjorations, 599
creditors may assent to, although an appeal
has been taken from the allowance of
their claim, 592
what conveyances, payments, acts, and neg-
lects of debtor will prevent and avoid
discharge, 593,594
appeal to superior court from allowance or
disallowance of, may be taken by as-
signee or debtor, 592
INSOLVEKTOY — continued.
how taken, notice of given, entered, and
proceeded with, 592
may be waived, 592
form and effect of, in relation to debts, . . 591
upon debtor's subsequently acquired prop-
erty, 591
upon debtor's arrest and imprisonment,
and liability thereto, 591
docs not affect debts contracted for necessa-
ries unless proved, 592
nor release partner, joint contractor, or other
person liable for same debt, 592
when set upindefenceof actions, provisions
respecting costs, 780
Dividends to l)e declared at third meeting, . . 5iH
ortler of priority therein, 594, 595
in ordering dividends, part of funds may in
certain cases be reserved for claims
which may afterwards be proved, . . 595
second, to be made within eighteen mouths, 595
further, may be nnide in certain cases, . . . 595
not to be disturbed by subsequent proof of
additional claims, 505
liow declared in case of partnerships, . . . 597
to be computed by register, 581
notice of, to be given to creditors, . , , 587, 588
may be attached by trustee process, .... 723
Examination of debtor touching his estate,
how had, 589
hoW; when debtor is in jail, 589
sick and unable to attend, 589
out of state, 589, 590
of persons suspected of having fraudulently
received, coucealed, embezzled, or con-
veyed away jiroperty, c. 597
Fees and costs of court, GOO
of messenger, fiOO
how preferred on distribution of estate, . . 000
in cases still pending before commissioners,
and masters in chancery, COl
Fraudulent preferences and sales, per-
sons receiving, not to vote for, nor be
elected, assig"nee, 588,589
not to prove claim on which preference is
taken, 585
what are such, when void, and when the
property and value of, may be recov-
ered back by assignee, 593, oW
payment of debts contracted for necessaries
to extent of twenty-five dollars, not
to lie considered such, 594
when will prevent and avoiil discbarge, . . 593
certain payments and sales by debtor to be
so treated, and may be avoided by as-
signee, 595
Homestead of debtor, how set off, .... 525, 52(i
Involuntary proceedings, 590
for what causes creditors may apply for in-
solvency jn'oceedings against debtor, 590
petitioner to deposit forty dollars, and dis-
position thereof, 000
warrant, how to issue in such cases, .... 590
proceedings may be stayed wlien debtor
has. by accident, failed to dissolve
attachment, 590
Meetings, how notified by assigiu'e, . 587, 588, 595
by register, when liable to be defeated by as-
signee's not notifying, 590
may be adjourned by judge, 581
register, when judge is absent, or there
is no judge, 582
INDEX.
1013
INSOLVENCY — conftHWfr/,
First meeting, how called and notified, . . 5&3
may be adjourned if notice has not been
given, and further notice ordered, . . 583
warrant to be returned at, and schedules
filed, 583
Second, how appointed, and when to be
held, 5U0
debtor to take oath, and may amend Bched-
ules at, 51)0
bow called and held, when not held within
time required, 590
Third, how and when to be called and held,
590, 591
discharge may be granted at, 591
how called and held when not held within
time required, 590
accounts to be settled and dividend declared,
591, 595
subsequent meetings may be had for pur-
pose of making dividends, 595
Messenger, warrant to be directed to the
sheriff or one of his deputies as mcs-
seuger, 5S2, 5S3
to give notice of first meeting according to
orders in warrant, 582, 583
to demand and receive debtor's property, , 5S3
to be furnished by debtor with a schedule of
creditors within three days, 583
may, by order of judge, sell perishable prop-
erty, 583
to return warrant and schedule of creditors
at first meeting, 5S3
fees of, and how paid, 000
Partners and partnerships, proceedings
by and against, liow commenced, 597
may be in county where either partner re-
sides, 597
assignee to be chosen by joint creditors, . . 597
joint and separate property of, to be kept and
distributed separately, 597
provisions respecting limited partnerships, 597
separate allowance to be made to each part>-
uer, 597
discharges, how granted to each partner, . 597
in other respects, proceedings to be same as
against individuals, 598
Returns of cases to be made to secretary of
commonwealth monthly, 000
Set-off of mutual demands, when allowed, 584, 587
Security held by creditor, how disposed of, . 584
Stay of and vacating proceedings, how
and when proceedings may be stayed
and vamti'd, GOO
INSOLVENT ESTATES OF PERSONS
DECEASED.
how to be applied, 496
debts entitled to preference, 490
upon representation of insolvency by execu-
tor, &c., commissioners to be appoint-
ed, 049
Commissioners to be sworn, 490
to appoint times and places for meetings, and
give notice thereof to creditors, . 490, 497
six months allowed to creditors to present
claims to, 497
to make return to probate court, 497
may examine claimant on oath, 498
may administer oaths to witnesses, &c., . . 498
to keep copartnership and individual claims
separate, 498
provision for contingent debts, 497
INSOLVENT ESTATES OP PERSONS
DECEASED — contin ual.
appeal, when taken from decision of commis-
sioners, where trial to be had, &c., . . 497
to be taken, and notice given, itc, within
thirty days of commissioners* return, 497
trial to be had but no execution to issue, . . 497
alter appeal, claims may be submitted to ar-
bitration, 498
decision of arbitrators conclusive, when ac-
cepted by the court, 49S
party prevailing upon an appeal to have
coats, 498
omitted by accident or other cause than
his own neglect, remedy for, 498
petition for, not to be sustained unless pre-
sented within two years of commis-
sioners'return, 498
allowance of, not to disturb prior divi-
dends, 498
distribution among creditors after couunissiou-
ers' return, 498
in makiug dividend, joint and separate estate to
be kept separate, 403
if whole assets are not distributed on first de-
cree, further distribution to be made, 498
actions by creditors for preferred debts, &c.,
may be brought against executors,
&c., after represcntiitious of insol-
vency, 498, 499
judgment against an executor, &c., ibr goods
attached by deceased officer, to be paid
in full, G4S
Creditors of, may appeal from decision of
commissioners and try claims at com-
mon law, 497
claims of, on such appeal, to be tried as if on
action against administrator, &c., . . 497
within what time appeal shall be claimed,
and notice thereof how given, . . , . 497
how such appeal shall be proceeded with in
court, 497
party prevailing entitled to costs, 498
remedy for, when appeal is omitted season-
ably, 49S
may waive appeal and submit claim to arbi-
tration, 498
to be paid, if claims allowed on appeal,
only from assets not before distrib-
uted, 498
provisions for, when debts are contingent,
&e., 493
after representation of insolvency, cannot
maintiun action against executors, &c.,
unless, &c., 498, 499
provisions for disposition of actions of, com-
menced before estate is represented
insolvent, 490
claims of, to be barred unless presented for
allowance, &c., according to these pro-
visions, 499
may sue after eighteen months if question
of insolvency is not determined at
that time, 499
unclaimed dividends to be distributed
among, after twenty years, 499
administration on estates of such creditors
as are entitled to receive such divi-
dends, 499, 500
if assets are sufficient, debts to be paid in
full, 499
if insufficient, to be paid ratably 499
1014
INDEX,
ESrsOLVENT ESTATES OF PERSON'S
DECEASED — ro»ti„>ift!.
adniinistrator, &c., liable only for assets in his
hands, 409
if surplus reraaius, to be distributed among
lieirs, -iW
Of foreigrners, administered upon in this state,
how distributed, 508
assets not to pay foreign creditors till resi-
dents have received just part of debts, 508
residue, after paying citizens of this state,
liow disposed of, 50S
rWSPECTORS-GENERAIi.
of butter and lard, lish, hops, leather, and pot
and pearl ashes, how appointed and.
term of office, 25S
to he sworn, &c., 258
may appoint deputies, 258
rWSPECTORS OP PRISONS.
how couslituted, and powers ;:ud duties of, 800, SO?
INSPECTORS OP STATE PRISON".
a]>p<>intnieiit, duties, A:e., of, 870,875
IN"STITUTIONS FOR SAVINGS.
provisions respecting, 316-319
(■9cfi Banls and Savings Banks.)
rNSURAJSrCE COMPANIES.
I. IxsrRAXCE CoM:Missio>"Ens.
Commissioners, appointment of, to hold office
for three years, &c., 320
to visit and examine insurance company on
request of five or more stockholders or
creditors, 320
may examine hooks and agents of foreign
companies, 320
to examine capital of insurance companies, 323
penalty on agent for neglecting to answer, 321
to calculate value of outstanding life jiolicies, 321
may summon directors, officers, and agents, 321
penalty on cUrectors, &c., for refusing to ap-
pear and testify, 32!
if of opinion that a company is insolvent, may
apply to supreme judicial court for in-
junction, 321
to furnish forms of returns to companies,
and to agents of loreig'n companies, . 321
to report violations of law to the secretary, 321
to keep a full record of their proceedings, . 321
to make annual reports to the legislature, . 321
salary of, 321
to submit annually to the legislature a re-
port, in print, of conduct and condition
of the several loan fund associations, 335
and in caseof violation of law, to present the
facts to the attorney general, .ie., . . 335
II. General Provisions.
incorporatedintliis state, general powers of, . . 321
first meeting of, how called, 322
to give notice to secretary of state of acceptance
ofeharter^vithin one year from itsdate, 322
matters to be acted upon to be staled in call of
meeting, 322
may adopt by-laws not repugnant to law, . . , 322
power of, to make by-laws as to venue and lim-
itation of actions, restricted, 322
secretary and treasurer of, to give bond, .... 322
to have their olRee in the city or town specified
in cliarter, 322
agencies in otlier iilaces, signs, cards, &c.,
exhibited by, to specify city or town
of company, 322
INSURAJJCE COMPAlSriES — roHf/Hwf^/.
liable to be taxed, 322
directors, wlien required to furnish legislature
or roniniissioncrs ^vith statement of
a^nirs, 322
such statement to be signed by the president
and secretary, and sworn to, 322
funds of, how to be invested, 322
investing officer of nmtiial marine, mutual fire,
or mutual life insurance, not to bor-
row its funds, or be liable for money
borrowed of company, 322
not to buy or sell goods, except those insured
by company, itc , 322
to conduct business in corporate name only, . . 322
not to issue policies for a term exceeding seven
years, 322
in this state, to make annual statement to com-
missioners, 323
annual statement to be sworn to by the presi-
dent and secretary, 323
penalty for neglecting, or making false, returns, 323
forms of returns, 332-33-i
III. Companies haying Specific Capital.
Directors, how chosen, 323
to be not less than five, and residents of this
state, 323
term of office, 323
not less than four to constitute a quorum, . 323
vacancies in office may be filled by, or by a
meeting of the stockholders called for
the purpose, 323
may call special meetings of stockholders, . 323
president, secretary, and other officers to be
chosen by, 323
president to be chosen from board of, . . . 323
President and other officers, how chosen, . . 323
t-o be chosen from board of directors, . . . 323
and secretary to be sworn annually, .... 323
to preside at all meetings, 323
pro tempore, may be chosen, 323
to sign policies, 324
in absence of, two directors may sign poli-
cies, 324
Secretary, how chosen, 323
to keep a record of votes, a list of the stock-
holders, A'c, 323
to keep a record of all transfers of shares, . 323
to sign policies, 324
in absence of, secretary pro tempore may
sign, 324
special meetings of stockholders, how
called, 323
capital stuck, unless otherwise specially
provided, to be pjiid in cash, &c., . . . 323
certificates of full shares or policies not to be
issued until capital is paid in, ... . 323
policies not to be issued until authorized by
commissioners, 323
capital to be examined by commissioners, . 323
directors to make oath in relation to money
paid in, 323
stock, how to be invested, 323, 324
restrictions as to loan of, 324
not to own more tban oue fourth of the cap-
ital of any one bank, 324
not more than one tenth of capital to be '
loaned on stocks and bonds of one rail-
road, 324
nor more than one fifth on all railroad prop-
erty, 324
INDEX.
1015
INStTBAlSrCE COMPANIES ~ continued.
not more thau oiio half to be loaucd on mort-
j^agos of real est^itc, 324
not more than one tenth on a single mort-
gage, 324
penalty on directors for unlawful invest-
ment of, 324
companies heretofore cliartered not com-
pcllcd to change investment of, . . , 324
may insure vessels, freight, &c., against
perils of the sea, 324
dwelling-houses and other buildings, and
personal property against loss by fire, 324
not to take on one risk more than one tenth
of amount of capital, A'c., 324
liability of directors for so doing, 324
policifs, how signed, 324
risks to bo reduced on reduction of capital, 324
liability of president and iliret-tors for taking
risk when losses equal the capital, . . 324
of stockholders for unpaid instalments
when losses lessen the capital, .... 324
dividends, how made up, 324
annual statement, when and how to be
made by directors, 324
form of return, 332,333
IV. Mutual Marine and Mutual Fihe axd
Marine Companies.
agreement to be signed by members, 324
who to be members, 325
subscriptions to be made, and approved by
commissioners, before policies are is-
sued, .325
how held, used, invested, and cancelled, . 325
not to hold on single risk more than one
tenth of net funds, 324
if risk exceeds one tenth, on open policies,
reinsurance to be obtained, 325
liability of president and directors for over-
insurance, 325
mutual marine companies in operation one
year to make annual statement, &c., . 325
and dividend may be declared on premiums,
&c., and certificates issued, .... 324-32G
forms of returns, , 333
Certificates, how transferable, &c., 326
six per cent, interest may be paid on, , , . 326
how to be redeemed, 32C
debt due from persons entitled to, may be de-
ducted therefrom, 326
persons entitled to, not answerable except
ft»r premium notes, 320
Directors, how chosen, 324, 326
to be not less than seven, and citizens of this
stJite, 324, 326
to be chosen by members, 324, 326
members may vote for, by proxy, . . . 334, 526
to choose president, secretary, and treas-
urer, 324, 326
not less than five to constitute a quorum, 324, 326
may fill vacancies in any office until new
election, 324, 326
when may call special meetings, .... 324, 326
liability of, for over-insurance, 325
to require president to make monthly state-
ment of assets and liabilities, .... 325
8uch statement to be recorded, 325
to call special meetings on written ftp]>lica-
tion of the owners of one fifth of cap-
ital stock, 323
or of twenty stockholders, setting forth
the purposes of the meeting, 323
XWSUKAK'CE COMP ANTES — co?i(in«crf.
to make oath that money has been paid in
by stockholders towards payment of
shares, 323
in absence of president, two to sign policies, 324
liability of, for taking risk contrary to law, 324
to make annual statement of dividends, . . 325
President, how chosen, 324,326
to be sworn annually, 324, 326
Secretary, how chosen, 324, 326
to be sworn annually, 324,320
to keep records of meetings of corporation
and directors, and their votes, .... 326
to record all policies and transfers, .... 326
record of, to be open at all times for inspec-
tion, 326
Treasurer, how chosen, 324, 326
to be sworn, &c., 326
oath of ofRcers to be recorded in books of
company, 326
Mutual and Stock and Mutual Fire Companies.
to elect annually not less thau seven direc-
tors, citizens of this state, 326
after the first election, directors to be mem-
bers of tlic company, 326
persons insured to be members, 326
members not to be allowed more than five
votes in person, 326
may vote by proxies, dated and executed
within six months, and recorded
within three days of meeting, .... 326
no person allowed, by proxy or otherwise, to
cast more than twenty votes, . . , . 326
no paid oflicer to vote as proxy for absent
members, 326
Members, at expiration of policy, to have
share in profits, 327
subject to assessment for losses aud ex-
penses, 327
extentof liability of, 327
persons liable to assessment, to be con-
sidered members, 328
not to be assessed, after two years from ex-
piration, &c., of policy, 328
entitled to proportion of profits of class
insured in, 328
may inspect statement of condition, of
company made when assessment is
voted, 328
Bpecial meetings, directors to call, on re-
quest of twenty members, 320
may be called by directors when they think
proper, 327
to be called by directors, on application, &c., 327
Assessments, when and how to be made, . . 327
directors liable for neglect to make, .... 327
liability of members to, 327
to be made upon class to which policy be-
longs, 328
record of vote for making, to be kept, . , . 328
when ordered, statement of amount to be
raised, aud losses, &c., to be made, . 328
statement for each class of property to be
made, 328
members may inspect and take a copy of
such statement, 328
persons liable to, to be considered members, 328
not to be collected, until statement and
record are made, 328
President, how chosen, 326
to be sworn annually, 326
Treasurer, how chosen, 326
1016
INBEX.
OTSUKAJSrCE COMFANlES — contimied.
to bcs\voru,A:i\, 320
ne^lectingto coUfCt agsossment, liability of, 327
m:iy repay himself out of money of the
company, .1-7
Secretary, how choseu, Ac, ;J20
to be sworn, &c., ^20
to record all policies and transfers, .... 320
record to be open at all times for iu-
spection, 320
to keep a true list of stockholders, &c., . . 327
oath of officers to be recorded in books of com-
pany, 320
creditor, remedy of against directors, 327
expenses not applicable to either class of prop-
erty insured, how to be assessed, . . 32S
Directors, how chosen, 320, 327
to be not less than seven, and citizens of
this state, 326
after iirst mcetin<;, to be members of the
company. 32G
to choose president, secretary, and treas-
urer, 32G
not less than five to constitute a quorum, . 32G
majority present to decide questions, . . . 320
may fill vacancies in any office until now
election, 320
may call special mcetiui^s in certain cases,
32(;, 327
of a corporation, becoming' members, may
authorize one or more of its stockhold-
ers to represent the same, &c., .... 327
to make assessments, 327
when claims exceed the funds, to assess in
proportion to premium and deposit. . 327
liable for neglect to pay, or assess williin
thirty days after rendition of judg"-
racnt ag'ainst company, 327
one director, paying execution, to have
remedy against the rest, 327
may divide property into not exceeding
four classes, 328
not to insure, on one risk, a greater amount
than they intend to ret;uu, nor with
view of reinsuring, 328
not to issue policies on any other than mutual
plan, excepting stock and mutual
companies, 328
stock and mutual companies to have guarantee
capital, 32S
guarantee capital, how to be invested, . 323,32^
business to be kept separate, 329
returns to commissioners, how to be made,
320, 332, 333
forms of returns, 333, 334
not to insure on one risk exceeding one tenth
of capital, &c., 329
mutual companies, w"here mny insure, 329
certain, not to issue policies before two hun-
dred and fifty thousand dollars is sub-
scribed to be insured, 329
policies and deposit notes to be of the same
date, 329
notes not to exceed double the amount of
cash premium, 320
trust property may be insured by, 329
trustee not liable in his individual capacity, 329
Life Insurance Cosipaxies.
not to go into operation until guarantee
capital of one hundred thousand dol-
lars is paid in and invested, 329
nsrSITRAlSrCE COUV A^UES — continved.
directors, first board ol", how chosen, . . . 320
subsequent boards, how chosen, 320
stockholders to be entitled to annual divi-
dends not exceeding seven percent, . 329
one quarter of estimated surplus fund, &c.,
to be appropriated for redemption of
guarantee stock, 329
residue of surplus fund to be divided once
in five years, among the assured, ex-
cept, &c., 329
to pay a certain share of profits to Massachu-
setts Hospital Life Insurance Co., . 330
policies for benefit of certdn persons, to
whom to inure, 330
if premiums are paid with intent to defraud
creditors, an amount equal thereto to
inure to the benefit of creditors, . . . 330
securities required by laws of other states
may be deposited with state treasurer, 330
compimy depositing such securities to re-
ceive income, &c., 330
to pay into state treasury one cent on each
one thousand dollars insured, . , , . 330
not to issue policies on fire or marine risks, 330
form of return, 334
Foreign Companies.
Foreign applies to all companies not incorpo-
rated in this commonwealth, 332
stock companies not to insure in this state, un-
less capital stock amounts to one hun-
dred thousand dollars, &c., ...... 330
nor unless restricted from taking on one
risk amount exceeding one tenth of
its unimpaired capital, 330
Mutual companies not to insure in this
state, without one hundred thousand
dollars cash, &c., and one hundred
thousand dollars deposit notes, . . . 330
to satisfy commissioners of amount of
funds, &c., 330
General agent to bo appointed in this state,
on whom process may be served, . . 331
copy of appointment to bo filed in office of
commissioners, 331
agency to be continued while any liability
exists in this state, 331
scrWce of process upon, to be deemed ser-
vice upon principal, 331
general and other agent to give bond, . . . 331
before making insurance, to deposit copy of
charter and statement, &e., with the
commissioners, 331
to make annual statement to commission-
ers, and publish the same, 331
Agent to exhibit name of state on sign, and
l>rint name, &c., on policies, &c., . . 332
not to act until he has complied with re-
quirements of law, 332
penalty on, for acting as, contrary to law, . 332
penalty on, for insuring, contrary to law, . 332
taxes, penalties, &c., in certain cases, 331
contracts of insurance made by, without comply-
ing with the requisitions of law, to bo
valid, but agents liable, to penalty, 331, 332
neglecting to appoint a general agent, not to re-
cover premiums or assessments, . . , 331
chartered out of United States, to make returns
to commi8sioi\ers as companies in
this state, 332
penalty on agent of such companies 332
INDEX.
1017
TNSTTRETt.
casting away vessel with intent to iiyurc in-
surer, how punished 801,805
fitting out vessels with intent, &e., 805
making- falac invoiees to defraud, 805
making- or procuring false protest to defraud, . 805
INTELLIGENCE OFFICES.
lieease to keep, may be granted by selectmen,
&c., 457
fee for license, -157
prualty for keeping, &c., without license, ... 457
INTEREST.
Of money, to be at rate of six per cent, a year, 292
when more than six per cent, is taken con-
tract not void, but threefold unlawful
interest forfeited, 292
and defendant to recover full costs in action
on such contract, 292
if more than six per cent, is paid, threefold
unlawful interest may be recovered
back, 292
action for such recovery to be brought
witliin two years, 292
to be allowed on awards, reports, verdicts,
and judgments, 685
to be collected on warrants and executions
for payment of money, 685
may be allowed by banks for money depos-
ited by assignees of insolvent debt-
ors, 307, 587
In suits, &c., not to disqualify persons from
being witnesses in person or by dep-
osition, 673
judges, appraisers, &c., from acting, when
their towns are interested, CIS
jurors, by reason of being inhabitants of
Boston, G18
nor in inrlictments, &c., for recovery of
f trffiturcs by re.ison of paying taxes
in town interested, 683
INTERLOCUTORY ORDERS.
In civil cases, may be made in term time or
vacation in any county, allowing
amendments before trial, supplemen-
tal answers, Ac., COO
court to make rules respecting times and
places of motions for, &c., COO
In equity cases, made by a single judge, may
be appealed from, 5G0
such appeal to transfer question only, not
the cAse, 5G0
although not appealed from, open to revision
on hearing of appeal from final decree, 560
affecting merits of controversy, may be re-
ported for consideration of full court, 500
INTERROGATORIES.
to adverse party in a ci\il suit may be filed for
discovery of facts and documents, . . 659
by plaintiff" after entry of action, 659
by defendant after answer or plea, 659
to have annexed thereto affidavit of party or his
attorney, 059
filing of, not to delay trial except by order of
court, 061
may, by leave of court, bo filed during trial to
be answered forthwith, 660,061
may be put to any officer of a corporation which
is a party to the suit, 659
Answers to be made in ten days, unless the
time is extended by court, 659
to be in writing, signed and sworn to, • . . 659
128
INTERROGATORIES — continued.
to be full, and to reply to each interroga-
tory separately, but inay contain mat-
ter relevant to issue, 659
need not disclose matters whicli may tend
to criminate the party answering, . . 659
need not disclose title to property not mate-
rial to the issue, 659
nor the names of liis witnesses, 659
irrelevant matter in, to be expunged, . . , 659
imperfect, court may order to be made more
full, 659
costs in such cases, 659, 660
if a party refuse to award, expunge, or an-
swer fully, he may, by order of court;,
be nonsuited or defaulted, 660
may state that part of book, voucher, or
writing called for is irrelevant, and
the same may be sealed up, and not in-
epected except by order of court, . . 659
may be read as evidence by party interro-
gating, 663
party interrogated may require those upon
same subject matter to be read, if any, 662
cannot avail liimself of his answers nor
of the fact that he has been examined,
if no part of answers be read, .... 602
Before justices of the peace and police
court, how and when to be filed and
answered, 663
In trustee process, 722, 729
INTOXICATING LIQUOR. {See Liquor.)
INTRUSION. ( .SV '■ Infurm.itlon of Intnision.)
remedy against parties unlawfully entering, or
intruding upon, or holding lands of
commonwealth, 717-719
or lands hold by trustees and others for In-
dians, 719
INVENTORIES.
Of estates of persons deceased, to be re-
turned by administrator, &c., wthin
three months, 48S
when need not be returned by executor, who
is residuary legatee, 48S
property comprised in, by whom io be ap-
praised, 488, 488
what articles to be omitted from, 489
Of estate of wards, to be taken, returned, &c.,
by guariUau, as required by adminis-
trators, 545
Of trust estates, when required, &c., . . 500,501
INVOICES.
making false, to defraud insured, 805
IPS"WICH.
land on beach in, ceded to United States for
lighthouse, 45
ISSUE.
how construed, 51
In suits at law, when to be deemed joined, . 057
of fact, when judgment on, ag.ainst defend-
ant in plea of abatement, final, .... 658
of law, how niised by demurrer, 655
how, by replications, A-e., 656, 057
joined in superior court not to be waived in
supreme court upon appeal, Ac, . . . 5!)3
In criminal cases, how to be tried, 840
{See General Issue^ Pleading.)
ISSUING.
or signing with intent to issue certificates of
stock.. tc, beyond amount authorized,
how punished, 801
1018
INDEX.
JAILER.
to be appointed by sheriff, SCO
to coutiuue iu ofRcc, and retain charge of jails
and prisoners, after sheriff's death, . 8G1
after sheriffs death, may be removed, and
another appointed, by governor, to
remain in office till a sheriff is ap-
pointed, 801
when appointed by governor, shall give bond, , 801
exempted from military duty, 93
not to pay rent for occupation of dwelliug-housc
provided for him by the county, . . . 800
shall not make contracts for supporting luna-
tics in county building, ^\ithout ap-
probation of commissioners, 412
shall not furnish strong liquors to prisoners, . 803
on what conditions shall receive and hold prin-
cipal surrendered by bail, . . 043, 044, 045
not required to detain prisoners on civil pro-
cess who claim support as paupers,
unless pay for their support be ad-
vanced or secured, 038
when may discharge debtors, &c., if pay, &c.,
be not advanced, &c., 038
duty of, as to bodies of those who die in prison, 801
shall tUseharge prisoners when their commit-
ment is superseded by order of magis-
trate, 834
to keep calendar of prisoners, 800
penalty for not keeping, 800
to present list of prisoners to superior court, at
criminal term, for inspection, .... 80S
punishment of, for wilful refusal to receive
prisoner lawfully committed, .... 813
for voluntarily suffering prisoner to escape, . . 813
for negligently suffering prisoner to escape, . . 813
may discharge persons committed as fugitives
from justice, if charges for support
are not paid, 855
complainant to pay such charges, 855
fees of, in the county of Suffolk, 780
duties of, respecting poor debtor in prison or on
bail, when judgment recovered against
him and he gives bond, &c., 040
fees of, in such cases, C41, 042
JAILS.
to be provided in every county, at county ex-
pense, except in Suffolk, 144
in Suffolk, at expense of city of Boston, . . 144
to be erected and repaired by county commis-
sioners, except in Suffolk and Nan-
tucket 145
in Nantucket, by selectmen, 148
in Suffolk, by aldermeu, 148
to be under charge of slieriffs, and kept by them
or their deputy jailer, 857,800
officers of, exempted from military duty, ... 93
when to be used as, and how yards of, fitted for
houses of correction, 858
shall be used for detention, A-c, of what persons, 857
.of persons charged with offences and committed
for trial, 857
committed as witnesses, 857
committed for any cause authorized by law, ^7
committed, &c., under authority of the
United States, except, &c., .... 741,857
JAILS — continued.
under sentence, 857
prisoners in, may be furnished with employ-
ment, 858
but shall i_ot be required to labor, 858
with infectious diseases, may be removed to
hospital, &c., by order of board of
Iiealth, 101
report of removal to be made to court order-
ing commitment, 101
such removal not an escape, 101
paupers discharged from, to be removed to state
almshouses, in certain cases, . . . 401,402
if convict is too sick to be removed, how pro-
vided for, 402
regulations of, as to prisoners sentenced to soli-
tary imprisonment and hard labor, . . 802
when more than one in same county, sheriff
may remove prisoners from one to
another ; for what purposes, 857
particular provisions for keeping in clean and
h'ealthfnl condition, 801, 602
how to be visited and examined by iuspcrtors
of, 860
wilful injury to, or to furniture, &c., by prison-
ers, how puuisheil, and what dama-
ges recoverable for, 802, 863
if prisoner escape by reason of insufficiency of,
county must reimburse the sherift', . . 858
(See Houses of Correction.)
JE'WELRY.
not to be sold by pcdlers, 282
JOINT CONTRACTORS.
a new promise, &c., by one, not to afftjct the
others, 770
in actions against, when some are liable and oth-
ers not, how judgment is to be en-
tered, 770
when one dies, his estate to be liable as if the
contract was joint and several, .... 404
judgment recovered against one or more in
certain cases, not to prevent action
against other, &C., 047
JOINT DEFENDANTS.
two or more making same defence may answer
jointly, 050
how may be made parties upon amendment, af-
ter action brought, 057, 058
judgment to be entered against such as are de-
faulted or found liable, although not
jointly liable, Os,')
costs in sncli cases, 0>5
when part of, are out of state, or not served
with proce-ss, how action to proceed
and judgment entered, 040,047
JOINT STOCK COMPANIES.
bonds, (tc, of, negotiable, 203
{See Corporations.)
JOINT TENANTS.
how constituted by conveyance or devise, . 406, 407
lands of, liow taken in execution and with what
effect, 517,513
suits between, may be brought in supreme court
in equity, and receivers appointed, . . 559
may divide lands by writ or petition for parti-
tion, . . ! 008
INDEX.
1019
JOrWT T'EN ANTS — continued.
liability of, for committing waste without notice
to other co-t*-'uants, 709
for committiug waste during pendency of
proceedings for partition, 709
may sue separately, or all or any two may join
in a writ of entry to recover lands, . . G92
actions against, wlien part arc out of state,
how conducted and judgment ren-
dered, ... 617
JOENrTTJKE.
in order to bar dower, to consist of freehold es-
tate for wife's life, 470
and to take effect immediately on death of hus-
band, 470
wife's assent to, how to be expressed, 470
when maybe waived aud dower claimed, . , . . 470
upon evietiou from lands so held, widow may be
endowed anew, 470
JOURNALS.
of senate aud house of representatives, iudexcs
and duplicate journals to bo made by
clerks, 4S
files, papers, ic., to be in custody of the
respective clerks, 49
certified copies to be evidence, 49
JUDGES.
of courts of record, cxemjited from military
duty, 93
of the supreme jncUeial court, to hold office
during good behavior, and have sala-
ries established by staudiug laws, . 17, 25
not to exercise legislative and executive
powers, 17
to be appointed by governor with advice of
council, 24
tenure of office of, 27
may be removed by governor and council,
upon address of legislature, 27
not to be counsel orattoruey, in cases previ-
ously determined by them, . . . Glo, 016
judges and commissioners of the United States
not to hold judicial office in this state,
except justice of the peace, 742
not disqualified from acting by reason of being
an inhabitant of nay city or town in-
terested, 618
what, exempt from serving as jurors, . , 679
{See Supreme Judicial Court, Superior Court.,
Probate Courts, Courts of Insolvenaj, Po-
lice Courts, Judges of Probate and Iiisol-
rency.)
JUDGES OF PROBATE AISTD LNSOL-
VENCT.
one in each county, how appointed, and tenure
of office, 24,27,601
to take oaths prescribed by constitution, . 29, 33, GOl
adiUtional oaths to be filed in probate office, 001
may interchange services or perform each
other's duties, 602
when a judge is absent, interested, or unable to
perform his duties, or there is a va-
cancy, register to procure attendance
of some other judge, 602
record, how to be made, and business, how
to be done in such case, 602
not to be retained or employed as counsel in
certain cases, 602
not to hold certain other offices, 30, 33
exempted from military duty, 93
from serving as jurors, 679
to bo judges of the probate courts, 574
JUDGES OP PROBATE, &c. — co»fi»mc(^
to be judges of courts of insolvency, 581
may, when justice of the peace, with another
justice, take depositions to perpetuate
testimony, 676
Salaries of, 603
not to receive fees or compensation for attend-
ing courts iu other counties, nor for
• any other official service, except in
cases expressly provided for, .... 604
(See Probate Courts, Insolvency,')
JUDGMENT.
In Civil Actions.
to be entered as of last day of term, unless oth-
erwise expressly ordered by coiui;, . . 685
may, by order of court, be entered in four days
after defaidt, 685
day of entry to be noted by clerk, when made
before end of terra, 685
in actions continued nisi in supreme court, and
determined before next term, may be
entered as of the last term, 557
clerk to note on docket time of receiving or-
der for such entry, 557
when so entered for plmntiff, security by bail
or otherwise to be held from that time, 557
may, in any case, in discretion of court, be en-
tered as of any day of former tenn, . oi^r
may be entered as of term when verdict was
rendered, when a motion for new trial
is overruled, 685
how entered in actions in which defendant files
demands in set-ofl*, 671
against such of several defendants as arc de-
faulted, or found liable in action of
contract, 685
for costs in such cases when part are found lia-
ble and part are defaulted, 085
in actions for breach of bonds, contracts, and
agreements with penalties, .... 685, 68*i
on forfeited recognizances in criminal cases, 835
against absent defendant, 605, Ol- 1
such as are served \vith process when there
are several defendants, 647
executors and administrators who prose-
cute or defend, 018,651,652
estate of deceased, when executors or admin-
istrators do not appear, G4.s
not to be rendered after exceptions arc taken
unless they are adjudged frivolous, . 507
may be awarded on default, by court, or on mo-
tion of either party amount may be
assessed by jury, 6tyj
on damages assessed by jury or clerk in certain
cases, 68.)
to inchide interest on awards, verdicts, &c., . . 68.")
for payment of money to bear interest, 68.J
when rendered inalocal action, ina wrong ven-
ue, how executed, 680
aiTcst of, not to be for any cause existing
before verdict, unless it affects jurisdic-
tion of court, 662
defects of form in record may be amended after
judgment, C^,-;
unsatisfied, after time for taking out execution,
creditor may have scire facias, or action
of contract thereon, 0S;i
after discharge, in certain cases, of poor debtor
committed thereon, to remain in
force, 637,6'";-
obtained by default, if an action is brought
thereon witliin six years, defendant
1020
INDEX.
JUDQ-MENT— continued.
may set up same defence as upon re-
view, GG3
in writs of entry, how entered for seisin, or
for rents and profits, or improve-
ments, when awarded, 094
for redemption, and foreclosure, of mort-
gages 712,717
in trustee process, 7*24, 725
in favor of state, on information for intru-
sion, to operate to give seisin with-
out writ of seisin, 71S
when to be considered as rendered in cases where
there is an appeal from taxation of
costs, 782
of courts of record, suits on, limited to twenty
years, 779
presumed to be paid after lapse of twenty
years, 779
Ix Criminal Cases.
where no punishment is provided, court to
award sentence according to use and
practice, 844
how entered, &c., against corporations, .... 847
other provisions respecting sentence and exe-
cuting judgment, &14-S47
JUGGLERS.
how to be arrested and punished, 820, 821
JULY FOIXRTH.
legislature not to sit, and public offices not to
be opened on, 49
courts not to be opened on, except for certain
purposes, G17, G18
bills of exchange maturing on, when payable, . 293
JUNK.
provisions respecting dealing in, 457, 458
JURISDICTION.
of the commonwealth, extends" to all places
within its boundaries, 43
subject to right of concurrent jurisdiction of
United States, in certain jdaces,- . 43, 44, 45
of counties separated by water, when concur-
rent, 43
of court not to be affected by defects of form in
process, unless availed of before an-
swer to merits, 002
not affected by laws relating to pleading and
practice, GG2
of offences committed within one hundred rods
of boundary line of counties may be in
either, S38
of offences on the sea, within one league of the
shore, in the adjacent county, .... S3S
where mortal injury is inflicted in one county,
and death ensues therefrom in another, 838
where mortal injury is done on the high seas, or
on land, within or without the state,
and death ensues therefrom in any
county, offence to be prosecuted wliero
death happens, 838, 839
in capital cases and proceedings, 839
of Middlesex and Suffolk counties, common
over part of Charles River, . . . . 144,145
JURORS.
General Provisions.
who liable to be drawn and who exempted, , 079, 680
not required to setve oftener than once in three
years, 680
except in Dukes and Nantucket, where they
may be required to serve once in two
years, 680
JURORS — continued.
and except in cases before justices of the
peace, and police courts, 080
not exempted from serving in any other court
by reason of having served before a
justice of tlie peace or police court, . . G80
returned for superior court for criminal business
in Suffolk, to serve three terms, . . . 081
in cases before justices of the peace and police
courts, wlien may be required, . . *. . GOO
not required to serve before justices of the
peace and police courts more than
fourteen days at one time, nor more
than twenty-four days in the year, . . 080
may be returned from bystanders, or the county
at large by order of court, when panel
is reduced, G82
such jurors shall be returned by sheriff, and shall
be such persons as are liable to be
drawn as jurors, 0S2
when so returned, there must be on the jury
seven jurors who were originally
drawn and summoned, GS2
shall be examined on oath by court, on motion
of either party to suit, as to their rela-
tion to X\\G parties. Interest or opinion
formed in the case, 083
objection to, may be supported by other evi-
dence, G&3
not standing indifferent, to be set aside, and
others substituted, GS3
not disqualified by reason of interest as inhabit-
ants of Boston, CIS
on account of liability to pay taxes in any
county, city, or town, in actions, &c.,
for forfeitures, 083
objections to, not to be made after trial, if
known before, GS3
irregularity in writ of venire, or in drawing,
summoning, or empanelling jurors,
not to affect verdicts, in certain cases, 683
gratuities to, or treats of, during term of
court, by party to a suit, cause for
new trial, 683
Penalty on persons drawn and summoned as
jurors, but fjiiling to attend, 683
on officers and other persons neglecting
their duty in relation to jurors, . . . 083
how imposed, in case of jurors required to
serve on any other occasion than be-
fore the courts or justices of the
peace, G83, 684
on city or town officers, for fraud in rela-
tion to jury box, or in drawing or re-
turning jurors, 684
for corrupting jurors, 813
on jurors, for accepting bribes, 813
List and Box.
list of, in towns, to be prepared by selectmen
once every year, 680
to include not loss than one for every one
hundred inhabitants, nor more than
one for every sixty, except in Dukes
county, G80
in Dukes county, it may include one for
every thirty inhabitants, GSO
to be posted in public places at least ten
days, and tlien laid before to^vn, . , . 680
town may alter, by adding or taking out
names, 680
names of jurors to be written on separate
INDEX.
1021
JUROBS— contiiiwd.
ballots, aud, placed in a box, to bo
kept by town ok-rk, GSO
names of persons convicted of scandalous
crimes, or guilty of gross immoral-
ity, to be withdrawn from box, . . . 6S0
upon every renewal, the indorsements of
the drafts of rdl persons returned
within three years, to be transferred
to the new ballots, GSl
penalty on city and town officers for fraud
m relation to, CS4
In cities, list to be prepared and posted by
mayor and aldermen, and submitted
to common council, 6S2
common council may revise list in like man-
ner as towns, 6S2
Venires.
Tcnircs for jurors to be Issued by clerks of the
courts, before each term, except cer-
tain terms of superior court, for crim-
inal business, iu Suffolk, GSO
to be issued at such other times, and served
and returned as the courts order, GSO, GSl
to be so issued as to require such numbers
from dilTerent towns as to equalize
duty of serving;, OSl
to be delivered to sherlir, and by Iiini trans-
mitted to constables, who shall serve
same without delay on selectmen and
town clerk, 081
how served in cities, GS2
irregularities in, not to affect verdicts in cer-
tain cases, 083
may be issued by order of superior court,
in term time or vacation, to procure
attendance of jurors in Dukes county
from any town iu the couuty, to serve
in cases in which any towns arc inter-
ested, G81
Draaving axd SLr.M:\roNixG.
to be selected, when required iu any case, (ex-
cept upon inquests, and proceed iiiga
for the commitment of insane per-
sons,) by drawing ballots from the
jury box, GSl
when to be drawn, town clerk and selectmen to
attend at clerk's office, and bow draw-
ing shall be conducted, GSl
name of any person drawn, who is exempt, or
unable to attend, by reason of sick-
ness or absence, or who has served
within three years, to be returned to
box, GSl
date of the draft of persons returned to be in-
dorsed on ballots, fiSl
may be drawu in open town meeting, if town
so votes, 081
if tovni has so voted, selectmen to call town
meeting when a venire is served upon
them, GSl
all meetings for drawing jurors shall be not
less than seven, nor more than
twenty-one days before they are re-
quired to attend, GSl, 082
to be summoned by constable, bow, GS2
how drawn in cities, 082
how returned from the bystanders, or the
county at large, when panel is re-
duced by challenge or otherwise, , , 082
86
JURORS —continued.
irregularities not to affect verdicts in certain
cases, 683
penalty on city and town officers for fnaul iu
relation to, 084
Empaxellinc.
clerk of court to prepare alphabetical list of ju-
rors returned, 0S2
first twelve on list to be sworn and empanelled
as first jury, 082
second twelve to be sworn and enipauelled as
second jury, 082
supernumeraries may be placed on either jury
when others are absent, 082
may be transferred from one jury to the other
as convenience requires, 082
after being empanelled, to elect foreman by bal-
lot, 682
riew foreman to be chosen in like manner, when
former is absent, 682
above provisions not to apply to juries in crim-
inal cases, . . . ; 082
In Criminal Cases.
Grand jurors, bow drawn, summoned, and
empanelled, &c., ,s:J7, 838
{See Gravd Jurors.)
Trial jurors to be called, sworn, and empan-
elled anew for trial of each case, . . . 682
foreman shall be appointed by court or by
jury, when they retire to consider of
their verfUct, 682
irregidarities not to affect verdict, in ccr-
t:nn cases, '. 083
list of, to be given to persons indicted for
crime punishable by death, or state
prison for life, 839
provisions as to challenging, 841
what opinions disqualify for trying capital
cases, 841
form of oath of, 841
what jurors may affirm, 841
may decide the law and the fact, 842
(-See General Provision s^ above.)
Coroner's Inquest.
duty of, while serving on inquest, ....», 8i9, 850
penalty, when summoned on coroner's inquest,
for not attending, 848
not required to serve oftenerthan once in twelve
months, 848
Before Justices of the Peace.
how drawn, summoned, &c., OOG, 080, 681
JURY.
right of trial by, 15, 10, 533
in criminal cases, may decide the law and the
fact,' 842
courts shall not charge as to matters of fact, . . 560
when, after deliberation, they return into court
without agreeing, they may be in-
structed, and sent out agiun, 083
shall not be so sent out more than once with-
out their consent, unless they ask ex-
planation of law, 683
may be taken to view premises in certain cases,
and on what terms, 683
may, by order of court, assess damages upon
default, 685
to revise proceedings of county commissioners
in laying out, &c., highways, when
may be had, 235
1022
INDEX.
JUE-Y — continued.
powers of, in such cases, 235-237
warrant for, 235, 23G
how and whence summoned, 23G
penalty for not serving' ou, 230
if not full, talesmen may be returned, . . . 23G
to be sworn, 236
to view premises, upon request, &c., hear
c\*idenct, sign verdict, &c., . . . . 236,237
verdict, when and how returned, &c., . . . 237
may be set aside by superior court, .... 237
if accepted and recorded, to be final, . . . 237
to determine damages occasioned by repairing
highways, 247
to determine question of insanity in certain
cases, 408, 412
in case of builthngs, &c-, adjudged nuisances, 4&c., 453
in cases concerning use, &c., of steam engines,
&c., (459
to fissess damages to land owners caused by tel-
egraph companies, 373
to try questions of fact in cases of seizing, &c.,
forfeited goods, 773
in complaints for flowage, 755, 75G
in proceedings to enforce mechanics' lien, either
party may have, 703, 7G4
or court may order, 7G3
trial by, in civil actions, may be waived, and
trial had before court, GGl
in such case, exception may be taken, new
trial granted, and review had, as in
other cases, GOl
in cases before justices of peace, how had, . GOG
summoning jurors in such cases, and how long
required to serve, fi^>0, GSl
JtrSTICES OP THE PEACE AIJD QUO-
HUM.
may discharge poor debtors arrested on mesne
proL^ess and execution, G3j
HKiy approvf b;ul bonds, 642
JUSTICES OF THE. PEACE.
General Provisions.
how appointed, 24
tt;nure of office, 27
exempt from liability to watch, 174
m.ay is^e all writs and processes necessary to
carry into etfeet powers granted, and
may frame forms therefor where none
such exist, 610
may grant summonses to witnesses in criminal
cases, on request of attorney general
or person accused, 610
may administer oaths, 610
punish persons interrupting their proceed-
ings, or being in contempt of their au-
thority, 6IC
must keep records of their proceedings, civil
and criminal, 610
may adjourn their courts, GIO
not to commence nor be concerned in the insti-
tution of civil actions before them-
selves, 610
not to issue process, &c., except to summon
witnesses, while being commissioner
of the United States courts, 742
shall not be retained as counsel in any case
commenced before, or determined by
them, and shall not try actions com-
menced by them, 610, 615, 616
may issue execution after commission expires, . 610
when commission of, expires, and is renewed.
JUSTICES OP PEACE — co7j^;»?f?r7.
proceedings before not to be inter-
rupted thereby, GIO
to account for all fines to town and county ,
treasurers semianmially, 610
to return to county treasurer once in three years
all officers' fees then uncalled for, witli
a schedule thereof, GIO
to make return of criminal cases, costs, fines
and forfeitures, to secretary of com-
monwealth annually, according to
blanks furnished, and penalty for
neglect, 120, Gil, 851
laws in relation to, not to affect police courts, . Gil
not disqualified from acting- by reason of being
inhabitants of town wliicli is interest-
ed, 618
may take affidavit, and authorize arrest of debt-
ors on mesne process and execu-
tion, 633,634
may take depositions, 674-676
powers and duties of, in regard to solemnizing
marriages, 530
penalties on, for violation of provisions con-
cerning solemnizing marriages, . , , 530
for acting directly or indirectly in cases
under tlie acts of congress respecting
fugitives from service or labor, . . . 741
while eommi^pioner of United States circuit
court, shall have no authority under
state laws, except to summon wit-
nesses, 742
fees of, for official duties, 78:J, 784, 787, 879
of each, when two or more are required to
attend, 7S4
may be disallowed by district-attorney, in
criminal cases, when, &c., 78S
duty of, as to taxing costs in criminal cases, . . S51
when justice may retain his own fees, 851
refusing to obey, how punished, 814
falsely assnmiug to be, how punislied. 814
when to discharge duty of coroner, 8.J0
fees of, in such case, 850
power and duty of, as to the discharg-e of poor
convicts, 878, 879
Civil Junismmox.
to hold courts severally in their respective coun-
ties, G(>4
to have exclusive original, of actions of re-
plevin for beasts distrained or im-
pounded, 604, 605, 730
of actions of forcible entry and detain-
er, G05, 707
of actions of contract and tort, where dam-
ages do not exceed twenty dollars, . . 605
to order sale of property held in pledge, .... 7G9
may take recognizance for debt, 771
to enforce mechanics' lien, if not over one hun-
dred dollars, 763
{See Liens.)
original and concurrent, with superior court,
of action of contract and tort, wliere
debt or damage exceeds twenty dol-
lars and does not exceed one hundred
dollars, 605
of replevin of other property than beasts
distrained or impounded, where value
of property does not exceed one hun-
dred dollars, 731
laws relating to pleading and practice applicable
to actions before, 663
INDEX.
1023
JUSTICES OP F'EACB—contimied.
in actions bet'orc, how interrogatories by parties
to suits to be filed and answered, fiC3
jurisdiction and proceeding's in trustee process,
and scire facias on judgments there-
in, 729, 730
may issue writs of scire f^icias against executors
and administrators, ou suggestion of
waste, 005
against bail taken in actions before them,
although judgment exceeds their gen-
eral jurisdiction, 605,044
writs, in such cases, how served and return-
able, 005
judgment may be rendered, and execution
issued, althougli whole sura exceeds
one liundrcd dollars, 005
writs in actions coiumoncod before, forms of,
how sigued and issued, and to be
served and returned in same county, 005
may run into auy county for purpose of at-
tacliing property, but cost of service
limited to one dollar fifty cents, . . . 005
how served, and notice of action given,
when defendant is out of state, and
proceedings in such ease, 605
not to be returnable earlier than 9 A. M.,
nor later than 5 P. M., and may be re-
turnable at dwelling-house, C05
attachment of lands not to be made on, un-
less damages demanded exceed twenty
dollars, 024
execution issued by. for damages exceeding
twenty dollars, to be so framed as to
direct a levy ou lauds of debtor, . . . CSG
action before, may be heard at dwelliug-houscs, 005
may be removed to superior court when title to
real estate is brought in question, GOG, 731
actions of replevin may be removed when pen-
alty or damages demanded exceed one
hundred dollars, 631
party requesting removal to recognize ; and if
he fails so to do, justice to hear ease, . 000
party recognizing, to enter action and produce
papers; and if he fails so to do, ad-
verse party may, on complaint, have
judgment, 000
when absent at time and place to which any
process is returnable, any other jus-
tice may attend and continue case, not
exceeding thirty days, 005
may enter judgment and award execution for
plaintiff, upon default or trial, . . 005, OOG
for costs for defendant, if plaintiff fails to
enter action or to maintain it, ... , GOG
trials before, may be had either ou written pleas,
or defendant may orally deny plain-
tiff's right to maintain action, and
trial be had upon such denial, .... COG
trials may be had before jury, if all parties file
a written waiver of right of appeal ;
and in such case, no appeal shall be
had, OOG
six jurors to be summoned in such cases ; how
drawn, summoned, sworn, and era-
panelled, and proceedings thereup-
on 000, OSO
when sufficient number of jurors cannot be
obtiuned, justice to cause jurors to be
returned from bystanders, 007
how long required to serve, &c., .... OSO, OSl
sheriff or constable to attend on such juries, 000
JUSTICES OF F'EAC'E — confimied.
foes of officers and expenses of room, in such
cases, to be paid by county, 007
costs for attendance before, 7>vJ
to enter on docket day when case is disposed
of for the terra, 78;J
Death of justice, while actions before remain
unfinished, proceedings thereupon, . GO"
any other justice may transcribe records,
certify copies, and issue judgment, . . G07
may summon executor or administrator to
produce records, 007
Set-off of mutual demands in action before,
how nuide, 671
Appeal from decisions of, may be bad, to
superior court, within twenty -four
hours after entry of judgment, by auy
party aggrieved, 607
appellant to recognize, with sureties, to
prosecute appeal, 607
enter appeal, and produce copies and pa-
pers ; and failing so to do, adverse
party may, on complaint, have judg-
ment affirmed in superior court, . . . 607
pleadings and trial in superior coux-t on
such appeal, 007
costs on appeal, 7S0
appeal or complaint for non-entry thereof, if
not seasonably entered, may, on leave
of superior court withm one year, be
subsequently entered, 503
effect of such subsequent entry on bail and
security taken in action, 503
Criminal Jurisdiction.
all justices to bo conservators of peace, and may
issue wfUTants returnable befoi'c police
courts or trial justices, . . 570, GOS, 827, 83
to receive no fees tlierelbr, 570, 008
may arrest offender without warrant, iu certain
cases, 008,828
not to have other jurisdiction in criminal cases,
unless designated as trial justices, . . 608
may issue search warrant for liquor kept for
unlawful sale, &c., 445
may issue search warrant for gunpowder, &e.,
unlawfully kept, &c., 461
duty of, in suppressing riotous and unlawful
assemblies, 815
pennlty for neglect of such duty, 815
Trial justices, to continue such according to
the tenor of their eomraissious, . . . 608
number to be appointed in the several conn-
ties, 608
authority of, ceases on change of domicil, 608
may discharge poor debtors arrested on
mesne process or execution, 635
ajjprove bail bonds, 642
to have jurisdiction of offences punishable
by fine not exceeding fifty dollars,
or imprisonment not exceeding six
months, or both, 008
may punish for assaults and batteries,
&c., and cause rioters and disturbers
of the peace, and other disorderly per-
sons, to be arrested, 608
persons arrested, in such cases, to be tried,
required to find sureties, and bound
over to superior court for trial, ^ . , 608
may also punish for breaches of town by-
laws, violations of liquor law, illegally
keeping billiard tables and bowling al-
1024
INDEX.
JUSTICES OF PEACE — co»iin,7/erf,
alk'ys, violatioua of linvB relating- to
public health, and against property in
cemeteries, 60S, C09
may, concurrently with superior court, have
juriscUctiou of certain larcenies, of
buying, receiving-, concealing-, and aid-
ing in concealing, stolen goods, and of
obt;uning property by false pretences,
games, sleight of hand, and tricks,
and how may punish therefor, .
also, of offences of wilfully cutting and
otherwise injuring trees, stealing from
gardens, and trespassing upon or-
chards, 009, 805,
also, of unlawfully taking and usin;
609
,800
JUSTICES OF PEACE-eo»fmwed.
liorses, carriages, boats, and other
property, doo, 801
shall arrest and bind over persons commit-
ting felonies and other crimes, . . 4(H, C09
Appeal to superior court may be had by any
person convicted before, . , . 009, 010, M:{
appellant and wituesscs to recognize, . . . M^:;
duty of justirc, M:t
othir provisions respi'cting, S4:J
JUSTICES* COUKT FOR THE COUNTY
OF SUFFOLK.
jurisdiction and records of, transferred to police
court of lloston, 573
JUVEWHiE CONVICTS. (See Sentence.)
to what prison may be sentenced, 84G
Ko
KEIiP AND OTHER SEAWEED.
ri'gulatiniis concerning gathering, &c., of, . . . 433
KIDNAPPING.
where prosecuted, and how punished, 794
consent of person kidnapped not to be a de-
frncc, unless, &c., 79-1
KINDRED.
what, to inherit estates, 474
KINDRED — roittuuied.
degrees of, to bo computed according to rules of
civil law, 4ri
of half blood, to inherit with those of whole
blood, 474
when liiible lor support of paupers, .... 392,393
KUTTA-HUNK.
island of, land on, ceded to United States, ... 44
LABOR.
cert^n claims for, entitled to priority in distri-
bution of estates of insolvent debt-
ors, 594,595
to be paid in full by stockholders m manuljic-
turhig corporations, 33()
LAGER BIER.
considered an intoxicating liquor, 442
penalty for setting up exhibitions at which bier
is sold 404
LAMPS.
w ilful, &c., extinguishment of street, how pun-
ished, S03
LAND OR LANDS.
words, how construed, 51
LAND AGENT.
aijpointniont, salary, and bond of, 138
general duties of, 138j 139
sales by, to be approved by governor, &c., . . . 139
to make annual report to legislature, 139
and annual statement of expenses of his office, . 141
LANDING PLACE.
common, when fences, buildings, &c., to he
deemed boundaries of, 251
LANDLORD.
not to have hen on wearing apparel of seamen,
&c., in certain cases, 200
Remedy for, against tenant whose lease
has terminated, 707
who uses premises for nuisances and certain
illegal purposes, 454
LANDLORD — contimted.
who refuses or neglects to pay rent, . . 472,707
how may terminate tenancy at will, .... 472
( Si'c Forcible Entry and Detainer.)
LANDMARKS.
peiiiilty for removing, destroying, &c., .... 803
LARCENY.
from the person, with violence, how punished, . 793
breaking and entering with intent to commit,
how punished, 797
in a buildhig, ship, or vessel, 797
of property removed because of alarm of fire, . 797
in a building that is on tire, 797
from the person of another, 797
of personal property exceeding one hundred
dollars in value, 797
not exceeding one hundred dollars in value, 798
of wills, codicils, &c., 798
allegations in indictment and evidence at
trial, 798
of property not exceeding live dollars in value, 798
on conviction of, belbre police court or jus-
tice of the peace, how punished, . . , 708
person convicted of three distinct larcenies, as
principal or accessory, at same term,
to be deemed common and notorious
thief, and how punished, 798
so upon second conviction of larceny, . . . 798
of paper or blanks for bank bills, with intent to
utter and pass, and thereby to defraud,
how punished, 798
INDEX.
1025
LAKCENY — ron/Znt/er?.
of beasts and birds not subject of larceny at
common law,
property stolen to be kept and restored to owner
after conviction,
after conviction for, court may order meet
recompense to prosecutor,
so when offender has forfeited his recognizance,
or escaped,
what is deemed, and how punished, . . . .798,799
may be accessory to, before and after the fact, . 798
jurisdiction of such cases, 799
of whose property it may be, 799
of those who may maintain an action of tort, 799
but not of those having only the use or cus-
tody, 799
of wife in possession, 7i>9
of property of person deceased, 7W
from person unknown, 799
may be committed by those having the use or
custody of property, 799
but not by those against whom an action of
tort would not lie for such acts, . . , 790
jurisdiction coucerniug, given to justices of the
peace and police courts, 570, G09
LARD. (See Ihitter and Lard.)
j>rovision8 respecting inspection and sale of, 2jS-2G0
LA'WS.
enacting style of, 31
construction of, 50
words and phrases in, to be construed ac-
cox'diug to conmion usage, unless tech-
nical, 51
words in singular number may be applied
to plural, and vice versa, 51
words in mascuUne gender may be appUcd
to feminine, 51
words giving joint authority to more than
two, shall apply to majority, 51
construction of various words, 51,5iJ
acts of incorporation to be deemed pubUc acts, . 50
execution of, those hindering, how pnnished, . 814
list of laws repealed after passage of Revised
Statutes, and before passage of Gen-
eral Statutes, 907, 908
Of foreign countries, how proved, . . G78, 079
of other (st;ites, and the United States, how
piovcd G7S, G79
And Resolves.
to be boTind, eacii year, in separate volumes, . , 49
ho^v promulgated, 50
to be publislie:! by secretary at close of each ses-
sion of legislature, 49, 50
how distributed, 50
when to take effect, , 50
certiiiu general, to be published by secretary in
pamphlet form, and sent to town
clerks for distribution, 50
to be publislied in newspaper, 50
LEASE.
for more than one hundred years, while fifty
are unexpired, to have incidents of
freehold, 471
for more than seven years, to be recorded, . . . 400
written, tenniuatod on non-payment of rent, by
fourteen days' notice to quit, . . 472, 707
at will, how terminated, . 472
terminated by tenant's using premises for cer-
tain unlawful purposes, 454
not to prevent partition of real estate, or invali-
date any partition heretofore made, . 705
86* 129
LEASE— conthuipd.
when termmated by notice to quit for non pay
ment of rent, how lessor may be re-
stored to possession of premises, . . 707
after such notice, and four days before entry of
action for possession, lessee may pay
or tender rent and costs, and be re-
stored to his rights, 707
how leBsor may be restored to possession when
lessee, &c., holds unlawfully or with-
out right, 707
(.S'ee Forcible Entry and Detainer.)
ebtates held by, how attached, 026
how levied on tc satisfy executions for
debt, 090
LEATHER.
inspector-general of, how appointed and term of
office, 258
to be sworn, 258
to give bond, 209
may appoint dei>uties, who shall give bond,
258,209
fees of, 2G9
and make returns once in six months, . . . 258
inspectors to furnish themselves with scales,
weights, and seals, 269
to inspect leatlier witliin place for which
appointed, 209
deputy may inspect in another place, when
no inspector therein, 209
fees of, ' 269
liability of, if weight varies five per cent, from
amount marked, 209, 270
Sole and belt, how to be inspected, weighed,
and stamped, 269
made of hides of neat cattle, not to be sold
until inspected, 209
penalty for buying or selling, -without in-
spection, 269
penalty for counterfeiting, &c., inspectors'
marks on a side of, 2G9
Upper, measurers uf, to be appointed by select-
men, &c., annually, ,. . . . 270
to be sworn, 270
to furnish themselves with measures and
seals, 270
duties and fees of, 270
penalty for counterfeiting marks of measurer, 270
manufacturers of leather, boots, &c., to have
right to stamp articles manuliictured
by them, 270
such stamp to be considered as warranty, . 370
articles not considered merchantable unless
so stamped, 270
penalty for fraudulently using stamp or
name of another person, 270
liEGACIES.
when not to lapse by death of legatee before
that of testator, if issue survive, . . . 479
such issue to take, unless, &c., 479
to a subscribing witness to a will, void, unless
there are three other competent wit-
nesses, 477
may be reco^'ered by action at law, and time of
action not limited, 493
may be attached and held by trustee process, . 723
when and how liable to contribution for pay-
ment of debts of testator, 479
LEGATEES.
to contribute when estate is taken from a dev-
isee, &'c., to pay testator's debts, or
for dower, &:c., of widow, . , , . 479,480
1026
INDEX.
LEGATEES — continued.
how liable to coutributc to posthumous or other
child omitted in testator's will, . . . 479
mfly recover Icg-acios by action at common law,
and time therefor not limited, .... 40:3
maybe required to give bond to refund, if neces-
sary, when they demand payment
witliin two years after administration
is taken, 493
when and how liable for debts of testator, . . . 507
actions ag;ainst, for such debts, not barred by
provisions for action aj^ainst execu-
tors, &c., 402
estates of, liable for such debts after their death, 507
not liable to pay more than amount received
from testator's estate, 507, 508
Mable to contribute among themselves, &c.,
when debts are paid by part, 508
having claim for further damages against exec-
utor, &.Q.y after judgment on bond,
may have writ of scire facias, and
new execution thereon, 507
residuary, when executors, may give bond to
pay debts and Ir;j;acies, 481
LEGISLATIVE DEPARTMENT.
not to exercise executive and judicial powers, . 17
to consist of two branches, 17
to be styled the General Court of Massachusetts, 17
{See General Court.)
LESSEE.
of personal property, selling without written
consent of owner or lessor, how pun-
ished 803
LE"WD, "W ANTON, AND LASCIVIOUS
PERSONS.
common, in sjK-ech or behavior, how punished,
S-JO, 821
LE'WD AND LASCIVIOUS COHABITA-
TION.
how punished, SIS
LE'^^DNESS.
open and gross, how punished, SIS
LEVY. .
of warrants of distress for taxes, S2
of execution on real estate, 510-521
on personal estate, (>.'57-090
{See Execution.')
LIBEL.
evidence of truth of matter may he given in evi-
dence as justification in civil actions,
for publishing, 002
justification in actions for, not proof of mahce, . 002
form of declaration for, 060
actions for damages for, to be brought in two
years, 777
the truth may be shown in defence in indict-
ments for, 841
such defence sufficient, unless malicious inten-
tion is proved, , 841
For seizing forfeited goods, 772
proceedinL,^s thereon, 772-774
For divorce, {'^ec Divorce,) 532-537
LIBERTY, PERSONAL.
provisions rrs])fi'ting, 740-742
LIBERTY OF THE PRESS.
not to bi- restrained, 16
LIBRARIES.
of individuals, when, exempted from attach-
ment, &c., GSS
Law.
associations for, heretofore organized, (except in
Suffolk,) to rcmiun corporations, . . . 207
LIBRARIES — co»/;7?7fC('?.
may be organized ill the several counties, . . t'08
when organized, to be corporation to hold,
&c., law library of the county, .... 208
may make by-laws, subject to approval of
superior court, 208
first meeting, how called and when to be
holden, 208
clerk of courts to preside till clerk of asso-
ciation is chosen, 208
officers of, 20S
duties of, to be defined by by laws, .... 208
counties to pay certain sums to, 208
such sums, how to be applied, 208
treasurer of, to give bond, 208
to make annual return to county commis-
sioners, ... 208
inhabitants of county may use books of, subject
to regulations, &c., 205
Pl'BLIC.
may be established by any city or town, .... 208
appropriations for the foundation and main-
tenance of, 208
donations for, by bequest, &c., may be held by
towns, 208
Social.
seven or more proprietors of, may be a corpora-
tion, 208
corporations so organized may hold real and per-
sonal estate, in addition to books, . . . 200
iirst inpcting, how and by whom to be called, . . 209
officers of, to be chosen and manner of call-
ing meetings determined, 209
clerk to be sworn, 209
treasurer to give bond, 209
shares may be assessed for preserving
library, Ac, 209
LIBRARY, STATE.
to be in the state house, 54
when to be open and by whom used, 54
to be under management of trustees, 54
trustees of, by whom appointed and term of
office, 54
duties of, ^
secretary of board of education to be librarian, . 54
may appoint an assistant, 54
compensation of assistant librarian, 54
librarian to make annual report to legislature, . 54
trustees and librarian may employ assistance, . 54
books, &c., belonging to state to be kept in, ex-
coi)t, &c., • • 54
annual appropriation for, and by whom expend-
ed, 54
LICENSE.
if deffudant, in criminal cases, justifies under
written license, &c., he must prove it, 841
until such proof, the presumption shall be that
lie is not licensed, 841
To innholders or common victuallers, may be
granted by county commissioners, in
towns, 455
and by mayor and aldermen, in cities, . . . 455
to specify place where such employment is
to be exercised, 455
not to protect person exercising employ-
ment in otIu?r than place specified, . . 455
to expire on April 1, in each year, 456
list of persons to whom granted, for the pre-
ceding years, to be transmitted to se-
lectmen of towns, 456
INDEX.
1027
LICENSE — continued.
applications for, how made, 4oG
not to be ^Tauted or renewed vrithout certifi-
cate from selectmen, 45ii
form of such certificate, io)
proce'cdings, if selectmen refuse certificate, -i5'i
fl'hen may be revoked, ' 450
no fee to be rcquirecl for, -15?
To keepers of intelligence ofQcea, may be
j>Taiitod by mayor and aldermen :md
selectmen, 457
penalty on person's keeping; such office
without, 457
fci^ for, 457
To auctioneers, may be ^-antcd by select-
men, 280
other provisions respecting, 281
To hawkers and pedlers, may be granted
by the secretary of the commonwealth, 282
other provisions respecting:, 282,2.83
To dealers in junk and second-hand ar-
ticles, may be g;ranted by mayor and alder-
men and selectmen, 457, 45S
to designate place of business, prescribe
restrictions, &c., 458
penalty on persons dealing in such articles
witliout, or contrary to provisions of, 458
To pawnbrokers, may be g'rantod by mayor
and aldermen and selectmen, 458
to designate place of business, and pre-
scribe restrictions, &c., 45S
penalty for carrying on business of, without,
or violating provisions of, &c., .... 458
Of livery stables, in maritime places, may be
granted by mayor and aldermen, &c., 458
penalty for keeping or using stable without, 458
For use of steam engines, furnaces, &c., in
certain places, granted by mayor and
aldermen, 458, 459
notice of application for, how given, .... 459
For selling, &c., fireworks, may be granted
by mayor and aldermen, &c., .... 4r.O
penalties for violations of, 400
Of dogs, term of, and fees lor, 401
to be issued by town clerk, 401
when may be given, 401
new, not required upon removal, imlesSj&c, 40!
penalty for keeping dog without, 401
towns, Ac, may make additional regulations
concerning, and fix fees, 403
For theatrical exhibitions, public shows,
&c., may be granted by selectmen, . 4f)3
penalty for setting up, ^v^thout license, . 403, 4<V1
for getting up masked balls, 404
for exhibiting fighting birds, &c., .... 404
For billiard tables, and bowling alleys, may
be gnnited for amusement only, by
mayor and aldermen, &c., 403
penalty for keeping billiard tables, &c.,
without, 403
To sell real estate, for payment of debts,
Ae.) by executors, 510, 512
of ward, by guardian, 545
LIENS.
Ox Lands and Buildixgs.
who may have lien for labor done and materials
lurnished, 762
nature of the contract to give a lien, 762
lien not to attach for materials furnished, unless
owner of property is notified, .... 702
not to be of force against existing mort-
gage duly recorded, 762
LIENS — confimierf.
not to attach, when owner gives written no-
tice that he will not be responsible, , 702
to be dissolved, unless statement of account
is filed in city or town clerk's office, . 702
what the statement must contain, and when
to be filed, 702
what inaccuracy in the statement not to in-
validate proceedings, 702
shall be dissolved, unless suit be brought to
enlbrce it, in ninety days, .... 702, 703
may be enforced by petition to superior
coui-^fur a decree for sale of premises, 703
when claim does not exceed one hundred
dollars, petition may be to justice of
the peace or police court, 703
parties may appeal therefrom, as in other
civil cases, 703
petition may be inserted in a writ of original
summons, 703
how served, returned, &c., 703
any number who have labored on same building,
&c., may join in petition, 703
rights of each petitioner, and of the superior
court, 703
statements and prayer of such petition, . . 7f)3
cither party may amend pleadings, 703
such petition to be indorsed like an original
writ, 700
what notice, and to whom, shall be ordered by
court, before acting on the petition, . 703
all creditors, having such lien, may appear and
prove their claims, and contest tlie
claims of each other, 703
chiims of all such creditors, who appear, to be
determined by court with or without a
jury, 703
material questions of fact to be decided by a
jury, if either party require it, .... 704
before justice of peace, or police court, a jury
shallbe had only as in otiier civil cases, 704
provision for allowance of claims due abso-
lutely, but not then payable 764
of claims iot part performance only, when
claimant is not in fault, 704
sale of premises to be ordered, if lien of any
creditor, who presents his claim, is
established, 704
of part of premises, when may be ordered, 704
notice of gale 'by officer, and debtor's right to
redeem, 704
court, on ordering sale, may direct officer how
to distribute proceeds, if claims are all
ascert^ned, 704
may order officer to bring proceeds into
court, if claims arc not all ascertained
when sale is ordered, 704
liow court may order distribution, according to
circumstances, 704
surplus proceeds of sale to be paid to debtor;
liable, however, to attachment, &c., . 704
if premises are attached, when mechanic's state-
ment is recorded, what proportion of
proceeds of sale shall be reserved for
attaching creditor, 764, 700
to be ascertained by a jury or otherwise,
7&4, 765
on such creditor's recovering judgment, re-
served proceeds to be applied to dis-
charge thereof, 755
if premises are attached after statement is re-
corded, surplus proceeds of sale to be
1028
INDEX.
LIENS — continued.
applied as in case of successive attach-
ments, A;e., rc5
where an attat-hment intervenes between two
liens, 705
different attaching' creditors, and persons having^
liens, to be paid successively, accort!-
iug to date of their respective liens, , 705
several persons, who have liens and equal rights,
to be paid ratidjly, if proceeds arc in-
sufficient to pay the whole, 7G5
if debtor have aliio estate only, or is mortga-
gor, &c., vrhen lien attijehes, lien to
bind his interest, 7G5
if debtor die, or aliene the premises, suit may
bo brought, or prosecuted, against his
heirs or assigns, 7(35
if creditor die, his administrator, «fec., may sue,
or prosecute suit already commenced, 7G5
if creditor petition for sale prematurely, or be-
come nonsuit, other creditors, having
a lien, may proceed with the suit, 705, 7GG
claim of such creditor may be allowed, on
terms as to costs, if the suit be pur-
sued by others, 705, 7GG
foregoing provisions not to take away creditors'
common law rights, 700
appeal to supreme court allowed from any final
judgment, &c., of superior court, . . 705
costs to be s\djject to discretion of court, and
paid from proceeds of sale, 70G
wlieu debt is fully paid, creditor,at debtor's ex-
pense, to discharge lien in the regis-
try, or execute a release thereof, . , . 7GC
On Ships and Vessels.
who to have, for what, and by virtue of what
contract 7GS
to be preferred to all liens, except mariners'
wages, 70,8
to continue until the debt is satisfied, 708
to be dissolved, unless sworn statement filed, . 708
within what time to be filed, 708
what the statement is to contain, and where to
be recorded, , , . . 70S
where ship is built partly in one place and partly
in another, either place to be deemed
the port, 708
what inaccuracies not to invalidate proceechngs, 708
may be enforced by petition to superior court, . 708
in what county proceedings are to be Ifed, . . , 708
Petition, form of, and how served, &c,, . . . 768
what to contain, and prayer of, .... 7C8, 769
may be amended by either jiarty, 709
several clainiants may join in one petition, . 709
rights of each petitioner and of the respond-
ent in suuh case, 709
claims in sucli case to be m;irshalled, and
net proceeds of sale distributed, . . . 709
if all liens cannot be satislied, those for la-
bor to have one tliird greater percent-
age than those for materials, &c., . . 708
attachment to issue against vessel at time
of filing petition, 708
how may be dissolved, 7*>S
such dissolution not to dissolve the lien, . 708
foreign vessels not affected hereby, .... 709
On othkr ri:KSONAL PKtn'i:i:TV.
For work done, or money expended on, . 7C9
person having lien, may petition justice of
peace or police court for an order of
sale of the property if money is not
XjIENS — continued.
paid in sixty days after a written de-
mand therefor, 709
in what county petition to be brought, . . . 709
justice to issue notice ; service and return, . 7G9
proceedings, where owner is unknown or
resides out of the state, *. , 709
when the justice or court may order sale, 769, 770
proceeds of sale, how disposed of, . . . 709, 770
surplus to be paid to owner ou demand, . 770
amount due to bo ascertained and recorded, 770
cither party may appeal, 770
if respondent api)eals, ho shall recognize, . 770
condition of recognizance, 770
prevailing party to recover costs, 770
rights of persons, having lien, to dispose
of property otherwise, not hereby af-
fected, 770
Boarding-house keepers to have lien on
bag^gage and efleets of boarders or
guests for board, 770
baggage of mariners excepted, 770
how lion may be enforced, 770
Of attorney, ou client's execution, itc, . . . 015
Attachment of property held by, how made,
0:^7, 628
On Heal Estate in other Cases.
on hmd, for taxes assessed thereon, 83
of testator, for payment of his debts, not
discharged by bond of executor to
pay debts aud legacies, 481
damages awarded by jury against a mill owner
for flowage, to be on mill and mill-
dam, 756
to what sums to extend, 75i), 757
premises may be sold on execution, .... 757
of demandant, in action to recover an estate for
life, for money piud tenant for improve-
ments, 095,000
Not defeated by lunuostoad estate, O'-Io
LIEUTENANT-GOVERNOR.
title of, 25
to be chosen annually, 25, 3-i, 30, 02
qualifications of, 25
oath of, 29, 33
return of votes for, 59,00
in absence of governor, to be president of coun-
cil, 25
to he member of council, except, ttc, 25
when to bo acting governor, 25, 20
when ofllcos of governor and, are vaciUii, coun-
cil to exercise powers of, 26
to hold no other office, except, ic, 30,33
compensation of, 128
may administer oaths of office to public offi-
cers, 131, 132
exempted from serving as juror, 0*79
LIFE INSURANCE COMPAJSTIES, C'''*^
Innurancii Companies^) 321), 330.
LIGHT.
casojuent of, not to be acquired by use, 472
LIGHTERS.
weighers of, &c., 290, 291
{See Vessels.)
LIGHTHOUSE ISLAND.
li-bthuuse on, ct'dcd to United States, 44
LIGHTHOUSES, &c.
ceded to United States, 44, 45
keepers of, exempted from military duty, ... 93
LIME.
inspectors of, may be chosen, in places where
lime is manufactured, 270
INDEX.
1029
T.TTVTR — continued.
inspectors to be swoiii, 270
to inspect limo mnuufactured in Buch place,
when tilled iit the kiln, &c 270
fees of, 270
casks of, how branded, 270
quality of, and of casks, 270
Maine, description of casks for, 270,271
penalty for selling', in casks, contrary to
law, 271
to be forfeited, if sold or shipped contrary
to these provisions, 271
penalty for shifting- contents of casks after
being branded, 271
LIMITATION OF PERSONAL AC-
TIONS.
OxE Year.
actions by creditor against cxecntor or adminis-
trator after notice of assets coming to
executor, &c., after two years, .... -191
against executor or administrator, tor same
cause of action, after the determina-
tion of the original suit by abatement,
&c., 401
against executor or administrator by cred-
itor whose right of action does not
accrue \\'ithin two years after the no-
tice of their appointment, 492
by creditors against heirs, next of kin, dev-
isees, or legatees, 507
actions for penalties or forfeitures given
wholly or in part to the plaintiff, . . . 779
on replevin bonds, 733
on bond given by debtor, whose goods are
attached, to pay appraised value, . . . C30
of writs of review, on judgments against
absent defendants in certain cases, . . 640
for fines and costs by commonwealth
against guiu-dians of poor convicts
discharged, 879
scire facias against bail, (H3
action on recognizances and bonds for poor
debtors, C41
Two Years.
actions for recovery of unlawful interest paid, . 292
for recovery of expense of support of
paupers, &c., .393
for assault and battery and for false impris-
onment, 777
for libel and for sl.ander, 777
by or against executors or adnn'nistrators,
where the deceased died before the
time limited, or ^vithin tliirty days
after, 77S
against executors and administrators, after
giving notice of their appointment by
creditors, 4S4, 491
against public administrator under general
bond, from date of letters of adminis-
tration, 4S7
and after assets come to their hands, . . . 49X
against new administrator after his giving
bond, unless, &c., 492
against a master for breach of the indenture
of apprenticeship, 551
by the commonwealth for penalties and for-
feitures, 779
for the support of paupers and prisoners, 393, S66
for taking illegal fees, 814
for making, &c., false certiticatc of \\it-
nesses, S14
LIMITATION, &c. — continued.
Three Years.
applications for damages caused to lands, &c.,
by the acts of an aqueduct corpora-
tion, 370
scire facias against trustee after judgment, . . . 725
Four Years.
actions against sheriffs for the defatUt of their
deputies, 777
against sureties on guardians' bonds, . . . 5iG
Six Years.
actions of contract on any contract or liability
not under seal, 777
except on judgment of court of record in
the United States, 777
for arrears of rent, except in cases under seal, 777
of ruplevin, and for taking, detaining, or in-
juring goods and chattels, 777
all actions of tort, except certain specified
ones, 777
against the last shareholders of an aqueduct
corporation after its dissolutiou, . . . 375
writs of certiorari, 743
^vrits of error on judgments in civil actions,
except, &c., 745
actions on causes of action that have been
fraudulently concealed, 778
TwEXTv Years.
pergonal actions on contracts not limited by
foregoing provisions, &c., 778
actions on bills, notes, &c., issued by banks, . . 777
by original payee (or by executor, &c.) of
witnessed promissory notes, 777
Exceptions.
minors, married women, persons absent from
the United States, insane or impris-
oncf], may sue within the times lim-
ited after the disability is removed, . 778
time of war not included in the computation, in
case of certain alien plaintilfs, .... 778
time of defendant's absence from the state
not to be included, 778
two years to be allowed on death of either
party before, or within thirty days
after, expiration of limited time, . . . 773
one year to be allowed after failure of former
suit, or reversal of judgment therein,
for same cause, 491, 778
fraudulent concealment of cause of action not to
prevent suit within six years after its
discovery, 778
action by legatees not limited, 493
Part Paymext, Xew Promise, Ixdorsesiext,
ACIvXOWLEDGMEXT.
effect of payment of principal or interest, not
altered, 779
acknowledgment or promise, if in writing and
signed by party chargeable, prevents
the limitation operating, 773
indorsement of payment on not« by payee not
sufficient, 779
promise, &c., by one of several joint debtors, to
affect himself only, 779
or by one of several joint executors, &c., . . 779
General Provisioxs.
limitation of demands filed in set-off, . . . 671,779
1030
INDEX,
LIMITATION", &c.~confimtefJ.
in actiuus iig^iiiiist several joint debtors, if plain-
tiff is barred by limitation against
Bome and not against others, how
judgment is to be entered, 77'J
in pleas of abatement for non-joinder of defend-
ants, if aetion was barred by limita-
tion against those not joined plain-
tiff may have judgment, r'U
in actions of contract to recover balaiice in
mutual and open account, limitation
to run from last proved item of ac-
count, r77, "(S
all limitations Jipply to actions brought by the
commonwealth or for its benefit, . . . 771)
do not apply to any action otherwise spe-
cially hmited by law, 779
running of statute period not affected by repeal
by the General Statutes, 860, 881
judgments and decrees of courts of record in
the United States presumed to be
paid in twenty years after the rendi-
tion thereof, 77D
LIMITATION' OF REAL ACTIOJMS,
AND RIGHTS OF ENTRY.
to twenty years next after seisin of demandant,
or those under whom he chiims, ex-
cept, &c., 775
this provision extended to suits by or on
behidf of commonwealth, 770
except as to Province lands in Province-
town, and certain lauds in the basins
of Back Bay, 770
heirs, &c., of tenants, or remainder-men in tail,
limited hke their ancestors, &c., as to
estates which their ancestors, &c.,
might have barred, 770
estates tail and remainders, and reversions
expectant thereon, also barred, . . . 770
from what time twenty years shall be com-
puted, when right, &c., first accrued
to demandant's ancestor, 775
when demandant's right shall be deemed to
have first accrued, in different cases, . 775
persons disseised, 775
heirs and devisees of one who died seised, . 775
where there are intermediate estates, . . . 775
in case of forfeiture, or breach of condition, 775
in cases not otherwise specially provided for, 775
five years' extension of time to successors of
ministers, and other sole corpora-
tions, in certain cases, 775
ten years' extension, in favor of persons under
disability when their right accrued, , 775
in favor of heirs, &c., of those who die dur-
ing continuance of disability, . . 775, 770
no extension of time allowed, after death of
person under disability, by reason of
disability of other persons, 770
extension of one year, after abatement of a suit
by death of a party, or reveryal or
arrest of judgment on a verdict for
demandant, 777
foregoing limitations take effect after Decem-
ber, 1839; with a saving for persons
then under (Usability, 770
action or entry, by executors, &c., into lands
fraudulently conveyed by deceased,
hmited to five years, 511
by wards, heirs, &c., for or into land sold
by guardians, administrators, limited
to five years 515
LIMITATION, &Q. — continued.
liuiitutiou, wlien to begin to run in cases
of minors and persons out of state, . 515
action, by judgment creditor who has levied
on lauds fraudulently standing in the
name of a person other than the debt-
or, &c., to bo brought in one year, . . 533
no descent or discontinuance to take away
right of entry or defeat action, . . . . 776
entry on land to save limitations not effectual,
uulees pOBsesBion retiuned for a year,
or action brought within the year, . , 776
chums, &c., for dower limited to twenty
years, 409, 470
for enforcement of mechanics' lien, to be brought
within ninety days, 703
to foreclose mortgage after tender, and founded
thereon, "13
LIMITATION OF CRIMINAL PROSE-
CUTIONS.
indictments for murder may be found at any time, 839
for other offences, witliin six years from the
commission thereof, 839
time that person is not usually and publicly
resident within this state not to be
reckoned as part of the six years, . . 839
(For olher Limitations, see Titles of particular
offence fi.)
LIMITED PARTNERSHIPS.
special provisious concerning, 290, 297
iusolvL'ucy proceedings by and against, how
conducted, 597
{See Partnerships.)
LLKTEN.
manufacture of, by corporations chartered for
other purposes, 341
LnSTES OF TCWNS.
])rovisi()ns respecting porambulntion of, . . 157, 158
LIQUORS, SPIRITUOUS AND INTOXI-
CATING.
what to be so considered, 442
not to be furnished convicts, excejit prescribed,
under penalty, 8G3
l)rovisions for the regulation of manufacture
and sale of, 438-453
1. Commissioner.
Commissioner to sell to town agents, how ap-
pointed, and tenure of ofiice, 43S
to give bond, 438
to keep place of business in Boston, and sell
to agents pure liquors, 438
liquors, kept for sale by, to be analyzed by
state assayer, 438
to sell no liquors without assayer's certifi-
cate that same is pure, &c.. 438
analysis, how made and certified, &c., . . . 438
to Bell for cash, at advance on cost not ex-
ceediug five per cent., 438
to keep record of all purchases, sales, &c., , 438
such record to be open to inspection of select-
men, &c., 438
to seal all packages of liquors sold by him, . 433
penalties on, for adulteration, selling to per-
sons not agents, &c., 438,439
for selling adulterated liquors, 439
on persons employed by, for same of-
fences, 439
to receive no compensation from state, . . . 439
to incur no liability in behalf of state, . . . 439
to make annual report to secretary of com-
monwealth, 439
INDEX.
1031
LIQUORS, &c.~ continued,
to appoint agents to sell liquors in Hoston, . 439
euccessor iu office to purchase etock of, . . 430
value of stock of, liow detemiiued in case of
disagreenieut, 439
2. AUTHORITV TO MAXL'FACTfKE AND SELL
FOR EXPORTATIOX, &e.
Manufacturers of, how authorized to make
aud sell, 439
to roc<?ive certificates of authority, and to
give bond, 439
form of such bond, 439, 440
bond of, to be put in suit for breach thereof,
and certilicate forfeited, 440
to keep book, open to inspection of board
authorizing manufacture, &:c., .... 440
to record sales in such book, Arc, 440
record of names, residences, &c., of, aud of
town a;,'ents, &c., to be kept by clerks
of boards authorizing, &c., 440
Buch record to be open to public inspection, 440
3. CiTV ASD Towx Agkxts.
Agents for selling-, to be appointed annually,
iu every city and town by select-
men, &e., 440
to sell for medicinal, mechanical, &c., pur-
poses only, 440
to receive fixed salaries, 440
penalty on selectmen, &c., for not appoint-
ing, 440
to receive certificate authorizing to purchase
and sell, &c., 440
to give bonds, 441
form of bonds, 441
bond to be put in suit for breach thereof,
and appointment revoked, 441
record of appointment of, to be kept by town
clerks, 441
to keejj account of purchases of liquors, &c.,
and of forfeited liquors delivered to
them, 441
to keep record of all sales ; form of such
record, 441
to pui-cliaso only of commissioners, under
penalty, 441
may be restrained by supreme judicial court
from purchasing contrary to law, , . 441
to make returns of purchases auuually, to
secretary of comnionwe;Uth, . . , 441 442
pemilty on, for neglect to make returns, , . 442
for making false statements to, 442
4. Sales, &c., specially authorized,
foreign liquors, imported under laws of United
States, may be sold by importer in
the original packages, 442
pure lUcohol may be sold by druggists to phy-
sicians, ttc., for medicinal purposes, . 442
druggists to keep record of such sales, open to
inspection of selectmen, &c., 442
penalty on, for illegal sales, 442
chemists, &c., may keep spirituous liquors for
use in their art or trade, 442
cider may be manufactured and sold for other
purposes than a beverage, 442
wine, umwlulterated, may be sold for sacnuncn-
tal purposes, 442
5. Unlawful Sales, Ac; Remedies, Pun-
ishments, &c.
manuiacture and sale of intoxicating liquors
prohibited, unless authorized, &c., . , 442
IiIQtJOHS, &Q. — continued.
owning aud keeping liquors with intent to sell,
prohibited unless authorized, &c., . 442
penalties for unlawful sales, 442
on second and subsequent convictions, . 442, 443
on person employed by seller, 443
jurisdictjonof such ofi'ences given to justices
of the peace, 608, 009
penalty for being manufacturer or common
seller, 443
on second and subsequent convictions, . . . 443
on person employed by such manufacturer,
&c., 443
three several sales to be evidence of common
seller, 443
several parties charged, and several offences may
be included, in same complaint, . . . 443
several offences may be tried at same time, . . . 443
party convicted of several offences at one term,
liable to same penalties as if convicted
at different terms, 443
but aggregate term of imprisonment under
one complaint, &c., or at same term,
not to exceed one year, 443
delivery of liquor to bo prima facie evidence of
sale, except, &c., 443
penalty for owning or keeping liquor with in-
tent to sell, 443
for recei\ing liquor unlaivfuUy sold, to be
conveyed to another person, 443
on railroad corporations and their servants
for receiving liquor uulawfully sold
for transportation, &c., 443,444
for bringing into state mth intent to sell,
&c. 444
husband, wife, parent, &c., may give notice in
writing, to seller, not to deliver liquor
to certain persons, 444
persons giving such notice may recover damages
of seller for delivery of liquor after
notice, 444
married woman may maintain action for such
damages in her own name, and re-
cover to her separate use, 444
persons unlawfully selling liquor liable for dam-
ages done by persons intoxicated
thereby, 444
persons found intoxicated, in certain cases, may
be arrested without warrant, &e., . . 4hl
to be taken when recovered before police
court, ic, on complaint for drunken-
ness, 444
to be discharged if they disclose name of
party, &c., of whom they procured
liquor, 444
complaint to be filed by officer, in such case,
against part)- unlawftilly selling liquor
to such person, 444
forms of complaint, warrant and mittimus, in
cases of illegal sale, &c., 449, 450
Search warrants for liquor kept for unlawful
sale to be granted by justice of peace,
&c., on complaint of two persons un-
der oath, Ac, 444,445
not to issue for search of dwelling-houses,
unless, &c., 445
place to be searched, &c., to be particularly
designated in, 445
premises described in, to be searched and
liquors seized and held by officer un-
til final action, 445
form of, and of complaint for, 450, 451
1032
INDEX.
LIQUOHS, &c.~-ronfimi&<J.
uutico to issue to keeper, returnable before
justice, &c., if liquors seized do uot
exceed twenty dollars in value, . . . 443
returnable to Buperior court, if liquors
seized exceed twenty dollars in value, 447
what to contain, bow served, &c., . . 445, 4-Hi
forms of, and of warrant for, .... 451, 452
if not duly served, new may be issued, . . 446
parties interested may appear and make
chiim, and be admitted as parties on
tbe trial, 440
trial to proceed whether claim is made or
not, 440
liquors, &c., appearing to be unlawfully
kept, to be forfeited, 440
if not proved to be unlawfully kept, to be
restored, 446
what, wlien forfeited, to be delivered to
town agents for sale, &e., 4-10
w'liat, to be destroyed, 440
form of warrant for such delivery and de-
struction, 452, 453
persons whose claims are not allowed, to
have right of appeal, 447
costs in such cases, by whom paid, &c., . 440, 447
executions for, and commitment for non-
])ayment, 447
houses'used for illegal sale of liquors, to be
deemed nuisances, 454
penalty for keeping, for such purpose, . . . 454
use of by tenant for such purpose, to avoid
le^^8e, 454
penalty on landlord for letting for such pur-
pose, 454
booths used for sale of liquors \\ithin one mile
of cattle show, &e., may be abated as
nuisances, &c., 454
persons found in the act of illegally selling,
*S:c., may be arrested without warrant, 447
illegally selling at public gatherings to he
arrested, and liquor, &c., seized, . . . 447
duties of sheriiF, and other public officers, in
such cases, 447
if sheriff. Are., neglect to prosecute after notice
of violation, any person may prose-
cute, and be entitled to fines, «tc., . . 4-17
persons convicted of unlawfully selling, &c., to
give recognizance not to commit new
offence, 448
recognizances to be put in suit within sixty days
after default 448
may be put in suit after sixty d lys, 448
suits on, not to be continued, except, A'c, . . 44S
prosecutions for illegal sales, &c., under this
chapter, to take precedence of other
cases in courts, 44.S
nolle prosequi not to be entered in, nor con-
tinuances granted, except, &c., .... 448
liquors unlawfully kept for sale, &c., and vessels
declared common nuisances, 448
payment for liquor illegally sold, to be without
consideration, Szc, 448
actions for, not maintainable, 448
officers, duty of certain, respecting violations of
law 447, 448
executing warrants, to be protected, .... 448
penalty on, for neglect to serve warrants,
&c., 448
indemnity for damages to, in certain cases,
to be claimed of commonwealth, . . . 449
forms of proceedings, 449, 453
LITEHARY, &c., INSTITUTIONS.
to bi> cherished by legislature, Ac, 28,39
pn-pi-rtv of, exempt from taxation, 74
LIVERY STABIiES.
provi-^ions concerning, 453
keepers of, not to give credit to students. . . , 457
LOAN AND FUND ASSOCIATIONS.
heretofore incorporated, to remain bodies cor-
porate, &c., 335
to have as part of title " Loan and Fund Asso-
ciation," 335
to have not less than three himdred shares, . . 335
to file copy of by-laws with secretary, 335
copies of, what certificates to be evidence, . . . 335
to make loans in accordance with their by-laws,
on real estate, or such securities as
savings banks may loan upon, .... 335
to contract no debts other than those connected
with expense of business, 335
members, who can give satisfactory security, to
be preferred in loans, 335
no member, who has borrowed money, to
vote on question affecting claim
against himself, 335
supreme judicial court to have full jurisdiction
in equity in controversies between
corporation, &c., 335
membership, charge for, not to exceed two dol-
lars on a share, 335
no fine to exceed ten per cent, on amount for
which default is made, nor five per
cent., if paid within six months, . . . 335
all payments of principal to be deducted there-
from as often as once in two years, and
interest reduced, 335
to publish annually, &c., statement of its actual
financial condition, &c., 335
and deposit copy, &c., in office of secretary, 335
borrower to have his bond and mortgage can-
celled, &c., on payment, &c., 335
when all shares are redeemed ,A:c., or when funds,
&c., are sufficient to pay the value of
unredeemed shares, &c., the corpora-
tion to cease, except to settle its affairs, 335
insurance commissioners to visit and examine,
&c., 335
LOBSTERS.
not to be taken in certain places, by persons not
living in the state, under penalty, . . 431
nor by inhabitants of this state, la vessels of
over fifteen tons, i-c, 431, 432
on shores of Proviucetown, how to be taken, &c., 432
penalty for illegal taking of, in Provincetown,
how and to whose use recovered, . . . 432
for taking, at certain seasons, in Sandwich
and Wareham, 432
LOGS.
afloat, or cast on shore, provisions respecting, . 424
LONG ISLAND HEAD.
laud on. for lighthouse, ceded to United States, 44
LONG POINT.
land on, for lighthouse, ceded to United States, 44
LORD'S DAY.
to include time from midnight to mi<inight, . . 435
labor, &c., on, except of necessity, &c., proliib-
ited, under penalty, 434
travelling on, except from necessity, prohibited,
under penalty, 434
persons keeping places of entertainment. A-c,
not to entertain other than travellers, 434
penalty for second, and for third convictions, of
such offence, '^34
INDEX.
1033
liOBD'S X> AY — continncd.
penalty on persons abiding' and drinking' at such
place on, 434
on persons attending public amusements on
evening of, or evening preceding, ex-
cept, &c., 434
for rude behavior, &c., in churches on, . . . -i'-M
for violations of, to be prosecuted within
six months after offence, 435
innholders, &c., not to entertain, &c., persons,
not travellers, on cviniiig of, or on
evening preceding, under penalty, . . 434
penalty on innholders, &c., for permitting im-
plements of gaming to be used on,&c., 435
sheriffs, grand jurors, &c., to inquire into viola-
tions of, 434
writs, &c., not to be served on, 434
person serving writ, ic, on, liable in damages
to piirty aggricvefl, 434
pcreons who observe Saturday as the Sabbath,
may perform secular business, &c., on, 435
bills of exchange, notes, Ac., maturing on,
when payable, 293
persons committed to jail on, or on afternoon
or evening preceding, may be bailed
on, 834
LOST GOODS.
or money, of three dollars' value, notice of, to
be posted by finder, 425
notice of, to be given to town ek-rk, 425
to be entered by clerk in book kept for that
purpose, 425
of ten dollars' value, how to be cried, or adver-
tised, 425
how to be appraised, 425
appraisers of, by whom appointed and sworn, 425
owner of, how to obtain, &c., 425
to pay charges, 425
charges for keeping, &c., how determined, . , . 425
finder of, to retain, if no owner appears within a
year, 425
to pay half value of, to town trcasuiy, . . . 425
liable to suit, by treasvirer, for half value, . 420
penaltv on, for neglect to give notice, &c., . 420
LOTTERIES.
p^uli^;Itnlent for setting up, or promoting, or dis-
posing of property by, &c., S23
for permitting the setting up, &c., of lotte-
ries, 823, 824
for selling or permitting sale of tickets, Ac, 824
for second offence, after conviction of a for-
mer, 824
for advertising, or exhibiting representa-
tion of, or of the drawing of, 824
for making, selling, or having with intent
to sell, tickets, &c., in fictitious lot-
tery, 824
on indictment for selling, Ac, spurious tickets,
they shall be deemed spurious, unless
defendant prove them to be genuine,
&C., 824
prizes drawn in, and money, &c., received by
holder of tickets, forfeited to common-
wealth, how recoverable, .... 824, S25
LOTTERY TICKETS, &c.
siMnii warrant nniy issue for, 830
LOVEL'S ISLAWb.
ccdi'il to United States, 44
LOW LANDS.
inipnivi-ments on, how made, &c., 750-753
LUMBER.
Surveyor-general of, how appointed, . , . . 2ri
87 130
LtTMBER— coiUhnied.
limits of his district, 271
to reside in district and keep office in Boston, 271
to be sworn, and give bond, 271
term of office, 271
not to be a dealer in lumber of the kind he
is appointed to survey, &c., 271
all applications for survey to be made to, . . 271
to appoint deputies, for whom he shall be
responsible, 271
to keep record of Inmber surveyed, and fees
received by himself and deputies, . 271, 272
such record to be open to inspection of city
councils and selectmen, 272
to receive ten per cent, of deputies' fees, . . 272
to make annual returns to secretary, .... 272
Deputy-surveyors to be citizens of places
for which they are appointed, .... 271
to be sworn, ami give bond, 271
not to be dealers in lumber of the kind they
are appointed to survey, &c., 271
one or more to survey ship timber, one or
more to survey ornamental wood,&c., 271
fees of, 273, 274
Surveyors of, in places not included in survey-
or-general's district, 272
cities may establish ordinances concerning
appointment of, 272
duties of, 272
not to survey lumber iu which they have
pecuniary interest, 272
fees of, 273, 274
penalty on, for fraud, neglect, &c., 274
Division of, into sorts and numbers, . . . 272, 273
pine boards and planks, 272
joists and dimension timber, 272
spruce, hemlock, juniper, southern pine, &c., 272
ash, raapio, &c., boards, Ac, 272
sorts and numbers of hewn timber, .... 273
oak, juniper, and spruce knees, 273
mahogany and cedar, 273
hewn and round ship timber, 273
white and Norway i)iue, &c., 273
Fees for surveying to be paid by purchaser, . 273
Penalties on persons buying and selling with-
out sur^■ey, 274
on persons actiug as surveyors without au-
thority, 274
LTJWATIC, included in the words "insane per-
sons." {Sr-c /iisdiH' Persons.)
LTTWATIC HOSPITALS, STATE.
at Worcester, Taunton, and Nortliampton, to
be under government of five trustees,
tobeiipiiointed by goveraor, ttc, . . . 400
Trustees of, may take and hold grants, &«., . 406
general powers and duties of, 407
to appoint superintendent, who shall be a
physician, 407
to appoint treasurer aud other ofliocrs, . . . 407
to determine salaries of officers, sulyeet to
approval of governor and council, . . 407
what visitations of hospitals to be made by, 407
to make report annually to governor and
council, 407
to audit report of treasurer, aud transmit it
with report to governor and council, . 407
to mjike cei-tiiin inventories annually, ... 55
Treasurer of, to be appointed by trustees, and
to give bond, 4o7
books of, to be at all times open to iu.'^peo-
tiun of trustees, 407
Lunatics, how and by whom committed to, 407,408
1034
INDEX,
LUNATIC HOSPITALS — f07?Yi««erf.
luiiatics, how disi-liurg^cd or removed, 410
not to be discbiug^ed without suitable cloth-
m<-, 411
what certilicatcs to be made by judges, aud eficct
thereof as to lunatic's residence, . . , 407
proceedings and notice on complaint for com-
mitment to, 407, 40S
town paupers, at what rates to be admitted to, . 409
inmates of, may be transferred from one hospi-
tal to another by governor, 410
may be transferred by alien commissiuuers, iu
certain cases, 397
LtTWATIC nOS-piTAXiS- continued.
but not without concurrence of trustees, . . 307
may be removed by trustees to jails, when hos-
pitals are full, 410
selection for removal, how made, 410
prisoners, how removed to, from prisons, ... 878
incurable lunatics may be removed from, , . . . 410
proceedings in such c^ise, 410
may be recommitted In certain cases, . . . . 411
lunatics confined iu jails, &c., may be removed
to, by order of governor, 412
persons acquitted, or not indicted by reason of
insanity, to be removed to, . 838, 841, 842
M.
MACHLKTERy.
used for manufactiiring, where taxable, .... 76
wilful injury to, how punished, 801
MACKEREL.
provisions respecting inspection, &c., of, . 2G1, 262
MAGAZIWTEJS, &c.
to be iu custody of adjutant-general, 55
(See Public Property.)
MAIMnSTG.
puuisbnient for, 792
for aiding and abetting, 792
for assault, with intent to maim, 793
MAJOR-GElSrERAL.
how appointed aud commissioned, .... 24, 95, 97
how notified of election, 98
when to signify acceptance of office, 98
{Sec Militia.)
MALICIOUS.
offences against property, 803-807
gath'-ring up of bank bills, with intent, &c., . . 810
MANDAMUS.
writs of, may be issued by supreme court, , . , 553
proceedings unucr, 743, 744
return thereto, answer, demurrer, 743
no action shall lie for a false return, 743
if party suing the writ maintains the issue on
his part, his damages shall be as-
sessed, 743
judgment to be for costs, and that a peremptory
writ of mandamus be granted, .... 743
court may make rules before and al'ter first
writ, 743
admittance of third party, proceedings in such
/ case, 743,744
not to abate on death, resignation, &c., of per-
son to whom writ was first directed, . 744
costs on petition for, 7^^!
MANSLAUGHTER.
punislinicnt of, 702
lANUPACTimnSTG CORPORATIONS.
established by special charters subsequent to
February 23, 1830, Arc, continued sub-
ject to the provisions of chapter 38
Revised Statutes, 33ft
every company may make by-laws, &c., with pen-
alties, 33(-
bneiness of, to be managed by a president, a
board of directors, &c., 330
may determine, by its by-laws, what number of
stockholders shall attend, or what
number of shares shall be represented
at any meeting, to constitute a quorum, 337
MAinTPACT'G CORPORATIONS -coH/inKeff.
if the quorum is not so determined, a majority
to be a quorum, 337
Capital stock to remain as fixed, &c., .... 337
of every company not organized, to be fixed
by the company, and at its first meet-
ing be divided into shares, of which a
record is to be made by the clerk, . . 337
shares to be numbered, 337
every stockholder to have a certificate of
his shares, under the company's seal,
and signed by the treasurer, 337
may be increased, not exceeding the amount
authorized by law, 337
no note or obligation given by btockholder
to be considered as payment of any
part of, 337
liabilities of members until whole amount is
paid in, 338
certificate of amount, &c., to be made and re-
corded in registry of deeds, 338
certificate of additional stock to be made, &c., 3;J8
may be reduced by vote of company, .... 333
copy of vote to be recorded in registry of
deeds, under penalty on directors, . . 338
stockholders liable for debts of company, if
any part is withdrawn before payment, 338
shares in, how ta,xed, 7G
every company may increase its capital
stock, not exceeding amount author-
ized by law, 337
may by vote reduce capital stock, .... 338
may by a vote issue two kinds of stock,
namely, general stock and special
stock, 337
special stock at no time to exceed two fifths
of actual capita, and to be subject to
redemption, Arc, 337
holders of, entitled to a half-yearly divi-
dend, &c., 337
holders of, not liable for debts of corpo-
ration beyond their stock, 337
general stock, holders of, liable for all debts,
&c., until special stock is redeemed
&c., 337
may assess upon shares such sums as the
company tliiuks proper, »tc., 337
incorporated prior to 29th ol' June, 11^57, to
give notice annually in newspapers of
affjiirs of, &c., imder penalty on stock-
holders, 338
before commencing business, certificate to
INDEX.
1035
MANTJFACT^G CORPORATIONS — continued,
he made under oath, and publislied,
Bettiug' forth name and purpose of as-
sociation, &c., 339, 342
certificate also to bo filed with secretiry, 339, 34*2
to be filed with city or town clerk, . . 339, 342
also to be filed within tliirty days after
payment of any instalment, . . . 339,342
no loan of money to be made by company
fo stcnicholder, under penalty on offi-
cers, 339
debts of, not to exceed amount of capital
stock paid in, 3^J9
in case of excess, directors, unless absent at
the time of contracting: debt, to be li-
able, 339
incorporated before 23d February, 1830, &c.,
to have all rights, i)rivileges, &c., then
enjoyed, 339
if such corporation adopt provisions of chap-
ter sixty, and record certiticate there-
of, &c., stockholders not to be liable
for debts contracted afterwards, . . . 339
penalty for making- false certificate, . . . 340
debts of, may be recovered of oflicers liable
therefor, in action of tort, 340
such action may be brought, although action
may be pending against company for
same debt, 340
and botli actions may bo prosecuted until
plaintiff recover his debt, 340
persons and property of stockholders, liable
for debt of company, may bo taken on
execution, &c., against company, . . 340
not to be taken ou execution in any action
commenced since 24tli of June, IKjI,
unless, &c., 340
what charters revocable by legislature, . . 340
for manufacture of cotton or woollen goods,
may manufacture certain other
goods, 340,341
provisions concerning, may be amended by
legislature, 341
Shares, to be transferred by proprietor iu writ-
ing, and recorded by clerk, 33?
purchaser of, ou delivering former certificate
to clerk, entitled to new certificate, . . 337
may bo assessed, &c., not exceeding amount
at which each share was originally
limited, 337
may be sold to pay assessments, .... 337, 3;iS
Officers, how chosen, 336
manner of clioicc to be prescribed by the
by-laws 336
liability of, for not making certificate of
stock, &c., 338
making or assenting to loan to stockholder
liable to the extent of such loan, &c., . 339
penalty on, for making false certificate, . . 340
or stockholders, payiug debt for the com-
pany, itc, may recover, &c., against
the company, 340
President, how chosen, 330
dirertors, A-c, after capit-al is paid in, to make
certificate, &c., under oath, 338
such certificate to be recorded in the regis-
try of deeds, &c., 338
certificate of additional capital to be made
and recorded in tlie same manner, . . 338
penalty on auy of said officers for refusal
or negleet to make certificate, &c., . , 338
Directors to be cliosen annually, 336
MAJTCTPACT^G CORPORATIONS— coutinueft.
to be not less than three, ;w6
one of them to be chosen president, &c., . . 336
to be liable for debts of company, if vote to
reduce capital is not recorded, &c., . . 338
to be liable for debts, &c., if they declare
and pay dividend when company is
insolvent, &c., 3;J9
in such case, amount of liability not to
exceed amount of dividend, 339
those absent at the time of making dividend,
or objecting thereto, &c., exempted
from liability, 339
to be liable for debts exceeding amount of
capital stock, unless absent when debt
was contracted, &c., 3.39
may exempt themselves from such liability
by forthwith giving notice to stock-
holders, &c., 339
Clerk to be chosen annually, &c.. 336
to be sworn, 336
to record all votes, &c., 336
Treasurer to be chosen annually, 336
to give bond, 336
to give notice, &e., of sale of shares, &c., . 338
Stockholders, absent, may vote by proxy, . , 337
proxy not valid unless executed within six
months previous to meeting, &c., . . 337
no proxy or attorney to cjxst more than fifty
votes, &c., s."}?
and no oflicer, as proxy, to cast more than
twenty votes, 337
liable,if any part of capital is withdrawn be-
fore payment of debts of company, &;c., 3.'J8
to be liable for debts of company, if state-
ment of atfairs, &c., is not published
aunually, 338
persons and property of, liable for debt of
company, may bo taken on execution,
Ac, against company, 34'!
persons and property of, not to be taken on
execution in any action commenced
since 24th Juno, 1851, unless, &c., . . 340
stockholder summoned, to be admitted to de-
fend, and may have judgment entered
for him, and judgment may bo entered
in same action against company, . . . 34!>
supersedeas as to stockholder to bo an-
nexed to execution on such judgment, 34U
if person or property of officers cannot be
found, then person or property of
stockholders may be taken on execu-
tion, 340
provisions referred to not to apply to exe-
cutions issued on actions pending on
24th June, 1851, 340
or officer paying debt of company, &c., may
recover against the company, property
of stockholders not liable, &c., . . . 3^fi
Assessments may be made by company, from
time to time, at legal meetings, . . . 33r
not exceeding in the whole the amount at
which each share was originally lim-
ited, 337
if proprietor neglects for thirty days to pay,
his shares to bo sold, 337, 3;i>
members jointly and severally liable for all
debts, &c., until capital stock is fixed,
&c., and paid in, 3?8
( See ( 'tirpo ratio n s. )
MAJSrUPACTURING ESTARLISHMENTS.
children between twelve and fifteen years of age.
1036
INDEX.
MANUF'G ESTABLISHMEN'TS — continued.
&c., U(it to 111' i-mi)U)ycd in, unless
they have attuuiled school eleven
weeks in the prcuodiug year, &c., . 220, 230
under twelve years of ag-e, not to be cm-
ployed in, unless they have attended
eighteen weeks, 230
penalty on owner, &c., of,i'or violation of these
provisions, 230
how and to what use rocovered, 230
children under twelve, not to be employed in,
more than ten hours a day, under pen-
:dty, 230
MABBIiE.
city and town nutboriticB may establish survey
of, 274
3VLA.RBLEHEAD NECK.
hind at, ceded to Uuited States, for lighthouse, 45
MARBLEHEAD BOCK.
redid t<. United States, 44
MABUSTERS.
provisions concerning-, 289, 290
(See Seamen.)
MARKS.
on logs, &c., in streams, &c., penalty for cutting
out, 424
on inspected hops, penalty for altering or coun-
terfeiting, 2G8
on leather, penalty for defacing, &c., 2*0
trade marks, how protected, 298
MARRIAGE.
WlH> >TAV CONTRACT, SOLEMNIZATIOX OF, &C.
between certain relations, prohibited, . 528, 520
void, if contracted between such relations, . 531
void, if contracted while either party has
former husband or wife living, . . 529, 531
if either party is an insane person or
idiot, 529, 531
in this state, if solemnized out of state to
avoid prohibition, 529
when, if parties are under age of con-
sent, 531,532
intention of, to be entered with town clerk
or register in place of residence of
parties, 529
Certificate of such entry to be given to parties
by clerk, 529
to bo delivered to minister or magistrate
before solemnizing, 529
not to be is'^ued to certain minors except
on application of parents, 529
may be issued to minors if no parents, &c.,
within this state, 529
affidavit of age of parties applying for, may
be required by clerk, 529
such aflidavit to be sufficient proof of ago, . 520
penalty on person applying for, for wilfully
making false statement respecting age,
&c., 529
if solemnized in another state between par-
ties living here, ccrtiticate to be filed
with clerk, &c., within ten days after
return of parties, under penalty, . . . 529
of minors not to be solemnized without consent
of parents, &c., 530
by whom to be solemnized, and in what place, . 530
fees for solemnizing, &c., 787
of Friends or Quakers, may be Bolcmoized as
heretofore pr.ii^tised, 530
penalty on justice or minister for solemnizing
unlawfully, 530
on person solemnizing without authority, , 530
MARRIAGE — continued.
not invalid for want of authority in person sol-
emnizing, if either party believes it
lawful, 530
admission of, by respondent in process before a
court, or general repute, &c., to be
competent evidence of marriage, . . . 530
solemnized in foreign country by consul, &c., of
United States, valid, 531
certificate of, from such consul, &c., to be pre-
sumptive evidence thereof, 531
validity of, not to be tried on collateral issue, . 531
when void, may be annulled by decree of nullity
or divorce, 532
when validity of, is denied, &c., may be declared
valid by decree, 532
of persons divorced from bond of miitrimony, in
certain cases, may be authorized by
court, 534
of innocent party, after divorce, allowed, , . . 534
of guilty party, after divorce, void, &c., , , . . 534
dissolved or annulled, on account of consanguin-
ity, issue of, to he deemed illegitimate, 534
on account of adultery of wife, legitimacy
of issue not affected, hut if questioned
may be tried at common law, .... 534
on account of nonage, insanity, or idiocy,
legitimacy of issue not afi'ected, . . . 534
of executrix, administratrix, and guardian, ex-
tinguishes her authority, .... 504, 54G
of a female ward, extinguishes guardian's au-
thority as to custody, &c., 540
no action to be brought on agreement in consid-
eration of, unless in writing, ic, . . 527
KliCORD OF.
city and town clerks to record and index l;icts
concerning, lOS
form of record, 108
return to be made by clerk to secretary, under
penalty, 1G9
certificate of clerk to be evidence of such record, 1G9
towns may make additional rules concerning
registration of, 170
registrars may be appointed in certain towns
to make record, &c., concerning, . . . 170
record of, to be kept by persons solemnizing, 530
copies of such record to be returned monthly
to town clerks, &c., in town where
solemnized, and where parties rcbide, 53^
to be presumptive evidence of marriage, l(j9, 530
penalty for neglect to make such returns, . 530
Divorce from.
provisions respecting, 531-537
(.See Divorce.)
MARRIAGE CONTRACTS.
contracts may In' made l>y parties before mar-
riage, concerning property of either
party, 541
what provisions may be made in, 541
limitations in, to take effect at time of marriage,
&c., 541
schedule and description of property described
in, to be recorded therewith, 541
when and where to be recorded, 541
if not recorded within ninety days after mar-
riage, to be void, 541
MARRIED WOMAKT.
General Provisions.
to follow and have settlement of husband, if he
have any in the state, 390
INDEX.
103'
MARRIED "WOMAN — rovtimtcf?.
settlemuut oi; not lost by inarriu^a', if husband
lias none, 300
miiy maiiitnin action fordaniaycs a^'-aiust person
unlawfully ^cllinij liquor, after notice
from her, 4-H
policy of life insurance for benefit of, to iuurc
to her separate use, &c.*, 330
trustee may be appointed in such case, to
hold interest oi\ &c., 330
administration on estatu of, to be granted to
hor husband, unless, &e., 483
intestate, husband of, entitled to residue of per-
sonal estate after payment of debts,
&e., 48o
divorced, may assume maiden name, 533
divorce for adultery by, when not to affect lejpt-
imacy of issue of marriage, 53-i
to be protected from restraint by husband
during pendency of libel, 534
not liable as accessory after the fact for felony
committed by Iiuslmud, 82G
entitled to dower, on divorce for adultery or con-
finement in state prison, &c., of hus-
band, 535
in what case entitled to lu-r ri'al estate on di-
vorce, 5-35
may recognize as a witness, 8.33
another person may recognize for, 833
penalty on, for burning dwelling, or certain
other property of her husband, . . . rOfi
may prosecute and defend suits commenced by
and against her before marriaap) * . . 000
may be witness in action against liflN^and,
founded on certain matters relating to
wife, 074
(See AUoicancCi Dower,)
Skpakate Rights, Liabilities of, &c.,
may iiuld property and earnings to her sole and
separate use, &c., 537
property of, so held, not subject to control of
husband, nor liable for liis debts, 537, 538
real cstjite of, not her separate property, how
conveyed, 538
may sell and convey separate property, carry
on business, &c., 538
when such conveyance not valid without assent
of husband, &c., 538
husband not liable for contracts of, in relation
to her separate property, &c., .... 53S
trustee may be appointed on petition of, to take
charge of her separate property, . . . 538
wages, &c., of, may be paid to, 538
receipt of, for income of her property, &c., valid
without husband joining, 53s
property of, received otherwise than from her
husband, not liable for Imsband's
debts, contracted after June 3, 1S55, . 538
having separate property, may be sued for debts
contracted before marriage, 538
husband of, married since June 3, 1855, not liable
for debts of, contracted before mar-
riage, 50^
may make will of her real and her separate per-
sonal estate, 538
will of, not to deprive husband of more than one
half of personal estate, without his
consent in writing, 538
not to Impair husband's rights as tenant by
the curtesy, without his written as-
sent, 539
87*
MARRIED WOMAN — coTj/rnT/crf.
husljiuid not authorized to convey property
to,
may release dower on sale of land by guardian
of her husband,
may join with guardian of husband in convey-
ance of her land,
proceeds of such sale, how disposed of, &c.. . .
agreement by, with guardian of husband, rela-
tive to disposal of such proct-cds,
valid,
damages awarded for land of, taken by railroads,
&c., how disposed of,
may join with guardian of husband in making
partition of her real estate,
guardian of, may join with husband in making
pai-tition of lier real estate,
may be put under guardianship for same cause
as if sole, 539,543,
guardian of, not to be appointed without notice
to Imsband,
not to have care, custody, &c., of, except
when husband is insane, Ac,
not to apply her jiroperty to support of hi-r-
self and fjunily, unless by leave of pro-
bate court, o3y,
may be appuintud to release dower and home-
stead in cjise of insanity,
proceedings in such cases,
when dower or homestead is so released, part
of proceeds of sale may be reserved for
use of,
such proceeds, how to bo invested, &c., for
benefit of,
when provision is made for, in lieu of dower,
estate, how conveyed, &c., if she is
insane,
dower of, Iiow released by guardian in such
case,
proceedings in probate court in such cases,
in what county to be had,
certified copies of decrees of court in such
cases to be recorded in county, itc,
where laud lies,
allowance to, out of estate of insane husband,
Iiow made,
contracts may be ma<U' before marriage to aq-
cure proptTty to
in such case, what to contain, when to be re-
corded, ttc,
Coining into state without husband, he
never having lived with lu-r in the
state, may make contracts, convey
propertj', Ac, in her own njime, as if
unmarried, Ac,
liable to be sued on such contracts, Ac, as
if unmarried
Coining into state with husband, to re-
tain ri;;Iifs and property previously
acquired,
subsequent rights and liabilities of, same as
if married in the state, 54],
Abandoned by husband, or he being sent to
st^ite prison, may be authorized to
sell and eimvey her real and personal
estate, an<l personal estate of husband,
in her right,
may use and dispose of such property
during husband's absence, &c., as if
unnntrried,
may be authorized to make contracts, &c.,
in her own name,
539
539
539
53d
539
539
539
530
544
539
539
:ho
540
540
540
540
540
540
541
541
541
541
541
541
541
541
542
1038
INDEX,
MABREED VJ'O'M.AN — cojitimfed.
authority su yrautod to continue till return
or dischargee ol" husband, 54'2
suits in which she is a party, not to abate by
husband's return, 542
judgment against, recovered in such suit,
miiy bo enforced against husband, . . 542
petitions of, may be filed and heard by su-
preme judicial court, in any county, . 542
MABSHAXi OF UISriTED STATES.
ixcniptt'd from st'rviug as juror, 070,080
MARSHALS.
jLt cattle shows, how appointed, and powers and
duties of, 378
MARSHES.
pru\ision8 for improvement of, 750-752
MARSHPEE.
District of, to continue to he district nnd retain
powers conferred by special acts, . . . 105
regulations concerning shell fish in, .... 433
Indians, appropriations, &c., for schools for, . 213
MARTHA'S VINEYARD.
land for lighthouse in, at Gay Head, ceded to
United States, 44
land and hospital in, ceded to United States, . . 44
laud at Holmes's Hole, for lighthouse, ceded to
United States, 4-i
land at Tisbury in, ceded to United States, . . . 45
MASKED BALLS.
penalty on persons setting up, &c., 404
offenders to be bound over to superior coui't,
and furnish sureties of the peace, &c., 404
MASONTC TEMPLE.
in IjDston, cicied to United States, 45
MASSACHUSETTS. (See Constitution.)
constituticni of, 13-iO
MASSACHUSETTS GENERAL HOSPI-
TAL,
payment to be made to, by life insurance com-
pani.'s, \-c 330
MASSACHUSETTS SOCIETY FOR THE
PROMOTION OF AGRICULTURE.
provisions respecting ])reiniunis offered by, . . 377
MASTER.
to be bound by indenture when he takes appren-
tice or servant, 549, 550
money, Arc, paid by, to be for use of apprentice, 550
complaint for misconduct of, may be heard and
determined in superior court, .... 550
may be heard with or without jury, .... 550
may be discharged from his contr.iet by court, . 550
costs, in such cases, how awarded and recovered, 550
liable to action on indenture, 550
damages recovered of, in such case, to be prop-
erty of apprentice, 550
limitation of action against, by apprentice, . , 551
death of, to discharge apprentice, 551
MASTER OF HOUSE OP CORREC-
TION.
to notify judge of insanity of prisoner, 878
to report poor couvicts, who have been confined
for three months, 878
t SVc Jfoitfio^ of' Correction.)
MASTERS IN CHANCERY.
now in office, to (continue, 010
not more than five in each county, to he ap-
pointed by governor and council, . . 010
to be sworn, and hold office for five years, . . , 010
to perform duties under direction of supreme
court, 010
fees of such, how taxed and paid, 010
reports of, to bear interest, 085
MASTERS IN CHANCERY -co«<m^^er/.
when all in the couuty are interested, or dis-
qualified to act in any matter, court
may appoint some other person, . . . CIG
may approve bonds to dissolve attachments,
proceedings in such cases, 632
proceedings of, to be finished after termination
of commission, 010
to finish cases in insolvency commenced before,
and to return all papers and records
in such cases to registers of probate
and insolvency, 001
witnesses, how may be summoned, and com-
pelled to attend before, and sworn, 072, 073
punishment of, for accepting bribes, 813
punishment for bribing, or attemptiug to bribe
them, 813
may authorize arrests on mesne process and ex-
ecution in civil actions, 033, 0.'J4
examine, discharge, or commit poor debt-
ors arrested, 035-040
fees of, in such cases, {m
may approve bail bonds, &4->
take depositions to perpetuate testimony, . 670
MATERIALS.
for carrying on trade or business, what exempt
from levy on execution and from at-
tachment, 624,688
MAYHEM.
punishment of, 792
attempt to commit, 793
MAYOR.
may make requisition for miHtia in case of riot, 116
duty of, in suppressing riotous and unlawful
assemblies, 815
penalty for neglect of duty, §15
with consent of aldermen, may remove con-
stable for gross misconduct, 160
if not elected, when chairman of board of alder-
men to act until, &c., 100, 167
when may hold other city offices, 107
exempted from liability to watch, 174
MAYOR AND ALDERMEN.
to have powers, &c., of selectmen in toAiTis, . . 100
vacancies in, by non-election, how filled, . ... loo
to issue warrants for elections to fill vacancies
in city offices, lOJi
to make lists of voters, and post them ten days
before elections, 65
to be in session to receive evidence of qualifica-
tions of voters, 50
to give notice of meeting on posted lists, . . . 56,57
to correct lists, 57
to require proof of naturalization before enter-
ing name of naturalized citizen on
list, 57
when not answerable for omissions of names, . 57
penalty for giving false answer to, 57
on,for neglect of duty, 57
to call meetings for elections, 58, OS, 09
in certain elections, to decide whether officers
shall be voted for on-one or more bal-
lots, 58
with city clerk, to examine returns of votes
made by ward officers, 59
penalty for neglect of duty as to elections of
members of congress, district-attor-
ney, &c., 09, 72
when may remove collector of taxes and ap-
poiut temporary collector, 87
to notify and draft enrolled militia upon order
of commauder-in-chief, 92
INDEX.
1039
MAYOR AND AliDEHMEN — coH^inwer?.
duties of, in organization of companies of mili-
tia,
to provide nrmorics for military companies, and
tr.uismit certificates of rent, &c., to
adjutant-general,
to provide carriages and camp equipage for
militia drafted incase of invasion, &c.,
duties of, respecting compensation of militia, .
may make rules for regulation of carriages, &c.,
to appoint agents to take census,
to appoint officer of watch, &c., when watch is
established,
may order watch, when none is established, . .
power of, at (ires, when firewards are not pres-
ent,
may appoint euginemen, &c., and discharge them
in places where there is no tire depart-
ment, irr,
may enforce vaccmation of inhabitants when
public health requires,
may appoint truant officers,
powers of, in relation to ways dedicated to pub-
lic, but not laid out and accepted, . . .
to cause permanent bounds to be placed at an-
gles of ways laid out by them, ....
to ascertain correct location of streets, &c., in
certain cases,
to regulate watercourses in public ways, &c., .
to determine damages occasioned by repairs,
&c., of highways,
may establish and grade sidewalks in certain
cases
powers and duties of, in relation to sewers and
drains,
to appoint measurers of grain and meal, ....
may appoint and remove weighers of hay, «&c.,
where provisions of statute are adopt-
ed by city council,
may establish regulations for survey of marble,
to appoint inspectors of milk,
may appoint weighers of coal,
to appoint persons to seize illegal measures, &c.,
of charcoal, &c.,
may license auctioneers, &c., . .
may make regulations restrjuning, &c., minors,
from hawking and peddling certain ar-
ticles,
duties of, respecting unclaimed effects of pas-
sengers in possession of common car-
riers,
to enforce provisions of game laws,
may grant permits to take oysters and other
shell fish from beds,
may grant licenses to plant and grow oysters, .
to appoint agents to sell intoxicating liquors
for medicinal, &c., purposes, annually,
penalty on, for neglect,
to prosecute for breach of bonds of such agents,
powers of, to abate certain nuisances, . , . 453,
may grant licenses to innholders, &c., and revoke
the same, 455,
to furnish summary of laws, relating to innhold-
ers, to persons licensed,
may grant licenses to keepers of intelligeneo
offices, dealers in second Iiand articles,
pawnbrokers, &c., 45r,
licenses for steam engines, &c., in certain
places, &c., and rogidate the use of
the same, 45S,
licenses for billiard tables, &c., and for the-
atrical shows, &c.,
W
170
247
250
MAYOB AND AIjDBBMEN — continued.
may examine steam engines and boilers, and
suspend or prohibit use thereof, . 459, 460
may remove steam engines, &c., as nuisances in
cert^iin cases, 460
to require unlicensed dogs to be destroyed, . . 462
proceedings by, in relation to raising or lower-
ing highway crossed by railroad, . . 357
to apply to county commissioners before laying
out highway across riiilroad, 353
powers, &C-, of, in relation to signboards and
gates, *tc,, at railroad crossings, . 300,361
certain acts and doings of gas-light compimies
to be under control of, 343
to designate where posts of telegraph companies
shall be located, 373
to assess damages to huid owners in such cases, 373
compensation of, for services, &c., 373
may oflur rewai'd, not exceeding five hundred
dollars, for arrest of certain ofleudcrs, 831
proceedings in such cases, where more than
one claimant appears, 831
words, wlu'n applying to Boston, to mean the
board of aldermen, 1G7
MEADO"WS, BEACHES, SAVAMPS,
MABSHES, LOW LANDS, &c.
huld by sevural proprieturs, how may be
drained, flowed, ifcc, 750, 751
person in possession to be deemed proprietor
when premises are mortgaged, . . . . 752
proprietors of, may petition superior court, set-
ting forth proposed improvements, . 751
court, on hearing, after notice given, may ap-
point commissioners to cause improve-
ments to be made, 751
commissioners to be sworn, to view the prem-
ises, give notice, Ac, 751
to prescribe measures for making improve-
ments, 751
power of, to erect dams, &c., to order lands
to be flowed, open ditches, remove ob-
structions in streams, &c., 751
to open floodgates of mills, and make pas-
sages through or round dams of tliird
persons, 752
may employ persons to perform the above
work, unless proprietor does it, . . . 751
shall apportion and assess expenses on pro-
prietors, and may appoint and give
warrant to a collector, 751
power, liability, and compensation of collector, 751
how commissioners shall apportion expense on
tenants and reversioners, .... 751, 752
expense paid by mortgagee, to be allowed him
as in case of other improvements, . . 752
damages caused by opening floodgates, &c., to
be determined and paid by commis-
sioners, unless, «tc., 752
commissioners to make return of their doings
to court, inclufUng account of money
assessed and collected, 751
appeal may be taken to superior court from any
doings of commissioners, 752
shall suspend proceedings on third persons'
liinds, 752
superior court may affirm, reverse, or alter or-
ders of commissioners, 752
shall determine compensation of commis-
sioners, 751
questions of fact, arising on the hearing of ap-
peals, to be tried by jury, on motion
of either party, 752
1040
INDEX.
/
MIEADOWS, &c. — continued.
COXSTUUCTIOX OF ROADS, &C., TO.
proprietorB, how authorised to establish roads,
drains, ditches, tunnels, and railways
to, over otiier lauds, 752
may apply to county commissioners, . . . 753
application, what to contain, 753
notice of, how given, . . . r 753
duty of commissioners, 753
parties aj;fgrievcd may appeal as in case of high-
ways, 753
improvement, when made, how repaired, . . . 753
MEAL. {See Grain and Meal.)
provisions rospot-tiug, 2G5
MEASURES. {Sec ini{/hts and Measures.)
provii^ions ri'spccting, 28i-2S6
MEASURERS.
of gniiu and meal, how appointed, 2C5
may be authorized to appoint deputies, . . 265
duties and fees of, and their deputies, . . . 2G5
jienulty on, for using false weights, .... 205
of wood and burk, to be chosen at annual towTi
meeting, unless selectmen authorized
to appoint, IGl
to be sworn, 161
to measure wood, &c., and deliver certificate
of quantity, 27S
foes of, and by whom paid, 278
MECHAlSriCS.
necessary tools of, exempted from taxation, . 74, 82
not exceeding one hundred dollars in value,
exempted from attacluncnt and execu-
tion, ..... GS8
MECHANICS' LIEN. {See Lien.)
lirovisions rosix'cting, 702, 708, 709
MEDICINES. { See Dnif/s.)
Inimlulcut adulteration of, how punished, . . . 823
MEETING-HOUSES, {^ec Parishes and lielig-
ious Societies,) 200-205
MERRIMACK RIVER.
buoys at mouth of, ceded to United States, . . 44
Half-tide and North rocks in, ceded to United
States, 44
MESSENGER.
of governor and council, how appointed, and
term of office, 134
duties and salary of, 134, 135
may employ an assistant, 135
duties and compensation of assistant, . . . 135
under laws relating to insolvent debtors, duties
of, 5S2, 583
fees of, and how paid, GOO
MESSENGERS.
of sL'uate ami house of representatives, compen-
sation of, 48
METALS AND ORES.
assayers of, how ajipointod, 274
duties and cnmpcnsation nf, 274
METHODIST EPISCOPAL CHURCH.
trustees of any society of, may bu(U)me corpo-
ration, 204, 205
powers of such trustees, 205
limitation of annual income, 205
organization of trustees, 205
copy of record of organization to bi' left with
town clerk, 205
MIDDLESEX COUNTY.
Chelsea, Nortli f'lulsea, and Winthrop, to vote
with, Tor county commissioners, . . 71,72
jurisdiction of, iTi common with Suil'olk, over
part of Charles Kiver, 144,145
MILE STONES AND MILE BOARDS.
puuishmeut for wilful, &c., removal, &c., . . . S03
MILITIA.
provisions concerning, in United States couBti-
tutiou, 4
governor to be commander-in-chief of, 23
not obliged to marcli out of state, except, &c., . 24
officers of, how elected, apijointed, commis-
sioned, and removed, 24,32
I. ENROLLED 3IIL1TIA.
who to be enrolled, 91
jjersou convicted of infamous crime to be dis-
enroUed, 91
who absolutely exempted from enrolment, 91, 92, 93
who conditionally exempted, 93
assessors, annually, to make list of persons lia-
ble to enrolment, 91
town clerk to transmit return to adjutant-
general, 91
names of persons liable to enrolment to be given
by tliemselves and others, uuder ijeu-
alty, 91
enrolled militia not liable to active duty except
in case of war, &C., 92
in which case may be ordered out by com-
matidcr-in-chief, 92
how to be drafted upon order of commander-
in-chief, 92
penalty on soldier for not appearing or pro-
duciug substitute when drafted, ... 92
when so ordered out, &c., how organized, of-
ficered, and equipped, 92
towns to furnish ammunition, Arc, under pen-
alty, when ordered by commander-in-
chief, 92
II. VOLUNTEER MILITIA.
1. Orgaxizatiox, &c.
active, to be composed of volunteers, 94
in ease of war, riot, &c., first ordered iuto ser-
vice, 94
number of companies not to exceed one hun-
dred and twenty, 94
no new company to be organized if thereby
whole force exceeds iive thousand, . . 94
to be apportioned among counties according to
poi)ulation, 94
if county does not raise its quota, number may
be completed in other counties, ... 94
members of, to do duty for five years, unless,
&c., 94
not to be arrested on civil process whtn per-
forming military duty, Arc, 09
exempted irom serving as jurors, C80
what constitutes a legal enlistment, 94
organization and choice of officers of new com-
panies, 94
to be arranged into divisions, brigades, &c.,
and numbered, 94
Cavalry, companies of, of what nuu\ber to
consist, 94
when may be attached to brigades, 94
squadron of, to consist of two companies, . 94
regiments of, not less than four compauies, 94
Cadets, cumpauiea of, of what number to con-
sist, 94
Infantry and riflemen, companies, of what
number to consist, 94
Foot artillery, compauies, of what number to
cunsist, A'C, 04
when may be attached to brigades, 04
INDEX.
1041
MlijlTlA — coutimted.
Companies inconveniently located, how to re-
ceive orders and make returns, .... 9i
attacliod to divisions, how to ^ecei^■c orders
and make returns, W, 93
may be disbanded by commander-in-chief
for failure to comply \\'itlilaw relative
to uniform, equipment, &c., 95
if, when twice ordered, they neglect to
elect officers, ... - 95
if reduced to less than thirty-two privates
for six months, 95
if less than thirty-two privates appear for
duty, 95
articles of agreement of, 107
Bands may be enlisted by commanders of regi-
ments, &c., 95
of what number to consist, 95
to provide tliemselves with uniforms and in-
struments, under penalty, 95
by wliom taught and commanded, 95
Soldiers, how discharged, 95
not to aid in seizing fugitives from sen'icc, 741
penalty for so aiding, 741
not to apply to any act of military obedi-
ence and subordination, 7i'2
2. Officers, Appointment, Election, Quali-
fication, AND DlSCIIARCiE.
Commander-in-chief, governor to be, , . . 23
gLiieral powers of, 23
may order out militia in case of war, inva-
sion, riot, A-c, «X', 109, 110
power and duty of, as to organizing and dis-
banding companies, 94, 95
aids of, 24, 95, 97
may arrange militia into divisions, bri-
gades, &c., 94
to commission all commissioned officers, . . 98
orders of, by whom distributed, 101
may sell certain military stores, lOi
may detail officers at any time to examine
armories, 104
may order out any portion of militia for es-
cort, &c., lor
may reverse judgments of courts martial, . 119
may call boards of officers to settle military
questions, 120
may appoint commanding officer when elec-
tors fail to choose, 90
Adjutant-general, (Sec 3,) 24,97,101
Quartermaster-general, appointment and
rank, 05, 97
wlion office vacant, who to act, 00
Major-general, how chosen or appointed, aud
commissioned, 24, 95, 97
how notified of election, 98
when to signify acceptance of office, .... 98
staiT, of what to consist, how appointed, and
rank, 05, 97
Brigadier-general, how chosen or appointed,
and commissioned, 24, 97
staff, of what to consist, appointment and
rank, 95,97
Regimental field officers, of what to consist,
and by whom elected, 96, 97
staff, of what to consist, appointment and
rank 90, 07
non-commissioned staff, of what to consist,
and how appointed, 90,97
Battalion field officer, who to b(^ aud how
elected, 90, 97 ,
131
MUjITIA — conftmted.
staff", of witat to consist, appointment and
rank, 96,97
non-commissioned staff, of what to consist,
aud Iiow appointed, 00, 07
Company officers, of what to consist, and how
elected, 9G, 97
non-commissioned officers, of what to con-
sist, how appointed, and warrants,
9ii, 97, 98
clerk, how appointed, 97
to be a sergeant, and have iippointment cer-
tified on warrant, 96, 98
to keep company roll and orderly book, . 108
to record orders and notifications in or-
derly book, 105, 108
duties of, how performed wiieu office is
vacant, 97, 98
without officers, how to be commanded, 00, 07, 100
refusing or neglecting to elect officers, &c.,
how commanded, until, &e.. .... 97, 99
when commanding officer of division, bri-
gade, &c., is absent, itc, next in rank
to command, 96
Commissions, to be given by commander-in-
chief, 24,98
rank to be determined by date of, 98
how, when of evcu date, 9S
day of appointment, &c., to be expressed in, 98
how to be transmitted, oo
loss of, how supplied, US
refusal to accept, or qualify, to be indorsed
on, and returueil to adjutant-general, . 09
of staff officers, when to expire, 101
who ineligible to office, 93
if person ineligible is chosen, commander-
in-chief to appoint another, 98
Election of officers to fill vacancies to he or-
dered yearly, 98
notice of, when and how to be given, ... 98, 99
who to preside at, P9
roster, *c., to be produced at, 09
may be atyoumed twice, 99
who to be deemed elected, and how notified, 99
acceptance, when to be signified, 99
new, to be had at same meeting, if person
chosen refuses to accept, 99
may be ordered after refusal to choose offi-
cers, unless, &c., 09
returns of, how and to whom made, .... 99
upon refusal to choose at, commander-in-
chief, &c., to appoint, 99
by whom called in companies without com-
missioned officers, 99
candidates not to treat %\ith intoxicating
liquors, 99
officers, &c., going to, &c., not to be arrested
on civil process, 99
acceptance of new office, to vacate one pre-
viously held, 99
Oath of commissioned officer, form of, and by
whom administered, lOO
to be certified on commission, loo
form of certificate, loo
of clerk of company, form of, and by whom
administered, loo
to bo certified on warrant, loo
Discharge may be granted upon request of
officer, 100
resignation not to he approved between May
and Xovember, unless for urgent
reasons, loo
1042
INDEX.
'MIIjTVIA.— continued.
remedy w-lien approval is unrcasonnbly re-
fused, 100
resignation, not to be made by officer under
arrest, 101
of uon-commissioued officer and clerk of
company, 101
uoT to be g-iven without officer's request,
except, &c., 100
may be given mthout request when unfit to
discharge duties or is a convict, ... 100
when he has removed to inconvenient dis-
tance from his command, 100
wlicn absent more than a year without
leave, 100
upon address of legislature, lOO
upon sentence of coui-t martial, 100
wlien corps is disbanded, 101
upon accepting- appointment in United States
army, 101
of staff officers, K)i
officers to perform duties until discharged, . 101
may bo removed as legislature prescribe, 32
3. Adjutaxt-General.
how appointed, 24, 97
to be iuspector-general, 95
to act as quartormaster-gencral wlieu that of-
lice is vacant, 00
rank of, 95
tenure of office, 101
to give bond, 101
salary of, .
101
101
clerk of, and salary,
to have custody of maga2ines, muuiiions of
war, &c., 55
to distribute all general orders, joi
to attend commnuder-inehief at reviews, . ... 101
to furnish blank rolls and returns, and blanks
for company orders, loi
to make abstracts of returns of officers of bri-
gades, &c., annually, loi
to make returns, annually, of militia, &c., to
president of United States and com-
mander-in-chief, 101
to transmit to selectmen, &c., certified band
and company pay rolls within twenty
days of receipt thereof, 101,103
to make, annually, certified roll of officers en-
titled to pay, and ascertain amount
necessary to reimburse towns, and
submit the same to auditor, 102
to lay before auditor, annually, an account
of expenditures, 102
to distribute arms, equipments, &c., furnished
at public expense, 102
may sue for damage to articles so furnished, 102, 103
to receive arras, &c., from disbanded compa-
nies, 103
may permit certain field pieces to remain in
possession of towns, 4tc., 102
to audit and allow claims for rent of armories, 104
duty of, in regard to compensation of officers
and soldiers, 111,112
to present to auditor accounts of expenses as
inspector-general, 112
to examine and certify all military accounts, . . 113
such accounts to be allowed by auditor, &c., 113
not to be allowed, &c., unless presented
within the time prescribed by law, . . 113
to report annually, to legislature,expeu8es of
his office, 141
'MILITIA — CO, It allied.
4. Arms, E<jriPMENTs, Equipage, &c.
Uniforms to bo such 'as proscribed by com-
mander-in-chief, 102
officers and soldiers to provide themselves
with, Tinder penalty, 102
exemiJtod Iroiu attachment, &c., 102
Tents and other camp equipage to be furnislied
by state to commanders of divisions,
brigades, &c., ]02
such officer to be rosponsible therefor, ... 102
h(tw released from responsibility, .... 102
Colors to bo furnished to regiments and battal-
ions, 1Q2
commanding officers responsible, 102
commander of brigade may draw order for, 103
Arms aud equipments to be iurnishod to com-
panies on ajiplication, ]02, 103
to be kept in an armory, io3, 104
commissioned officers responsible for, . . . 103
how discharged from responsibility, ... ia3
to be received by adjutant-general when
companies are disbanded, 103
officers to provide themselves with, .... 92
Instruments of music to be furnished, as
commander-in-chief shall order, . . . 103
commander of brigade may draw order for, 103
commanders of companies responsible, . . . 103
Cannon, Ac, to be furnished to artillery, ... 103
when in state of war, &c., ammunition may
be furnished for target practice, 103
commissioned officers accountable, lOJ
expenses of battery, &c., how paid, .... 103
Scott's Infantry Tactics, &c., to be furnished
to ccrtaiu officers, i03
such books to be delivered to successors, . 10:J
Military stores may be sold, &c., by com-
mander-in-chief with advice of council, 104
at arsenal in Cambridge, to be examined,
&c., annually, 104
5. Armories.
armories to bo provided by selectmen, ^tc., , 104
certificate under oath of necessity of, name
of company and rent to be transmitted
to adjutant-general, 104
penalty on towns for false certificate, . . 1(4
claims for rent of, to be audited by adju-
tant-general, 101
claims allowed, to be paid by state, ... 104
may be examined, &c., by officers detailed
for that purpose, loj
location of, when company is formed from
different places, 104
fi. Orders and Notifications.
Orders, general, division, brigade, &c., by
whom distributed, loi
for encampiueut, how and by whom issued,
104, 105
Notifications for company parade and elec-
tions of officers, liow and by wliom
given, 104, 105
how proved, 115, no
blank forms to be furnished by adjutant-
general, 101
how long before time appointed, 105
in case of invasion, &c., 105
to companies without commissioned offi-
cers, how given, 105
penalties for not giving, according to order,
and how recovered, 104, 105
INDEX.
1043
MILXTIA^ contijiucd.
orders and notifications to be recorded by
clerk in orderly book, 105
7. Discipline, Trainings, Inspection, .vsd
Camp Duty.
Discipline to be eame as in United States army, 105
Elementary drills may be ordered by com-
manders of regiments, Ac., 105
on two separate days bi-tween middle of
May and middle of July, 105
penalty for non-attendance, how recovered, 105
Encampments, orders for, how and when
issued, 105
when to be held, HJo
to continue three days, lOii
place of, to be designated by commander of
troops to be iissembled, 105
and time of, if not designated by commander
of division, 105
no ground to be occupied for, without con-
sent of seleetmou, &c., 105, 100
officers and soldiers not obliged to march
more than fifteen miles, except, , , . lOlj
parade of larger body than brigade to be or-
dered by commander-in-chief, .... loO
troops to be inspected, reviewed, exercised,
&c., at. 100
penalty on nou-commissiunod officers and
privates neglecting to appear, .... 100
company roll calls, under whose super-
vision made, 100
rank of corps in the field, lOO
when distinct corps parade together, senior
officer present to command, 100
company without commissioned officers pa-
rading witli otiier troups, how com-
manded, 97, 100
inspection of regiments, &c., by brigade
major and inspector, lOG
officers and soldiers may drill in camp in
fatigue dress, lOO
Parade, bounds of, may be fixed by com-
mander, 100
punishment for intrusion within such
bounds, lOG
officers and soldiers not holden to do duty
on election days, except, &c., 100
penalty on officer for parading company on
election day, Iqq
troops may be ordered out by commander-
in-cliief for escort duty, Ac, 107
music at such parades, how paid fur, . ... 107
voluntary parades allowed, ' 107
and such as prescribed by articles of agree-
ment of companies, Ac, 107
remedy for breach of articles of agreement, 107
penalty on non-commissioned officer and
private for deficiency in arms, &c., at
parade, required by law, 107
penalty on soldier for having arms loaded
with ball on parade, 10?
for discharging musket, &c., without or-
der from officer, 107
for disorderly conduct, Ac, 107
for quitting guard, company, &c., .... 107
in companies without officers, 107
8. EosTERs, Orderly Hooks, Rolls, and
Retlrns.
Hosters and orderly books of divisions, bri-
gades, regiments, &e., by whom to be
l^ept, 108
MILITIA— rnniinnetL
Orderly book ofeonipnny, Iiow and by whom
kc-pt 105, lOS
fines, &e., to be recorded in, 108
always to be open to inspection of officers, , 108
Roll of company, how and by whom kept, , , lOS
to l)e revised annually in 3Iay, 108
Heturns oi camp duty by companies to be
made in duplicate, by coraniandera, . lOS
to be certified by commander of regiment
and stafl" officer supervising roll, . . . 108
one to be delivered to brigade-major, and
the other transmitted to adjutant -gen-
eral, 108
of companies attached to divisions, how cer-
tified, 108
of alphabL-ll/al pay rolls of companies, to be
ma<-le under oath, within ten days, . . 108
pay roll not to contain name of private who
iias done duty as musiei;m, los
not to exceed the number allowed to com-
pany. 108
penalty for neglect in maldng, and for false
return, 108
by masters of regimental, &c., band, to be
made and transmitted to adjutaut-gen-
eral within ten days after parade, . . 108
to be certified by commjuidiug officer to
whom band reported for duty, .... 108
penalty for neglect and lor false return, . . 109
by commanders of regiments, &e., of field and
stair officers, on last day of camp
duty, 109
and delivereil to brigadc-miyor or inspecting
officer of camp, 109
penalty fin- neglect and for false return, . . 109
by brigade-major, to be made to commander
of brigade, within twenty days after
camp duty, 109
to be \ ransmitted by him, under penalty, to
commander of division within thirty
rfiiys, 109
what to contain, 109
of roils of field and statf officers of brigade
to be transmitted to commander of
division, &e., 109
penalty for neglect and for false return, . . 109
fc commanders of divisions to make return of
the state of their divisions, 109
to transmit certified roll of field and stafi*
officers to adjutant-general, 109
penalty for neglect jmd making false re-
turn, 109
9. Calling out in case of War, Invasion,
Riot, &c.
militia may be ordered out by commander-in-
chief, to repel invasion, &c., 109
when may be ordered out by commander
of division in such case, lOO, 110
when draft is ordered, how to be made, . 110
officers to be regularly detailed, 110
company without officers, by whom com-
manded, &c., 110
penalty on soldier neglecting to appear,
^^•■> 110
soldiers to take provisions if ordered, . . 110
Belcctmen, &c., to furnish carriages, camp
equipage, &c., no
penalty on to^vii for neglect, no
officer receiving articles from town, &c.,
to be responsible therefor, llQ
1044
INDEX.
MILITIA — continued.
in case of riot, Arc, troops may be called
out, by order of governor, or precept
of magistrate, &c., 110,815,816
■whose orders to obey ia such cases, . . . 816
form of precept, 110,111
pcuultics for disobedience, Ill
troops to appear armed and equipped as for
iuspcction, Ill
10. Compensation.
Compensation to general, field, and staff offi-
to inspectors, .ind adjutants of regiments,
&c.,
to officers and soldiers of companies, . . . .
to members of bands,
how computed, disbursed, &c.,
not to be allowed, imless full duty is per-
formed, except, &C.J
nor unless performed personally,
for travel in attending elementary drills, . .
of detachment on special duty,
to oflieers for travel in attending elections, .
to officers composing courts martial, courts
of inquiry, and military boards, for
travel and attendance,
to ■\'\itnes8es, for travel and attendance be-
fore such courts, &e.,
fees for snbpwnas, &c., same as in civil cases,
not allowed for military guard unless or-
dered by officer appointing court, . .
of militia in actual service same as regular
troops of United States,
additional, for unilbrm,
when discharged, to be allowed pay and
rations to their respective homes, . ,
relief to soldiers disabled while performing
duty, 112,
military accounts, &c., how examined, certified,
and paid,
11. Excuses.
iExcuse for non-appearance may be granted by
commanders of companies if applied
for vt'ithin twenty days after training,
&c., 113
not to avail on prosecution for fine, unless >•
proved to have been made within
time, &c., 113
clerks to be informed of, by officer allow-
ing, 113
not to be granted for deficiency of equip-
ment, 113
certain conditional exemptions not to be,
milcss, &c., 113
12. FiXKs AND Penalties.
Fines and penalties to be recorded in com-
pany orderly book, lOS
on boarding-house keepers, itc, for not giv-
ing names of persons liable to enrol-
ment, 91
on commanders of regiments, »tc., for neg-
lect to make return of field and staff,
&c., 100
on commanders of brigades for neglect to
transmit returns, &c., 109
on commanders of divisions for neglcbt,to
make returns and false return, .... 109
on soldiers for not appearing when drafted
for actual service, 92
MULITIA— continwd.
on towns for neglect to provide ammunition,
&c., when required, 29
for false certilicate of selectmen concerning,
armories, ]04
on mend>er of band for not providing himself
with uniform, &c., 95
on master of band for not making return of
duty, and for false return, 100
on officers and suldiers for deficiency in imi-
form, 102
for not attending at elementary drills, . . 105
for breach of articles of agreement of com-
panies, 107
on non-commissioned officers and privates
for absence from company election, OS, 09
failing to notify companies for parades
and elections, 104, 105
neglecting to appear at encampment, . . . 106
for deficieucy in arms, &c., at pjirades, . . 107
for quitting guard, company, &c., .... 107
for intrusion within bounds of parade, . . . 100
on officer for parading company on election
day, 100
commander of company for neglect in
making returns of camp duty, &c., . . 108
for refusing to obey order in case of riot, 111
on soldier for having arms loaded with bull
on parade, 107
for discharging musket, ic, while on, or
going to, or returning from, parade,
without order, • . . 107
for disorderly conduct and neglect of duty
on parade, 107
for neglecting to appear when drafted in
case of invasion, riots, &c., . . . 110,111
in company witliout officers, how recov-
ered, &c., lOr
on brigade-major for neglect in making re-
turns and false return of camp duty,
&c., 109
on towns for neglecting to provide carriages,
&e., in certain cases, 110
13. Prosecutions for Fines and Penalties.
Fines under constitutions of volunteer compa-
nies, how collected and disposed of, . 113
clerk to make information for recovery of, . 114
form of information, 114
summons to be issued within nine months,
and served seven days before time of
hearing, 114
forms of, to be issued by justice of the
peace and police court, 114,115
defendant may plead not guilty, 115
complainant to prove his appointment and
qualification as clerk, 113
to produce roll and prove enlistment of
defendant, 115
to prove order to notify meeting, and no-
tice to defendant, 115
offence to be proved, in case of absence,
burden of proof on defendant, .... 115
secondary evidence, when received, . . . 115,110
clerk, &c., may be witness, 110
commanding officer may be witness, .... 110
exemptions for infirmity, Iiow proved, . . . 110
execution, when to be issued, 110
form of execution, 116
complaint, &c., may be amended, without
costs, 116
continuances may be allowed, 116
INDEX.
1045
IdlltlTl A — continued.
when complainant not liable for costs, . . . 110
no appoal unless forfeiture exceeds ten dol-
lars, exclusive of costs, 110
complaints by other officers, how prosecuted, 110
imprisomneut on execution not to exceed
six days, 110
judg:meut debtor to remain liable, and ex-
ecution may be sued out against prop-
erty, UG
money collected for fines, how disjjoscd of, . 117
14. Courts JIartial.
complaints, on which courts martial are or-
dered, to specify oflenco, be signed,
&c., iir
no officer to be tried for olfenee committed more
than a year before complaint, .... 117
nor on charge preferred by sohlier, except, &c., 117
respondent to be arrested, to have copy of
charges, and notice, ten days before
trial, 117
courts may be adjourned, 117,118
of whom to consist, and when held, .... 117
only one general and one division court mar-
tial in one division in one year, . ... 117
general, by whom appointed, and to try
whom, 117
division, by whom appointed, and to try
whom, 117
members of, how and by whom detailed, . , 117
provision in case officer detailed is unable
to serve, 117
no officer superior in rank to the president
to be detailed, 117
officers ordered to detail members of, to
make return, &c., 117
officers on, to rank by seniority of commis-
sion, 117
judge-advocate of each division to attend gen-
eral and division courts martial, . . . 117
if unable to attend, another to be appoint-
ed, 117, 118
if not present at opening of court, president
may appoint, • 118
Buch advocate to finish trial commenced, . . . . us
if president does not attend, ofllcor Iiighcst in
rank to preside, 11*^
if marshal is not present at opening of court,
president may appoint, 11^
members to be sworij, US
oath of president, members, and judge-advocate, 118
challenges, how and when made, A-c, Hg
certain causes of, when to be considored as
waived, H^
if accused neglect to appear, &c., tri.il may pro-
ceed, &c., 118
witnesses summoned, &c., must appear, «to.,
under same penalties as in criminal
cases, llfi
oath of, lis
evidence of default in returns, ll'.i
copies of documents, how authenticated, . ... 119
all proceedings, evidence, .^-e., to be submitted
to the court in writing, 110
votes, how to be taken ; two thirds required to
convict, 119
sentence, 119
order to be preserved in court, 119
records of trial, &c., certitied by judge-advocate,
to be transmitted to officer ordering
court 119
MILITIA — coniin ucd.
and by hiiii transmitted, with approval, &c., to
office of adjutant-general, 119
pay roll to be transmitted to same office, ... ii<j
copies of records to be furnished by adjutaut-
geueral, 119
judgment may be reversed by commauder-in-
cbiei, 119
commissioned officers, for what offences may be
tried by court martial, 119, l;iO
fines imposed, to be prosecuted by judge-advo-
cate, I'JO
costs against judge-advocate, in such case, how
paid, I'^o
1j. UoAKUS of O: FlCIiKS.
may be called to settle military questions, . . , r^o
10. Gknki'.ai. and Division Colkts of Lnquirv.
courts, of whom to consist, how ordered and
organized, 120
vacancies, A:c., how lilled, y^i
oath of president, members, and judge -advocate, 121
witnesses summoned, sworn, A^c, as in courts
marti:il, 12I
judge-advucate to attend, &c., yn
proceedings to be recorded and tnuisinitted as
in courts marti;U, rjl
no guard unless uecebs;u-y for protection, ... i:;i
17. KULIiS AND AltTlCI-KS FOK t-iOVKUMNG THE
MlLlTiA LS ACXU.Vl. tililCVUJli, . . 1:^1-126
TVTTT.K-.
inspectors of, how appointed, 274
to be sworn imd give public notice of ap-
puiutuient, 2i-i
to keep :m oflice and books lor recording
names of persons wlio bell milk, . . . 274
may enter stores, &c., and analyze milk, . . 274
to prosecute violations of these provisions, 274
compensation of, 274
measures, cans, &:c., used in sale of, to be sealed
by wine measure, 275
capacity of can to be marked by sealer, .... 275
penalty for neglect to record name, &c., iu in-
spector's books, 275
for neglect to place name on carriage used in
conveyance of, 275
for buying or selling, by other than sealed
measures, &c., 275
for adulterating, &c., 275
for offering for sale, when produced from
cows fed on deleterious food, .... 275
MILL DAMS. C'S'ee Vams, Mills.-)
MILLEKS.
duties and compensation of, "Gl
to keep scales, &c., and weigh grain, &.C., if re-
quired, 761
penalty for neglect or refusal so to do, . . . 761
toll for grinding grain, not to exceed one six-
teenth thereof, 701
MILL POIsTD.
penalty for wilfidlv drawing water from, . . . SOi
MILL PRIVILEGES.
may be divided among tenants in common by
suits in equity, or on petition for par-
tition, 706
MILLS.
I. Erection and Kegulation of.
and dams to raise water for working them,
may be erected, &c., on streams not
navigable, 754
1046
INDEX.
MILLS — contimied.
ebaltuot be erected to injury of lawfully exist-
ing mill on same stream, 754
of any mill site ever lawfully occupied aa
such, unless the i-igUt be lost, &c., . . 754
shall not be placed on land of any oue, without
g-rant, &c., 755
now lawfully existing, not alTected by sUitute,
except as expressly provided, .... 757
punishment for wilful injury to wheels, gear, or
machinery of, S04
how execution may be levied on, wiicn not di-
visible, 517, 518
height of water, and time of flowing' others'
lands, liable to i-egnlation by a jury, , 755
action for dannigeg canned by erection of, <S:c.,
not to be snstiuued at common law,
except, &c., 757
owner of laud liowed by, may make comphunt
to superior court to obtain compensa-
tion, 755
separate and joint owners may join in com-
plaint, and have separate dam-
ages, 758, 759
contents of svich complaint, when to be filed,
and what notice thereof shall be given
to mill owner, 755
by whom notice may be served, 755
such complaint not abated by death of either
party, 759
respondent may tender, in court, past damages,
and offer yearly compcusatiou for the
future; with what effect on costs, if
complainant do not accept, 75S
if complainant accept sum tendered, he shall
have judgment therefor ; and with
what effect, 75S
complainant may accept past damages, and pro-
ceed to trial for the future ; and vice
versa, 75S
what may be answered in bar of such com-
phiint, 755
respondent shall not answer that the laud is
not injured by mill dam, 755
other pleadings, and trial on such complaint,
to be as in actions at common law, . 755
if the complaint be supported, »&:c., c^urt shall
issue warrant for a jury to determine
matter thereof, 755
cither party may appeal to supreme court from
decision on answer in bar, 755
if supreme court decide for complainant, case
shall be remitted, and superior court
shall issue warrant for jury, 755
proceedings on such warrant to be like those on
complaint for damages caused by lay-
ing out, &c., highways, 755
trial may be iu court before the jury, as in other
civil actions, if parties agree iu writ-
ing, 750
in such case, cither party may have a view, . . 75ii
jury to consider damage to complainant's land
not flowed, as well as to that flowed, 750
to allow, by way of set-off, benefit caused to
comiilainant by the dam, 750
may return vurdict that complainant is en-
titled to no damages, 75G
such verdict of, not a bar to new complaint
for subsequent damages, 758
to assess damages for three years only prior
to complaint filed, and to the time of
verdict, 750
MILLS — continued.
when shall decide how high, and for what
periods, dam may be kept up, .... 756
shall assess yearly damages, and also a sum
in gross, 756
complainant may elect, within three mouths, to
take sum in gross, 756
shall enter such election on the recoitl in
tlie clerk's office, 7S«
mill owner shall, within three months after
BHch entry, yay or secure such sum,
Arc, or lose benefits of statute till he
pay, 756
complainant, and his assignees, (if he do not
elect to fcdvC gross Bum,l entitled to
receive yearly damages from all future
owners, »tc., of mill, 756
damages and gross sum a lien on mill, &c., for
three j'ears, 756, 757
may be recovered by action of contract, , , 757
what may be recovered, 757
full costs, although amount recovered is
less than tWL'Uty dollars, 757
execution on judgmtut for damages, ifcc, may
be leviud on mill. &c., and the prem-
ises sold like an equity of redemption, 757
may be redeemed within one year, on payment
of sum paid, and twelve per cent, in-
terest, 757
such sale of, how far valid against assignees of
mill owner, 757
verdict for damages, ttc, subject to control of
court, like verdicts in common law
triids, 757
may be set aside, and now trial ordered, . . 757
if complaint be abated, or judgment on verdict
be reversed, new comi>laint for same
cause may be brought within one year, 759
either party, or his assignees, may apply, and
within what time, for a new assess-
ment of damages, &c., 757, 759
provisions for an offer of increased compensa-
tion, or to accept a smaller, and the
effect thereof on costs, if new jury do
not award more nor less, 758
if such offer be accepted, and memorandum
thereof recorded, &c., in clerk's office,
it sliall establish the future yearly
damages, 758
II. Regulation of Dams.
how made by order of county commissioners,
&c., 759, 760
{See Dams.)
III. Repair, REDfiLnixo, &c., of.
when joint owners of, do not all agree to repair,
majority may do it at expense of the
whole, 7<10
manner of calling and warniug meeting of pro-
prietors, to consult respecting re-
pairs, A'C, 760
at such nuetiug^, unijority in interest may take
measures for repairing, &c., 700
if a wife or ward be a proprietor, the husband
or guardian may act at such meeting,
and in calling it, 700
each proprietor shall pay his proportion of ex-
penses of repair to those who advance
them, 760
proprietors, thus making advances, shall have
lien therefor on rents and profits, or
may sue, &c., 760
INDEX.
1047
MILLS — continued.
provision for apportioning' expenses of repairs,
itc, on tenants and reversioners,
&c., 700, 701
for lien on rents, &c., after reversioner
comes into possession, 700, 701
tenant in tail, and mortgn^ec in possession, re-
g-iirtled as proprietors, for above pur-
poses, 701
mortgagor liable for what is not recovered uf
mortgagee, 701
sums paid fur repiurs by mortgagee, to be Jil-
iowcd by mortgagor, 701
sums due from one propriulur to another for
advances, may be recovorud by an ac-
tion of contract, or by bill in equity, . 701
Buch bill in equity may be brought in supreme
court, 701
court to apportion amount recovered among the
pIuintifTs according to tlieir resi^ective
rights, 701
foregoing provisions not to affect agreements
respecting repairs, &c., 701
how execution may be levied on, when not di-
visible, 517,518
punishment for wilful, Ac, injury to, MM
for flowing water bai-k on, HH
MTiSriSTEIlS OF THE GOSPEL.
I'XL'iiiplL'd from military duty, 03
fruiu liability to watch, 171
from service as jurors, 080
when, together with deacons, &e., to bo a cor-
l)uration to tiike grants to their
churi'hes, 205
may tnke in aueeeasion any parsonage land, &c., *^05
may prosecute and defend actions relating to
such land, 20G
conveyance by, of land held in succcssiou, valid
only for time of ministry, unless, &c., 200
limitation of entry by successor, after disseisin
of, 775
to endeavor that youth regularly attend school, 217
settlement of, in towns, how a».'qnired, 391
powers and duties of, as to solemnizing mar-
riages, &c., 530
penalties on, for violating- provision rcspectifig
solemnizing marriages 530
fees of, for solemnizing, ttc, marriages, .... 7.S7
may visit prisoners, as prisoners desire, .... 8(i:j
iii;iy bo present at execution of criminal, if, &c., 847
when executors, how administration of estate
to be conducted, 4Sti
property held by, in trust, may be sold and con-
veyed, in certain cases, 502
sale of real estate of, by guardians, for payment
of debts, 512
for maintenance and investment, 513
residing out of state, sale of real estate of, 513, 5H
ccrtilicute of intention of marriage not to be
issued to, except on application of
parents, &c., 520
unless there is no parent or guardian in
this state, 520
marriage of, not to be solemnized without con-
sent of parents, &c., 5110
guardians of, Iiow nominated and appointed, , 513
may be appointed by will of father, .... 513
to have custody and tuition of, and care of
estate, &c., 513
to continue in office until ward is twenty-
one years of age, 543
] MINORS — continued.
father, or mother of, if competent, to have cus-
tody of person, and care of education,
&c., 543
property of, whose father is living, when may
be applied to his support, .... 545, 546
real estate of, may be sold by guardian, in such
case, under license, 546
may be bound as apprentices, or servants, and
by whom, 549
power of mother to bind her children to cease
upon subsequent marriage, and not to
be exercised by herself, or Imsband,
&c., 549
when bound by parent or guardian, minor's
consent to be expressed, &c., , , , . 549
when may be bound by overseers of poor, . . . 549
not to be bound, except by indenture of two
parts, 549, 550
one part of indenture to be kept for, 550
money, &c., allowed by master, to be secured
to, 550
duties of parents, Ac, in relation to, when ap-
prenticed, 550
complaint lor misconduct of, or of master, how
heard and determined, 550
may be dist.-harged from apprenticeship by su-
perior court, 550, 551
when discharged, may be apprenticed anew, 550, 551
costs in such cases, how awarded and recov-
ered, 550
damages recovered in action against master, to
be the property of, 550
action against master, by whom brought, . . , 550
not bound after master's death, 551
absconding, may be arrested and returned, or
imprisoned, 551
proceedings in such case, and costs, of whom
recoverable, 551
jurisdiction of appointment of guardians for,
and settlement of estate of, given to
probate court, 574
may recognize as witnesses, 833
other persons may recognize for, 8^33
MnsrOT'S LEDGE.
(.(.■ilcd to United States, 45
MISCARRIAGE.
unlawful procuring or attempting to procure,
how punished, 818
punishment for aiding and assisting, 818
advertising means for procuring, 818
MISCHIEVOUS, &c.
taking, &c-, of another's property, but not with
intent to steal, how punished, .... 801
injury to property, how punished, 803-807
MISPRISION OF TREASON.
how defined and punished, 790
MISTAKE.
fraud, and accident, suits iu cases of, may be
brought in supreme judicial court, in
equity, 559
MISTRESS.
provisions relating to masters of apprentices,
to ap]jly to, 551
MODERATOR.
of town meetings, to be chosen, except at na-
tional, state, district, and county elec-
tions, 160
to be chosen by written ballot, 161
in choice of, town clerk, &c., to preside, with
power and duty of moderator, .... IGO
powers and duties of, 160
1048
INDEX.
MODERATOR— continued.
to receive votes of all persons on voting lists, . 5S
not answerable for refusing, when name not on
list, 5S
penalty on, lur examining names on ballot be-
fore poll is closed, 100
may administer o;tths, in open meeting-, tu offi-
cers then chosen, 100
shall poll voters, &c., if seven voters question
his declaration of any vote, unless, &q., ]('>0
no person to speak without leave of, 100
may order disorderly jiersou to withdraw, after
notice, 100
and may order such persons, upon refusal to
withdraw, to be continod, &c., .... 100
penalty on person refusing to withdraw, ... IGO
of meetings in watch districts, to be chosen,
with powers of moderator of town
meeting, 174
of meetings in fire districts, to be chosen, with
powers of moderator of town meet-
ing, 180
of meetings of proprietors of wharves, and real
estate lying in common, powers, &c., 3S0
MOIST AMOY" POINT.
in Lliirustable county, land on, ceded to United
States, 44
MOIMET.
congress may coin, and regulate value of, .fcc., . 4
to be paid from state treasury only on gover-
nor's warrant, except, &c., 24
sums of, how computed, 30
at interest, more than owner pays interest for,
taxable 74
of account, to be dollar, cent, and mill, and ac-
counts in public offices, &c., to be kept
accordiugly, 292
charges, &c., otherwise made, not vitiated, but
to be reduced to dollars, ttc, 292
Interest of, to be at the rate of six per cent, a
year, 292
when more than six per cent, is reserved,
contract not void, but threefold un-
lawful interest forfeited, 292
defendant to recover full costs, in action
on such contract, 292
if more than six per cent, is paid, tlu-eefold
unlawful interest may be recovered
back, 292
action for such recovery, to be brought
within two years, 292
MONTH.
how construed, 51
MONUMEWTS.
to be erected at every angle of lines between
contiguous towns, at joint expense of
towns, 15S
at angles, &c., of highways, when laid out, &e., 244
punislimi-nt for ^vilfnl, iVc, removal of, .... S03
MORTGAGES OF REAL ESTATE.
suits conv'cruing conveyaucis in the nature of
mortgage may be brought in supreme
court in equity, 559
to the commonwealth, money duo on, may
be demanded and received by treas-
urer, who may give discharge, . . . . 717
may be foreclosed, or redeemed, as other
mortgages, 717
treasurer may make entry, or bring action
to foreclose, 717
suit for redemption to bo brought in the su-
preme court, in Suffolk county, eer-
MORTGAGES OP REAL ESTATE
— continuid.
vice how made, and other proceedings
therein, 717
tenancy in common not created by, ...... 407
separate deed. &c., of defeasance, when con-
strued to be a mortgage, 71G
to be recorded or not to defeat absolute con-
veyance, except, &c., 407
notice of, to be given by grantor in subsequent
conveyance, before consideration is
paid, &c., 467
grantor liable in damages for neglect iu such
case, 407
not defeated by subsequent rights of homestead, 525
held by banks, may be attached and taken on exe-
cution, 308
held by insurance company, may be attached
or taken on execution, 322
lands mortgaged, &c., bow seized in such cases, 308
damages to real estate, subject to mortgage,
how assessed when taken for railroad, 353
may be discharged by entry on margin of rec-
ord, &c., signed by mortgagee, &c., . 4C8
such entry to have effect of deed of release,
&c., 4G8
liability of mortgagee for refusing to dis-
charge, 463
in hands of executors, &c., be considered per-
sonal assets, 489
if such mortgage is redeemed, executors, &c.,
to release, meantime to hold in trust, 490
mortgagee, not in possession, may pay taxes
in certain cases, 85
in possession, liable to pay taxes in certain
cases, 85
entitled to deed from purchaser at sale for
non-payment of taxes, upon tender ,&c., 85
entitled to receipt for payment of taxes, and
may add sum pjud to mortgage, ... S6
Buch receipt recorded in registry of deeds to
be notice of payment, &c., 86
liability of, for refusing to discharge mort-
gage on request, &c., 408
mortgagee of an undivided interest concluded
by partition among owners, 702
real action founded on mortgage to allege seisin
to be in mortgage, C54
Foreclosure of.
mortgagee or his assigns, after condition broken,
may obtain possession by peaceable
entry, or*by action, 712
an entry may be made, or action brought, by an ^
assignee of the mortgage, whether
such assignment is by deed, or by
operation of law, 712
such possession obtained in either way, and
continued three years, shall foi'cver
foreclose the right of redemption, . . 712
certificate of peaceable entry to be made on
deed by mortgagor, or, by affidavit of
two witnesses, and recorded in regis-
try of deeds, 712
not effectual unless such certificate is' recorded
within tbirtydays, 712
■writ of entry to foreclose, may be brought iu
supreme or superior court, .... 553, 562
action may be brought against tenant of freehold,
and mortgagor may always be joined, 712
mortgagor not liable for costs if he has uo in-
terest and makes no defence, 712
INDEX.
1049
MORTGAGES OF HEAL ESTATE
— continue<f.
plaintiff to declare on his own seisin in mort-
gag-e, 654,712
if it appears that plaintiff is entitled to posses-
sion for breach of eou(htiou of inort-
ga<fe, conditioual judgment shall be
entered on motion of either party, . . 71-
if defendant is neither mortgagor, nor entitled
to hold under him, conditional judg-
ment not to be rendered, 712
judgment in all cases may be for possession as
at common law, unless conditional
judgment is moved for, 712
when conditional judgment is to be entered,
court shall inquire and determine how
much is due plaintiff, 712
Buch judgment to be, that if defendant within
two months pays to plaintiff sum so
found due, with interest and costs,
mortgage to be void, and defendant to
hold premises ; otherwise that plain-
tiif have execution for possession, . . 712
if condition of mortgage is for doing some-
tliing other than payment of money,
or if part only is due, judgment to be
varied accordingly, 712
mortgagee, or person churning under Iiim, may
recover possession by entry or ac-
tion, before condition broken, when
no agreement to contrary, 713
in such case, if the debt is paid afterwards,
or the mortgage redeemed, rents and
profits to be accounted for, 713
when entry is so made, the three years for fore-
closure not to begin to run until after
condition is broken, and certain w^rit-
teu notice given to mortgagor or per-
son ehiiming under him, 713
after such entry, mortgagee may make a new
entry or bring an action, notwith-
standing he lias possession, 713
certificates of such notice, and of sucli new en-
try, to bo made and recorded in like
manner as in case of an original entry, 713
foreclosure may be opened if mortgagee af-
terwards recovers judgment for part
of his debt by reason of value of
premises being less than sum dueliim, 715
suit to open foreclosure to be brought within
one year after such judgment, .... 716
mortgagee in possession, when liable to pay
taxes, 85
REDEMrXIOX.
suits for, may be brought in supreme or supe-
rior courts, 714
if brought in superior court, an appeal may
be had, as in other cases, 714
when bill in equity is inserted in writ, what shall
be deemed commencement of suit, . . 714
mortgagor, his heirs, devisees, executors, or ad-
ministrators, after condition broken,
may redeem if redemptiou is not fore-
closed by three years' possession, . 713, 715
may redeem .after such possession and foreclos-
ure opened, if mortgagee afterwards
recovers judgment for part of debt on
account of value of premises being
less than sum due on debt, 715
in such case, suit for redemption to be brought
withiu one year after such judgment, 716
88* 132
MORTGAGES OF REAL ESTATE
— continiiefl.
assignees of insolvent corporations may, with-
in sixty days after their appointment,
redeem mortgages foreclosed while
proceeding in insolvency, and before
their appointment, 599
if mortgagee, or personclaimingundcr him, has
had jjossession, he shall account for
rents aud profits, and be allowed for
sums expended in rcprurs, &c., . . . 715
on such account, balauce found due on either
side, how paid, 715
jjcrson entitled to redeem to pay, or tender
sum due, or perform other condition,
and pay cost if suit is brought, . . . . 713
tender and payment may be made to guardian,
aud he may execute a release when
person entitled thereto is under guar-
diansliip, 715
may be made by executors, administrators,
heirs, or devisees, 715
tender may be made at any time before or after
entry, and witliiu the three years lim-
ited for redemption 713
if tender is not accepted, mortgagor, or those
claiming under him, may recover
premises by suit in equity, 713
if not accepted, foreclosure not prevented, un-
less a suit for redemption is com-
menced within one year after tender, 713
if in such suit phiiutiff alleges that he has ten-
dered or offered to pay sum due, lie
shall pay amount to clerk for party
entitled thereto, 713,714
suit may be brought by executors, administra-
tors, heirs, devisees, upon tender made
by deceased, 715
l>laiutiff entitled to redeem on certain terms, al-
though a previous tender was insuffi-
cient, 714
right of redemption may be taken on execution, 516
proceedings in levy of execution on right of, 517, 518
right may be redeemed by debtor when so
taken, &c., 521
may be sold on execution, &c., 522
liability of mortgagee, Ac., for refusing to dis-
charge mortgage after performance of
condition, on request, 468
persons entitled to redeem may, within time
limited for redemption, bring a suit
tlicr.?for without previous tender, . . 714
may therein offer to pay the sum which
may be found due, or to perform other
conditions of mortgage, 714
court, after commencement of suit in term lirac
or vacation, may determine what sum
not in dispute is due,, and order its
payment to mortgagee or clerk, . , . . 714
new parties appearing, duriugpendcncy of suit,
to be interested, maybe summoned in,
and made parties to proceedings, . . . 715
suits may be commenced and prosecuted by
executors, administrators, heirs, and
devisees, 715
Decree of redemption, if plaiutift'is entitled
to redeem, court shall determine sum
due, or what other acts are to be done,
and enter a decree that ujjou paying
sum, or performing such acts, within
a specified time, plaintiff shall hold
the premises discharged of mortgage, 714
1050
INDEX.
MORTGAGES OF EEAL ESTATE
— continucif.
if mortgagee has not unreasonably neglected
to render an account, court may also
allow him twelve per cent, interest
from expiration of the three years
after entry, 7H
if plaintiff refuses or neglects to accept the
money or other thing according to de-
cree, money may be left with clerk,
and after performing terms of decree,
execution for possession may issue, 714,715
if defendant has received, from rents and protits
or otherwise, more than is due on
mortgage, judgment and execution
may be awarded agiunst him for the
balance, 715
in such case, if there are several defendants^
judgment and execution may be award-
ed agidnst them jointly or severally, . 715
if money tcuderod and brought into court exceeds
amount due on mortgage, or if any
amount is awarded to plaintiff for
rents and profits or costs, how same
to bo paid, 715
if mortgagee, or person claiming imder him, re-
ceives more than is due on mortgage,
and no suit for redemption is brought,
balance may be recovered back in an
action of contract, 715
if after levy of execution on judgment for pos-
session, the amount due and the costs
are paid, discharge to be entered on
record or release given, 715
when mortgage is redeemed after an attachment,
and before judgment on the original
writ, attachment not affected, G25
BY RAILROAD Corporations.
how road and franchise may be mortgaged, 3G5, .3GG
trustees and bondholders under, meetings of, , 300
how made to common wealth to secure loan, &c., 3G7
{See Railroads.)
Mortgages vrn:n Power of Sale.
when conditional judgment is entered on suit
t>o foreclose, a decree of sale may be
entered instead of execution issuing, 7IG
all parties interested in equity of redemption,
including married women who may
have dower, to be notified, 710
notices to be given and other acts done according
to the power, and the order of court, . 710
party selling shall, within ten days, make re-
port thereof on oath to the court, and
file same in clerk's office, 716
com-t may confirm sale, or set it aside and order
a re-sale, 710
any person iutcrcsted may intervene, or be sum-
moned, and be heard, 710
order of court confirming sale to be conclusive, 71G
instead of suit, mortgagee, or person churning
under him, m;iy give the notice and do
all acts authorized by the power, . . . 710
. within thirty days after such sale, affidavit of
facts, with copy of notice, to be re-
corded in registry of deeds, 710
affidavit or office copy may be admitted as evi-
di'ucc, 710
. such sales to bar married women who in mort-
' gage released dower, whose husbands
executed the same before marriage, 710, 717
MORTGAGES OP REAL ESTATE
— voniinuriL
power of attorney in the mortgage not im-
paired or annulled by a sale of the
property by mortgagor, 710
MORTGAGES OF ' PEBSOWAL PROP-
ERTY.
not valid except between the parties, unless it
is recorded, or mortgagee takes and
keeps possession, 7rtO, 7G7
to be recorded where mortgagor resides at date
of mortgage, and where he then prin-
cipally transacts his business, .... 700
if mortgagor resides out of state, to be record-
ed wliere property is, 700
mortgages, transfers, &c., of vessels, need not
be recorded, 707
contracts of bottomry, &c., and transfers, &e.,
of ships or goods at sea need not be
recorded, 767
mortgages of goods at sea need not be recorded
if mortgagee takes possession on their
arrival in this state, 767
city and town clerks' duty, as to such mort-
gages, and their fees therefor, .... 767
to be considered as recorded when left in clerk's
office for that purpose, 707
when mortgaged property is redeemable, and
by whom, 707
proceedings for its redemption and recovery, . . ICu
mortgagor may replevy, if property is not re-
stored on tendering the sum due and
charges, 707
notice of foreclosure by mortgagee or assigns,
how given, 707
notice, with the affidavit of ser%ice, to be re-
corded where mortgage is recorded, . 707
the originals, or a copy of the I'ocord, to be
evidence of giving' such notice, . . . 707
right to redeem foreclosed if money is not paid,
&e., in sixty days after notice, .... 767
property held by, how attached, and proceed-
ings thereon, 627, 628
how attached, and mortgagee summoned as
trustee of defendant, 028
how held by trustee process, 727
fraudulent concealment of property subject to,
how punished, 803
mortgagor assenting to concealment so pun-
ished, 803
mortgagor selhng without consent of mortga-
gee, how punished, 803
MOTHER.
when to inherit children's property, 474
illegitinuite child to inherit property of, ... . 474
when heir to illegitimate child, 474
may bind children as apprentices, 54y
MOTioisrs.
to dismiss for defect of form, decisions on,
when to be final, 506
for new triid, exceptions may be taken to judg-
ment of court thereon in matters of
law, 560
MULES.
where taxable, 70
less than a year old, exempted from taxation, . 75
found going at large contrary to law, itc, to be
impounded, 185, 186
MURDER.
in first degree, how defined and pimished, . . . 791
in second degree, Iiow defined and punished, . . 791
degree to be foimd by jury, 791
INDEX.
1051
MURDER — continued.
forras of mdictment not to be changed, .... 791
distinction between, and petit treason abolished, 791
body of person executed for, may be dissected,
unless, &c., 701
to whom to be delivered for that purpose, . 791
by fighting duels, 791, 792
punishment for assault with intent to commit, . 793
attempts to commit, 793, 794
indiftmcut for, may be found at any period, . , b39
MUSICIAJSrS. (See Militia.)
bauds of, how enlisted, &c., 9j
MUSTER.
military, and other public gatherings, penalty
for gaming at, 437
booths used for gaming, illegal sale of liquors,
within one mile of, how removed, &c., 454
MUTUAL ACCOUNTS.
how adjusted in insolvency proceedings, . . 584, 587
how, in trustee jiroeess, 723,724
how may be set ofl" in actions, CG9-671
limitations in action ou, 777, 778
MUTUAL INSURANCE COMP ANTES.
provisions respecting, 324-329
N.
NAILS.
wrought and cast, and brads, how mad: and
packed, 275
to be packed free from waste iron, 2:5
casks for, quality, and how branded, 275
forfeited, if olTercd for sale or shipped, &c.,
without branding, 275
penalty for mixing refuse with, 275
for counterfeiting brand, 275
for shifting contents of casks after brand-
ing, 275
for shipping out of state casks of, not
branded, 275
NAMES.
of others not to be used in business without
their written consent, 298
illegal use of, restrained by supreme court, . . 298
Change of, api)lications for, to be heard and de-
termined by probate court, 548
not to be made, unless for reasons satisfac-
tory to court, 548
except in case of divorce, &c., .... 533, 548
notice of application for, to be given be-
fore decree, 548
of decree of, to be given, 548
on return of proof of, certificate of name
to be given by court, 54S
of child adopted, may be decreed at time of
adoption, without notice, &c., .... 548
returns of, to bo made annually by judges to
secretary, 549
to be published, in tabular form, with acts
and resolves, 50, 549
women divorced may resume their former
names, 533
NANTUCKET.
lighthouse, itc., on, ceded to United States, . . 44
laud in, ceded to United States, 45
selectmen of, to act as county commissioners, . 148
may raise money for county expenses, 148
town treasurer of, to be county treasurer, . . . 149
certain provisions respecting fencing unen-
closed land not to apply to, 184
regulations concerning shell lish in, 433
County of, jurors in, liable to be drawn and
serve once in two years, 080
attachments in, on writs returnable else-
wliere, or in other counties on writs
returnable therein, to continue sixty
days ;ifter judgment, 025
NASHAUN ISLAND.
hind in, for li^^lithouse, ceded to United States, 44
NATUT^ALIZATION.
congress may establish uniform rule of, ... , 4
NATURALIZATION — con^/nwerf.
supreme ami superior court alone have jurisdic-
tion of application for, 618
clerks of no other courts in this state to act in
such cases, 018
proceedings for, to be in open court, and to be
entered of record, 018
penalty on clerks for filing papers or acting in
cases of naturalization except as pro-
vided by law of this state, CIS
Naturalized citizens not entitled to vote, nor
eligible to office, until after two years'
residence, &c., 39
proof of naturalization to be required by select-
men, &c., before putting nameonlist
of voters, 57
NAVY.
power of congress to establish, 4
NAVT YARD.
lund for, in (harlestown, ceded to United States, 44
NEAT CATTLE.
when taxable, 70
less thim a year old, exempted from taxation, . 75
to be impounded for being at large contrary to
law, &c, 185, ISii
(See AnimalSt Beasts.)
NEGROES.
punishment for selling the service or labor of,
when kidnapped, 791
NETS.
of fishermen, when exempt from levy on cxecu-
tl(m and attachment, 024,666
NE'W BEDFORD.
hind in, eeded to United States, 44, 45
P;ilmer's Island in harbor of, coded to United
States, 45
Egg Island Shoal in harbor of, ceded to United
States, Ao
penalty for boarding vessels in harbor of, with-
out leave, except by pilot, &c., .... 20
what to be deemed limits of harbor of, for cer-
tain purposes, 290
penalty for taking fish within harbor, &c., of,
by persons living out of state, .... 431
NEWBURY.
land iu, for breakwater, ceded to United States, A'.
NEXT FRIEND, {see Guardian,) 54';
NEXT OF KIN.
what to inlierit, 474, 4^,'i
^vhen liable for support of jiaupers, .... 3U2, 39;;
NEW TRIAL.
In civil cases, may be granted by supreme and
superior courts at anytime after judg-
ment, 56
1052
INDEX.
NEW ^RlAJLi — contimied.
may be had in cases where trial by jury is
waived, as in other cases, OCl
when motion for, is overruled, court may en-
ter judgment as of term when verdict
was rendered, 0S5
In criminal cases, how may be ^^ranted
within one year, 843
when ordered, where may be had, 844
WID'S POnSTT.
land ;it, fodod to United states, 45
UIX'S MATE.
fi'dod to I'nited States, 45
WIGHT TIME.
what shall be deemed, as regards commission of
offences, 841
NIGHT -WAXiKEES.
common. how arrested, secured, and punished, 8'-0,S2I
imprii^oned, how discharged as reformed, or
bound out, 859
NOBILITY.
titles ul', not to bo L,a'anted by Congress, .... 5
NOBSQUE POINT.
land on, ceded to United States, 44
NON COMPOS,
inchulcd in words " insane " and " lunatic," . . 51
NON JOINDER OP DEFENDANTS.
by reason of cause of action barred by limita-
tion, not to abate action, 779
amendment may be made introducing new de-
fendants, 5U8, 057, G58, 759
NONSUIT.
of executor or administrator on being cited, &c.,
in suits commenced by deceased, effect
of, and liability for costs, 048
may be entered on motion of court, when local
action is brought in wrong venue, . . GOl
may be entered when a party refuses to answer
interrogatories, or to amend or ex-
punge the same, COO
costs on, must be paid, or second suit for same
cause to be stayed or dismissed, ... 781
defendant not to have, when caused by his
insolvency, 780
NON TENTJBE.
may be i)lcaded in abatement or iu bar, .... G93
NORTH CHELSEA.
to vote with IMiddlosex county for county com-
missioners, 71, 72
returns of votes in, for county commissioners
and register of deeds, to whom made, 59
county commissioners of Middlesex to have ju-
risdiction in, 14S, 242
not to bo taxed for county purposes, 78
to have no interest in county property, .... 144
NORTH ROCKS, &c., IN MERRIMACK
RIVER.
ceded to United States, 44
NOTARIES PUBLIC.
appcintuient, removal, and tenure of office of, . 32
may admiuistor oaths, 131
fees of, 7.->7
upon deatli, resignation, &c., records, &c., to be
deposited in clerk's office, 131
clerks to take charge of records, &c., of, and
make and certify copies thereof, ... 131
penalty on, and on executors, &c., of, for neg-
lect to deposit, Ac, 131
penalty for destroying records, &c., of, .... 131
iu other states and countries may take acknowl-
edgments of deeds of land in this
state, 467
NOTES.
provisions respecting, 293
(.See BankSj Promissory Notes.)
NOTICE.
on petitions to general court, how to be given,
.tc, 47,48
to defendant, absent, or residence unknown, or
upon insufficient service, . . . 605, 62.3, 646
{See- Absent Defendant.)
of the impounding of cattle, how given, .... 186
by finder of lost goods, &c., to be given to
town clerk and recorded, 425
before allowing wills proved in another state or ,
country, 478
by executors, &c., of their appointment, how
given, 491
of sales of real estate by executors, &c., under
license, 511,512
of sales of property on mesne process and exe-
cution, 628, 029, OSS, 690
{Sec Attachment^ Execution.)
of proceedings in probate courts, and courts of
insolvency, to be in such newspapers
as parties select. 577, 582
but court may order same to be published in
one additional paper, 577, 583
of appeals from probate courts, 575
from courts of insolvency, 585,592
NOXIOUS ANIMALS.
money may be granted by towns for destruction
of, 158
NUISANCES.
boards of health may make regulations respect-
ing, and may abate, &c., 188-190
penalty for violating such regulations, . . . 18S 189
expenses of removal of, by towns, &c., how sued
for, and recovered of individuals, . . 193
from offensive trades, may be prevented and re-
moved by superior court, 194
persons injured in comfort, »S:c., may have
action for damages, 194
intoxicating liquors, ttc, when declared to be, . 448
burnt and dangerous buildings may be adjudged, 453
proceecUngs in such cases, 453
powers of mayor and aldermen or selectmen
to abate, in such cases, 453, 454
buildings resorted to for prostitution, gamiug,
&c., to be deemed, 454
booths, &c.,used for gaming near public shows,
&c., when may be abated as, 454
steam engines and furnaces erected and used
contrary to law, to be deemed, .... 459
injurious to public health, how removed by
order of court, 189
may be stayed, &c., by injunction from
superior court, or any justice there-
of, 180,190
suits concerning, whether relating to real or
personal estate, may be brought in su-
preme court iu equity, 559
in action of tort, when ])laintiff prevails, court
may enter judgment for removal of
nuisance, and for damages and costs, . 710
may issue execution for damages and costs, and
a warrant for removal of nuisance, . . 710
such warrant may be stayed, not excoediug six
months, on defendant*s motion, that
he may remove it, 710
on recovering judgment iu second suit, for con-
tinuance or repetition of niusance,
plaintiff may of right have judgment
for abatement and removal, . , . 710,711
INDEX.
1053
ITUISANC^S — CO ntimied.
expense of abating-, to be collected by officer na
damages and costs arc collected on ex-
ecution, 711
when buildiugfs and otber things are removed
ns nuisances, they may be sold as on
execution, and proceeds applied to
pay charges of removal, 711
after conimcnceraent of suit in equity conceru-
ing a nuisance, supreme court, or auy
justice thereof, iu term time or vaca-
tion, may issue an injuuction to pre-
vent or stjiy waste, 711
WmSAWCES — cr>jj/inwcf7.
when an action of tort for a nuisance is pend-
ing in supreme or superior court, the
court, or any justice thereof, may in
like manner issue such injunction, , . 711
such injunctions may be dissolved by court
issuing same, or auy justices thereof,
in term time or vacation, 711
KTX^SrCtrPATIVE ■WILL.
\\iifn may be made by soldiers and mariners, , 477
to be sold by dry measure, under penalty, . . . 264
O.
OATH.
to include " afl&rmatione," where they may by
law be substituted for oaths, 51
may be administered by senators aud represen-
tatives, as members of committees, . . 49
commissioners to take, &c., iu other states
and countries, 13^
usual mode of administering, heretofore prac-
tised, to be observed, 073
how administered to persons not believing iu
the existence of God, 073
affirmations may be substituted for, in case of
Quakers and persons having conscien-
tious scruples, &c,, 073
may be administered in all cases by justices of
the peace, except where different pro-
vision is made, 010
Of office, form of, UO, 33
of public officers, how administered, . , 131, 13:i
Of attorneys at law, on admission to practice, 015
Of jurors iu civil aud criminal cases, . . . 682, &il
Of grand jurors, 8.37
For relief of poor debtor, form of, .... 037
Judges and registers, and assistant registers
of probate and insolvency, . . . . OU 1-003
In insolvency proceedings, may be admin-
istered by judge, and in certain cases
by register, 581
to be t;iken by insolvent debtors, »S:c., at sec-
ond meeting of creditors, .... 590, 598
when may be taken by debtor subsequent-
ly 592
required on proof of claims against insolvent
debtors, 5S4, 585
may be taken before justices of the peace, . 585
In probate proceedings, of accountants, may
bo administered by judge out of court,
or by a justice of the peace by him
authorized, &c., 570, 577
in all other cases, may be administered by the
register or a justice of the peace, . . . 577
OATS.
stiindard weight of bushel of, 205
OBSCENE BOOKS AIsTD PRINTS, &c.
punishment for importing, printing, selling, re-
ceiving, having in possession, &c., , . 819
search warrant may issue for, 819,830
to be kept as evidence, aud then destroyed, . . 819
prosecutor to conviction to liavc half the fine, . 819
OFFENCES.
to be prosecuted by indictment, except, &e., . . 790
punishment of, how stayed by reparation of in-
jured party, 834-839
OFFENCES — continued.
pt-r.'^ons to be held to answer for, upon indictment, 790
upon information authorized by statute, . . 790
by police courts imd justices of the peace, . 790
■ by courts martial, 790
not to be convicted of, except by verdict, plea,
&c., 790
not to be punislted for, unless duly convict-
ed, 790
former conviction or acquittal of, 790
concealing and eompounding, how punished, . . 814
Against the sovereignty of the conunon-
wealth, 790
Against the person, 7'.U
Against property, 795
Of forgery and against the currency, . . 807
Against public justice, 811
Against the public peace, si.'*
Against chastity, morality, and decency, 817
Against the public health, 822
Against public policy, 823
OFFENSIVE TRADES.
phices for exercise of, how assigned, .... 193,194
assignment of places to be recorded, IW
when ijlaces assigned for, become nuisances,
assignment may be revoked by supe-
rior court, 194
person damaged in comfort by, may sue for
damages, 194
exercise of, may be forbidden, ]'.n
orders therefor, how served on occupant, .... 194
penalty for disobeying such order, I'.H
appeal to superior court, and trial by jury, . . . r,M:
to be suspended, pending appeal, 194
form, return, and effect of verdict, 1!4
costs in sucli casop, Itt4
OFFER OF JUDGMENT.
how nnty be made bj' defendants in suits at law
and iu equity, 000, 001
to be accepted within ten days after notice, un-
less further time is allowed by court, GOO
if not accepted, or plaintiff does not recover
more damages and costs, how recov-
ered and execution issued, .... 000, 601
not to be evidence in any other suit, nor in any
subsequent proceeding in same action, 001
OFFICE.
right of people to secure rotation in, 15
person fighting duel, or sending or accepting a
challenge, or promoting a duel, inca-
pable of holding, &c., 792
forfeited by conviction, aud sentenced to state
prison, 640
1054
INDEX,
OFFICE — continued.
reversal of conviction by writ of error, to cause
restoration to, S40
pardon not to work such restoration, unless so
expressed therein, S40
tenure of, by commission, to be expressed
therein, 27
judicial, except of justices of the peace, to be
held during good behavior, .... 17, 27
incompatibility of, .30, .3:1, 41), 149, 742
public oflBccs to be closed on certain holidays, . 49
OFFICEBS.
of L'uited States, not to receive presents, titles,
&c., 5
public, accountable to the people, 14
to submit to speaker of house of representa-
tives estimates of expenditures re-
quired for their department, 139
disbursing money, to make annual report to
auditor, 139
duties of, in making purchases and incurring
liabihties of state, 140
travelling expenses of certain, not to exceed
three and a half cents a mile, .... 141
salaries of, when and how payable, 140
receiving fees, costs, &c., to make return, annu-
ally, to secretary, under oath, . . 128, 129
penalty for neglect to make such returns, . . . 129
of civil government, list of, to be published
with acts and resolves, 50
not to be disqualified from acting by reason of
being an inhabitant of any town in-
terested in suit, 618
liabiUty of, for escape of debtor arrested, &c.,
on execution, 641
must state true reason of arrest to person ar-
rested, 789
must exhibit precept on request, 789
penalty for false answer, or refusal to answer,
or to exhibit precept, 789
arresting on pretended process, &c., how pun-
ished, 790
public, falsely accusing person of an offence,
that he may be held as a fugitive
slave, to be disquaUfiod, 793, 71>4
receiving fees, to furnish specific account to
person paying, 788
penalty for neglect, 788
serving writs, to indorse fees thereon, 788
not to purchase or have any interest in certifi-
cates of witnesses in criminal cases, . 788
rescuing prisoner from, how punished, .... 813
voluntarily suffering prisoner to escape, how
punished, 813
negligently suffering prisoner to escape, how
punished, S13
refusing to receive prisoner, how punished, . . 813
refusing to arrest prisoner, how punished, . . 813
refusing to assist, how punished, 813
falsely nssuming to be, how punished 814
tliose disguised to hinder, how punisilu'd, . . . 814
taking rewards for omitting duty, how pun-
ished, 814
recording officer, extortion by, how punished, . 814
of state prison, of whom to consist, and salaries
of, 870
certain public, may commence or prosecute ac-
tions on contracts, &c., with prede-
cessors, f>50
CFFICIAIi INFORMATIOlSr.
intended for tlie public, to be published in
newspapers, by secretary, 50
OILS.
what to be deemed pure winter-pressed, or sum-
mer-strained, spermaceti, 275
what to be deemed whale, 275
what to be deemed tiglit-pressed, 270
liability of seller of adulterated, under false
name, 275, 271}
unless mixtui-e is disclosed to buyer, . , , 270
vessels of loss than five gallons in such case, to
be laljoUcd with proportion of mix-
ture, 276
penalty for selling adulterated, as pure, with-
out notice to buyer, 276
how and to wliose use recovered, .... .276
test of, to be Harris's oleometer, » 276
OIL OF VITRIOL.
wilful, &c., injury by, to houses, how punished, 801
ONIONS.
standard weight of bushel of, to be fifty-two
pounds, 278
mean weight, how to be ascertained, 278
penalty for selling ^nthout ascertaining weight, 278
when these provisions not to apply, 278
OPERATIVES.
wages of, ill mauul;^eturing establishments, how
recovered of stockholders, 386
certain claims of, privileged debts when debtor is
insolvent, 5i>4, 595
ORCHARDS.
wilful and malicious injury to, how punished, . 806
how, when committed on Lord's day, , . . 806
ORDERS.
grace on, when payable in the state at a future
day certain, 294
not, when payable on demand, 294
for payment of money, within this state, dam-
ages on, when protested 294
ORDINANCE.
as applied to cities, to bo synonymous with
by-law, 52
ORES.
how to be assayed, «S:c., 274
punishment for digging up, &c., without li-
cense, 805
ORNAMENTAL TREE ASSOCIATIONS.
may be formed in any county, town, &(■., by ten
or more persons, 378
powers and privileges of, 378
may hold real and personal estate not exceeding
ten thousand dollars, 378
ORNAMENTAL WOOD.
and ship timber, 271
{See Lumber.)
ORNAMENTS.
of widows and children, to be allowed to them
in settlement of estates of deceased
persons, 489
OVERSEERS OF THE POOR.
to be chosen at annual town meeting, 160
to be sworn, 161
to be directors of almshouses, if others not
chosen, 171
powers and duties of, in relieving paupers, &c., 392
to have the same authority over paupers as
masters of almshouses, 392
may remove to almshouse children suffering
from neglect, &c., of parents, .... 392
to provide for immediate relief of persons hav-
ing lawful settlement in other places, 393
to support, &c., indigent strangers, and bury
them, in case of their death, 393
may notify, in writing, overseers of place where
INDEX.
1055
OVEKSEERS, &c,~ continued.
pauper has settlement, and request his
removal, 394
provisions coneorning such notifications by, and
service thereof, -IIH
may take effects of deceased paupers to reim-
burse expenses of support, <tc., . . . 304
to prosecute and defend suits concerning pau-
pers, in behalf of their towns, .... 31M
to return, annually, to secretary of common-
wealth, statement of paupers, &c., . . 394
form and contents of such return, 394, 395
penalty on, for not making return, 395
"to perform duties of superintendents of alien
passeng'ers, where there is no superin-
tendent, 400
may complain in bastardy case when woman re-
fuses to complain, 404
may bind as apprentices children chargeable to
their towns, &c., 549
duty of, to inquire into treatment of children so
bouml, 550
OVERSEERS OF HOUSES OP COR-
RECTION. (See Houses of Correction,)
powers and duties of, 858-868
OWISTERSHIP.
of property, in whom it may be proved in pros-
ecutions for offences relating to real
or personal estate, 841
OYSTERS.
pt^iuilty for unlawfully taking, from beds, &c., . 432
permits to take, may be granted by selectmen,
&c., 432
may be taken at certain seasons without per-
mits, for family use, 432
vessels, boats, &c., having them illegally on
board, may be seized, 432, 433
to be discharged if owner, &c., pay penalty
before prosecution, 4:J3
prohibitions concerning, not to extend to In-
dians, 433
licenses to i)lant and grow, may be granted by
selectmen, &c., 433
shall describe flats and creeks so appropria-
ted, and be recorded by city or town
clerk, 433
fees of mayor and aldermen, or selectmen,
and clerk, 433
rights of persons licensed, and penalties for
trespassing thereon, 433
P.
PAGE.
the word defined, 788
PAGES.
of senate and house of representatives, . . . 133,134
PALMER'S ISLAND.
laud on, coded to United States, 45
PAPER.
to be packed in reams, half reams, or quarter
reams, 2rr>
printing, may be packed in parcels of two reams, 270
number of quires in roam, &c., and number of
sheets in quire, 2rn
packages of, how to be marked, 276
penalty of selling, not packed and mjirked, ac-
cording to law, 27fi
not packed or marked, to be forfeited, 270
PAPERS.
si'i-urt'd in prosecution for perjury, 812
(htaini'd from the person producing thera, . . . 81J
PARDONS.
power of, in governor, by advice of council, . . 24
not to be granted before conviction, 24
to persons convicted by impeachment, ... 24
governor may grant, upon such conditions as he
thinks proper, 855
terras of pardon must be specified in the war-
rant, 855
bond may be required for the performance of
the terms of the pardon, 855
how taken, and where deposited, 855
if terms and conditions of pardon are not kept,
convict must be arrested and detained, S55
time of conditional pardon not to be counted, . 852
proceedings in such case, 855, S5G
how the question whether condition is broken,
to be tried, 85ti
officer to make return of warrant for pardon or
commutation of punishment to secre-
tary of state, 856
PARDONS — roniinwerf.
to file in clerk's office copy of warrant and
return, 856
clerk to subjoin brief abstract thereof to rec-
ord of conviction and sentence, . . . 856
granted alter divorce by reason of imprisonment
not to restore party to conjugal rights, 532
not to cause restoration to office, unless so ex-
pressed therein, 846
PARENTS.
not punishable as accessories after the fact of
felony committed by children, .... 826
(See Chilflreu.)
PARISHES AND RELIGIOUS SOCIE-
TIES,
established or organized by law, to continue
bodies corporate, 200
actions by and against, where to be brought, 02i, 022
processes in suits against, how served, .... 023
powers of taxation given by special laws, &c.,
not affected, 200
to enjoy existing rights, &c., unless, &c., . . . 200
churches connected with, to have their accus-
tomed privileges, 200
unincorporated, may organize as corporation
if there are ten voters, 200
may hold real and personal estate, 200
may hold and manage donations, Uke incor-
porated societies, 202, 203
powers of, may be revoked by legislature. . 200
first meeting of, how called, 200
contents of warrant, how served and re-
turned, &c., 200,201
justice to preside till clerk is chosen, .... 201
may choose officers, <tc., 201
clerk to record proceedings of organization, 201
may grant money, and for what purposes, . . . 202
money granted by, to be assessed on members
like town taxes, 202
1056
INDEX.
PAKISHES, &c. — co7ittmted.
taxes iu, to be assessed on property of members,
wherever it is, 202
no citizen to be taxed for parochial ijurposcs iii,
except where he is a member, 202
corporations, guardians, &c., not to be taxed
for parochial purposes in, 202
may authorize abatement of taxes, 202
may appoint trustees to Iiold trust funds, . , . 203
may cstablisli rules for government of bucU
trustees, 203
may sell meeting: house, or take down pews
therein, 204
pews not to be paid for, if house is unfit for pub-
lic worship, 204
deacons, and other similar officers of, bodies cor-
porate for taking and holding g-rants,
&c., 205
ministers, &c., in certain cases, to be joined in
such body corporate, 205
ministers of, may take in succession parsonage
lands, &c., 205, 200
conveyance of such land by minister valid only
during ministry, unless, &c., .... 206
conveyance of church lands, how made, .... 200
churches, except episcopal, may choose commit-
tees to settle accounts of deacons, &c., 200
limitation of grants to churches, &c., . . . 20(»
overseers of monthly meeting of Friends may
hold lands, &c., as corporation, . . . 20G
limitation of grants to sucli meetings, . . . 20G
trustees of funds held by towns for religious
purposes, &c., to report annually to
selectmen, Ac, 206
may be removed, and vacancies filled, by
probate court, 20C
Members of, to remain such till tliey file no-
tice with clerk, 201
no persons to be, without their consent in
writing, 201
admission of, may be regulated by by-laws, 201
none but members to vote in affairs of soci-
ety, 201
not taxable for property held as guardians
and trustees, 202
Meetings, how warned, 201
annual, when to be held, 201
power of assessors or committees to call, , 201
if assessors, &c,, refuse, justice may call, . . 201
warnmt for, what to contain, 201
nothing done at, valid, unless subject be in
warrant, 201
clerk, &c., to preside at, till moderator is
chosen, 201
moderators of, to be chosen by ballot, . . . 201
powers of moderator, 201, 202
Officers, what to be chosen at annual meeting, 201
vacancies in office may be filled at any meet-
ing, 202
Clerk, to be chosen at annual meeting, by bal-
lot, 201
to be Bworu, and by whom, 201
to preside iu^hoicc of moderator, 201
may swear assessors and collectors, . , . . 201
if absent, &c., clerks pro tempore may be
elected, 201
Assessors, two or more, to be cliusen by bal-
lot, at annual meeting, 201
to be sworn, and by whom, 201
form of oath 70, 201
to manage prudential afTairs, unless a stand-
ing committee is appointed, 201
PARISHES, &o. — ro)}fhiuefL
to have power of selectmen in calling meet-
ing's, 201
to Insert in warrant for meeting any matter
winch five voters in writing request, . 201
Collector, to be chosen at annual meeting by
ballot, 201
to be sworn Ibrthwith, if present, . . . 201, 202
if not present, to be notified, 202
if he refuses to accept, or is not qualified
within seven days, society to make
new choice, 202
Treasurer, to be olioscn at annual meeting by
ballot, and sworn, 201
may be appointed collector, with power of
town collector, 202
Meeting-Houses.
exempted from taxation, 74
proprietors of, may organize themselves as cor-
poration, 203
powers, liabilities, &c., when so organized, . . 203
such corporation may hold real and iiersoual
estate, 203
copy of proceedings at organization of, to be
filed with town clerk and recorded, . 203
proprietors may raise money for alteration, re-
pairs, &c., 203
meetings of, bow calk'd and warned, 203
money raised for, may be assessed on pews, . , 203
assessment of, may be committed to treasurer
to collect, 203
to be collected, if not paid, by sale of pews at
auction, 203
notice of assessment, aiid sale of pews, how to
be given, 203
what to be evidence of such notice, 204
deeds of pews sold to be given by treasurer, , . 204
proprietors of, may take down pews, «S:c., for
purpose of repjiiriug, rebuilding, &c., . 204
pews to be appraised before taken down, .... 2{>i
new, to be sold at auction by treasurer, &c., 204
money from sale of, how to be applied, . . , 204
not to be paid for, if house is unfit for pub-
lic worship, 204
in certain meeting-houses, may be assessed,
and how, for parochial purposes, . . . 204
to be purchased, in certain cases, at an ap-
praisal, 204
Protestant Episcopal Church.
who may act as moderator at meetings of, . . . 202
wardens and vestry to exercise powers of stand-
ing committee, 202
assessors and collectors not to be chosen un-
less, &c., 202
duties of assessors may be performed by war-
dens, 202
what officers of, to be chosen by ballot, .... 202
Methodist Episcopal axd African Methodist
Episcopal Chukch.
trustees of any society of, may organize as cor-
poration, 204, 205
powers of such trustees, 2O0
annual income of, not to exceed four thousand
dollars, 205
first meetiug, how called, 205
choice of officers, secretary to be sworn, .... 205
copy of record of organization to be left with
tovra clerk witlim ten days, and to be
recorded, 205
organization void if such copy is not so left, , 205
INDEX.
1057
PARTIES.
severally liable on written contracts, may be
joined iu suit, 654
jutl;,'iuent aud executions iu such guit, . . . 654
To actions, wlieu may be witnesses, . . . 673, 674
m^iy mauage their own cases personally or
by counsel, 615
new, may be brought in, 657, 658
amendments discontinuing as to, may be
made, 658
may be examined on interrogatories, , 661,062
dcatli, aud other disabilities of, .... G4S-650
iu trustee process, 725, 72C
corruption of jurors, arbitrators, &c., by,
how puuislied, 6l3
PAHTITIOIf.
of hmds held by joint tenants, or tenants in
common, may be made by writs or pe-
tition iu sui)rerae or superior courts, . 698
may be made among heirs, devisees, aud those
claiming under tliem, by probate court,
574, 703
proceedings for, legally commenced in cither
court, that court to have jurisdictiou
throughout, 705, 706
may be made notwithstanding existence of a
lease, 705
may be made of estate subject to homestead, . . 525
and notwithstanding any of the tenants in com-
mon are trustees, attorneys, or guar-
dians for other tenants, 705
former partitions in such cases confirmed, , 705
persons not in being at time of application for,
bound by proceedings, upon notices to
parents, 705
in such case, next friend to be appointed for
person not in being, whose expenses
shall be paid by applicant, 705
when money is awarded, partition not to be es-
tablished until money is paid, .... 706
returns of, may be set aside, and case recom-
mitted to same or other commission-
ers, 706
when accepted, to be recorded, and remain
in office of clerk or register, aud a
copy recorded in registry of deeds, . . 700
records in registry of deeds, heretofore made
from originals, confirmed, 706
may be made by guardian of wards in certain
cases, 545
married woman or her guardian may join with
her husband or his guardian in mak-
ing partition, 539
proceedings for, to survive on doatli of parties,
aud heirs, &c., how admitted, . . 649, 650
remedy against co-tenants who commit waste
while proceedings are pending, . . . 709
"Water rights, and other incorporeal Iieredita-
nicnts, partition of, may be made by
suit in equity in the supreme court, or
as above provided, 706
partition may be so made of water of a nav-
igable stre;ira, in certain cases, . . . 700
Ix Supreme and Superior Courts.
jurisdiction gi^eu to supreme and superior
courts, 553, 562
proceedings for, when commenced in superior,
how may be removed to supreme
court, by affidavit or consent, . . 5fi2, 700
to be made in the county where lands lie, but if
parties interested are absent or uu-
89 133
PABTITION — co7i<in«(?rf.
known, petition may be made, and or-
der of uoticeissued, inanycounty, 69S,699
may be made on petition of one or more part
owners, OOS, 699
shares of petitioners only to be set off, and resi-
due to be left, 698, 699
Petition may be maintained only by one hav-
ing an estate in possession, 699
but may be made, although the estate is
leased in whole or in part, 705
cannot be maintained by tenant of freehold,
by tenant having a term for years
less than twenty years to run, .... 099
may be maintained between tenants for
years, but partition not to affect land-
lords or reversioners, 699
to be indorsed in like manner as writs in
other cases, 099
what shall be alleged therein 099
may be filed in clerk's office in term time
or vacation, 699
Bxmimons on, how issued and served in
such case, 099
may be served \vithout being filed in clerk's
office, 699
absent and unknown persons interested may
be notified by publication in newspa-
per, according to order of court, or
absent persons may be notified per-
sonally, 699
in such case, petition may be presented in
any county, and summons issued re-
turnable in county where lauds lie, , . 699
persons not iu being for whom estate is
limited in trust, how protected aud
bound, and proceedings iu relation
thereto, 705
if service is defective or insufficient, or any
person notified fails to appear, court
may order further notice, C99
court may at any time order case continued,
that absent parties, whether named in
petition or not, may have time to ap-
pear, 009, 700
death of parties to, effect of, and how heirs and
devisees may be admitted, .... 649,650
a guardian may be assigned by court for any
infant or insane person interested, . . 700
for persons not in being 705
all persons interested may appear and plead, or
answer jointly or severally, 700
pleadings in, to be conducted as in actions at
law, 700
if person not named in petition appears and
pleads or answers, petitioner may
reply that he ought not to be ad-
mitted, and any other matter also, . . 700
if it appears, in such case, that respondent has
no interest, the matter of his objection
shall not be inqidred of, 700
Advancements, questions may be heard in
said courts, or case may be continued
aud the question of advancement de-
termined in probate court, 705
Improvements, value of, to be allowed to re-
spondent in certain cases, 703
if awarded to respondent, petitioner not to
have judgment for partition until he
has paid the same, 703
how allowed on new petition when made
after a former partition, not binding
1058
INDEX.
PARTITION— continued,
ou eertaiu parties, or when they are
subsoqueatly evicted, 702, 70!i
Costs ou tri;il of an issue, 700
how allowed against a respondent who ob-
jects to partition, 703
Judgment for partition to he awarded for
such share as pi-titionor is entitled to,
although not all he claims, 700
appeal from such judgment, in superior
court, on matters of law apparent on
record, may be taken to supreme court. 701
Commissioners, three or five to be appointed
by couit, to make partition, 700
warrant to, to express shares to be set oJT, . 700
to be sworn, and certilicate of oath made on
warrant 700
to give notice to all parties interested who
are in the state, 700
all of, to meet, but acts of majority to be
valid, 700
costs and expenses of, how allowed and
paid, 703, 787
shares of petitioners may be set olf togeth-
er or separately, 700
when premises consist of mill or tenement,
which cannot be divided without in-
jury, whole may he set to oue, who
will accept it, upon paying award of
commissioners to make it equal, . 700, 701
or exclusive occupaucy of whole or part
may be set off to parties alternately, . 701
in such case, how far tenants liable to each
other to premises during their occu-
pancy, 701
how far tenants, while so occupying, enti-
tled to redress against wrong doer, . . 701
how far all tenants entitled to damages
against wrong doer, aud how such
damages to be divided, 701
returns of commissioners' doings, with their
warrant, to be made to court, .... 701
may be set aside, and recommitted to same
or other commissioners, 700
judgment to be rendered, if the report is
confirmed that partition be firm and
effectual, 701
appeal therefrom in matters of law, ai»par-
eut on record when entered in su-
perior court, may be taken to supreme
court, 701
iu such appeal, on petition for, or writ of
partition, judgment awarding that
partition be made shall not be drawn
in question, 701
when finally established, to be recorded,
where, 7O0
not to be established until money awarded
is paid, 706
final, to be conclusive as to rights of pos-
session and property of all parties
and privies thereto, 701
and on all who might have appeared, ... 701
if a part owner, for whom a share is left,
is out of state, he may, within three
years, apply for new partition, .... 701
court may grant such petition if it appears
that his share was less than he was
entitled to, 701
in such case, new division of whole prem-
ises shall not be required, but par-
tition may be made equal by taking
FABJVmON — continued.
from and adding to shares, or by
awarding money, 701,702,706
person claiming in severalty, who did not ap-
pear, nut concluded by judumont, but
may briug action for land claimed by
him, 702
person who diil not appear, claiming a share
assigned or left, concluded by parti-
tion, 703
in such case, how action for his share shall
be brought 702
proceedings when two or more respondents ap-
pear aud claim siune share, 702
rights and remedies of persons who did not
appear, if they afterwards claim as
part owners willi parties to the suit,
aud their share was not known, or not
left, 702
if a i>erson to whom a share was assigned or
left was dead at the time, his heirs or
devisees shall have same rights as if
they had not been notified, 702
party evicted of share assigned or left by title
paramount, entitled to new partition
of residue, 702, 706
mortgagees, attaching creditors, and persons
having liens on any interest, con-
cluded by judgment, and may hold
share set ofl', or left for such interest, 702
In PnonATE Court.
may be made in, of all the real estate of de-
ceased person, among his heirs and
devisees, and those claiming under
them, in jjrobato court of county where
his estate is settled, 400, 574, 703
aud of lands acquired for the estate by execu-
tor or administrator, by foreclosure of
mortgage or levy of execution, . . . . 490
partition for, by whom and how made, and how
served, 703
shall not be made when shares are in dispute,
or depend upon construction of wills,
or other matters proper for court of
common law and a jury, 704
if estate of deceased is owned in connnon with
others, it may be first set olf from
their shares, before being divided
among his heirs and devisees, .... 704
notice in such case, how given to co-tenants, . . 704
death of parties, eflect of, and how heirs and
devisees may be made parties, . . 040, (SaO
to be made by three or five commissioneri^, who
shall be swora, 703
aud to be made upon like proceedings as ou peti-
tions for partition in supreme and
superior courts, except as hereinafter
specified, 703
if estate lies in dilferent counties, separate war-
rants may be issued to ditlcrcnt com-
missioners in each county, 703
absent heirs or devisees to have agents ap-
pointed for them, 703
in case of persons interested being out of
state, petition may be dismissed, or
continued imtil they appear, or con-
sent in writing that partition be
made, 704, 705
minors and insane persons to have guardians
for the suit appointed, if they have no
Other guardians in this state, 7(M
INDEX.
1059
PAHTITIOH" — coH<i'n«erf.
persons not in being', how to be protected, and
bound, and proceedings respecting, . 705
all estate of deceased which party interested as
heir or devisee, or persons under
them, desire to htive included, to be
divided, 70i
petitioners' sliare to be set off, and the residue
to be divided among- each of the o\vn-
ers, unless two or more consent to
hold undivided, 7(H
when auj' part of estate cannot be divided with-
out injury, it may be assigned to one,
he pa\iug to others the sums awarded
by the coraraissiontTs, 704
males to be preferred to females, and elder sons
to younger, "W
whole or any part may be set off to one or more,
upon paying to others sums awarded
by the commissioners, 70i
in such cases, partition not to be established un-
til money is paid, 706
costs, how allowed and paid, 701, 787
if not paid, execution may issue, 704
advancements may be settled in probate courts, 705
improvements, after partition, how allowed in
second partition, to persons evicted,
or against persons not parties to first, 700
original return to remain in clerk's office or
probate office, and be recorded there,
and a copy recorded in registry of
deeds, 70n
how far conclusive, when confirmed, on persons
interested, 705
persons not cont-luded may pursun their remedy
as if proceedings had not been had, , 705
PABTITERSHIPS.
how and when taxed for personal property em-
ployed in their business, 76, 77
when taxed jointly, each partner liable for
whole tax, 77
ships and vessels of, how and where taxed, . . 77
embezzlement by clerks and servants of, how
punished, 800
names of former members of, not to be used by
other partners, without consent, .te., 298
proceedings by and against, in insolvency, . . . 597
suits in equity, between partners, may be
brought in supreme court, and re-
ceivers appointed, 559
Iiimited, may be formed for mercantile, me-
chanical, or manufacturing business, . 296
to consist of general and special partners, . 296
not authorized to transact insurance or
banking business, 29G
general partners of, to be responsible, like
partners in other firms, 206
special partners to furnish specific sum in
cash, and not personally liable, ex-
cept, itc, 296
certificates of, to be made, specifying names,
resideuce, stock, &c., 296
to be acknowledged and recorded in i-egis-
try of deeds, 296
If false, all liable as genera! partners, , . . 290
to be published, otherwise partnerships to
be deemed general, 296
to be recorded and advertised on every re-
newal of partnership, 296
name or style of, to contain names of gen-
eral partners only, 297
special partner, whose name is used with
PAKTNERSHXPS — cow^/Hw^rf.
his consent, to be deemed general
partner, 297
liable on contract made by him, unless
he shows he acted as special partner, 297
responsible if effects of partnership insuf-
ficient to pay debts, 297
capital stock of, not to be withdra^vn so as
to reduce it below amount certified, . 297
suits to he by and against general partners,
except, iS:c., 297
dissolution of, before time originally lim-
ited, how to be recorded, *tc., .... 297
members of, when not otherwise provided,
to have rights and liabilities of gen-
eral partners, 297
insolvency proceedings by and against, how
conthictod, 579
PASSEWGEBS.
liability of cunimou carriers of, for loss of life of, 7W
for gross carelessness in the e;irriage of, . . 794
drivers of stage-cojiches, A-c, how punished for
leaving horses untied, and persons in
the coach, 794
{See Alien Passeiigers.)
PASSPORTS.
to be furnislied by secretary to citizens of any
color, 128
PAUPERS.
Support of ry Towxs, &c.
money may be granted by towns for support of, 158
settlement of, how acquired, 390, 391
to be relieved by city or town where legally set-
tled, 392
to be under care and oversight of overseers of
the poor, 302
overseers of poor to have same authority over,
as masters of workliouses, 390
what kindred of, if able, bound to support them, 393
kindred of, may be assessed by superior court,
on complaint oftown, &c,, where pau-
per has been relieved, Ac, 392
not to be assessed for expense incurre<l more
than six months before complaint, . . 392
may be assessed in weekly sum, payable
quarterly, for future support of, . . . 392
execution against, may be issued and re-
newed for past assessments and for
arrears, 392
costs against, how taxed when two or more
are adjudged liable to support, .... 393
court may order with which of. and Iiow
long with each, pauper shall live, . . 393
complaint against, how filed, and notice
given, 393
not summoned in original process, may be
afterwards summoned, &c., 393
court may make new orders altering assess-
ment on, &c., 393
liability of, for support of paupers in state
almshouses when they have a legal
settlement within the state, 403
needing relief in places where they have no set-
tlement, to be relieved by overseers
of poor, 393
expenses of supporting such may be recovered
by place incurring them against place
liable therefor, 393
action for such recovery to be commenced with-
in two years after cause arises, .... 393
recovery in such action to bar defendants from
disputing settlement in future actions, 393
1060
INDEX.
PAUPERS — covtimied.
towus liable for support of, not required to pay
more than one dollar a week to an-
other town, if removed within thirty
days, 393
having no settlement within this state, to be re-
lieved, &c.,tiU removed to state alms-
house, 393
expenses of relief in such cases, how to be paid, 393
towns liable to individuals for support of, aiter
notice, &c., till overseers provide, . . 393
provisions for notice to towns where paupers
have settlement, that they are sup-
ported in other places, 394
for removal of, to place of settlement, . . . 394
may be removed, if overseers do not, within two
months after notice, return written
objections, 394
towns barred from contesting settlement of, if
overseers do not reply to notice with-
in two months, 394
notifications and answers thereto, sent by over-
seers by mail, to be deemed sufficient, 394
penalty for bringing into and keeping, in place
where they have no legal settlement,
knowingly, &c., 394
how recovered, and to whose use, 394
effects of deceased may be taken by overseers,
and applied to reimburse expense of
support, Set"., 394
suits concerninj;:, to bo prosecuted and defended
by overseers in behalf of their towns, 394
returns of, (te., to be made annually by over-
seers, &c., to secretary of common-
wealth, 304
form and contents of sucli returns, . . 394, 395
ponaltv on overseers, &c., for neglect in
making returns, 395
abstract of returns to he made by secretary
for use of legislature, 395
in state almshouses, having settlement within
state, to be supported by town where
PUfh settlement is, 402, 403
liability of kindred for support of sneh pau-
pers, 403
State Patters.
board of commissioners of, and of alien passen-
gers, how constituted, 390
commissioners may appoint persons to see that
laws respofting, are enforced in state
almshouses, ttc, 39fi
to prescribe forms for, and furnish certifi-
entes to be used in, sending to alms-
houses, 397
to prescribe forms of returns by superintend-
ents of alm«honses, .tc, respecting, . 307
to have power of overseers of poor in rela-
tion to stnto pnuper« in liospitals, . . 307
to make annunl report to governor and
council, 397
compensation of, 397
maybe transferred from one stnte almshouse or
hospital to anotlior by commission-
ers, 307
arriving- by water, when they cannot he re-
moved to state nlmsTiouse, to be sup-
ported at Rainsford Island hospital, 400
may be sent by towns to hospital, by permission
of commissioners of alien passengers, 400
liability of kindred of, &q., in such cases, and
how enforced, 400
VAVVEB-S ~ ronthiued.
may be sent to state almshouses by towns, &c., 401
discharged from state prison, &c., to be removed
to state almshouses in certain cases, 401,402
if settlement of, is discovered, such pauper to be
removed to place of settlement, . . . 402
if too sick to be removed, may be provided for in
state prison, &c., 402
may bo supported in place where wife has legal
srttlemout, at expense of state, . , , 402
accounts of expense in such case, how au-
dited, Ac, 402
to be provided for by towns, Ac, at expense
of state, when state almshouses are
full, 402
inspectors of state almshouses to have powers
of overseers in relation to, and their
property, 402
employment of, may be contracted for with su-
perintendent, &c., 402
refusing to avail themselves of such employ-
ment, to forfeit claims as a state pau-
per, 402
penalty on, for leaving state almshouse without
consent of inspectors, -103
may be sent to place where they belong by jus-
tice of superior court, itc, 403
lunatic paupers may l)e sent away in like man-
ner by jirobate court, on complaint,
&c., 403
no allowance to be made to counties, towns, &c.,
for, except in cases expressly provid-
ed by law, 403
accounts of counties, towns, &c., for support of,
how audited, paid, &C., 403
PAWNBROKERS.
may be licensed by mayor and aldermen or se-
lectmen, 45S
license to designate place of business and pro-
scribe restrictions, &c., 458
penalty for carrying on business of, without li-
cense, or contrary to provisions of
license, &c, 458
PAYMENT.
effect of part, not altered by statute of limita-
tions, 770
indorsement of, on note by payee, not to prevent
statute from running, 779
PEDLERS. •
provisions concerning, 2SI
(See Hawkers and Pedlers.)
PENALTY.
action for, where to bo brought, 621
{See Finca, Forfeit urea.)
if accruing to commonwealth, suit therefor to
be lirought in two years, 770
if to private persons, in one year, 779
PERJURIES AND FRAUDS.
ju-nvisious for the prevention of, 527,528
PERJURY.
how punished, 8!2
in trials for capital crimes, S12
in other cases, ' S12
what to be deemed, H12
subornation of, 812
inciting to commit, penalty for 812
on presumption of, by witness, court may com-
mit witness, 812
papers, Ac, necessary in prosecution for,
may be secured, 812
by persons summoned as trustees, in making
answers, how punished, 722
INDEX.
1061
PEKSOlSr.
may hu applied to bodies corporate and politic, 513
PER30H ACCUSED.
(See Prisoners.')
personaIj estate.
wliiit iuchi(k-d in, for imrposc of taxation, ... 74
wliero taxable, 75, 7fl
mortgaged or pledged, to whom taxable, ... 7G
of persona under {guardianship, where taxable, . "0
held in trust, where taxable, 7G
deposited to accumulate, where taxable, .... 70
of relig;lou8 eociety, held as ministerial fund,
where and to whom taxed, 70
of partners, how and where taxable, 70, 77
may be disposed of by will, 470
of deceased person, how distributed, 4S5
■what to be deemed, in certain cases, . . 489, 4U0
to be aeeouuted for at its appraisal, except,
&e., 4iM, 495
PERSONAL LIBERTY.
provisions of law for the protection of, . . 740-742
governor to appoint eomniissioners in each
county to defend fugitives, 740
any attorney, when desired by fugitive, may aet
as counsel, 740
commissioners to pay expenses of defence, . 740, 741
and be reimbursed by commonwealth, . . . 741
persons holding- office of honor, trust, &c., un-
der state laws, not to issue warrant
under fugitive slave law, 741
justices of the peace to bo fined or impris-
oned if they so act, 741
state jails or prisons not to be used for deten-
tion of persons claimed as fugitives, . 741
punishment for persons removing, or aiding in
removing, from the state those not
held to service or labor, 741
for coming here with intent so to remove, . 741
those suffering from such rL-moval, &c., may
also have damages therefor, 741
penalty on sheriffs, &c., arresting fugitives
from labor, 741
. on members of volunteer militia for acting
in seizure, detention, or rendition of
such fugitives, 741
penalties and prohibitions not to apply to
acts of military obedience of any offi-
cer or private, 742
these provisions not to apply to fugitives from
justice, 742
persons holding judical office under the United
States, or office of commissioner of
circuit court, to hold no judicial oflice
in state except that of justice of the
peace, 742
no justice of the peace, while such commission-
er, can issue any state process except
to smnmon witnesses, 742
PERSONAL PROPERTY.
wilful and malicious destruction of, how pun-
ished, 80G
punishment when value of property does
not exceed fifteen dollars, 806
PERSONAL REPLEVIN. {See neplevin.)
provisions concernim,', 730, 740
PESTILENCE.
adjoniuun lit of courts in consequence of, ... 017
prisoners may be removed from jail, &c., in case
of, 804
PETIT TREASON.
distmction between, and murder, abolished, . . 791
prosecution and punishment of, 790
89*
PETITION TO LEGISLATURE,
right of, 16
notice of, to be given, and how, when afiectiug
rights of individuals, &c., 47
wlieu affectiug cities or towns, 47
wheu for act of incorporation, &c., . . . . 47,48
for incorporation, notice of, to specify capital
required, 4S
for extension of charter, notice to specify the
same, 4S
proof of publication of notice, how made, ... 48
proof and petition to bo presented witliiu first
ten days of session, 4S
PEWS.
to be personal estate, 204
proceedings relating to, when house is rebuilt,
&c., liOi
to be purchased in certain eases at appraised
value, 204
used by debtor and family, exempted from at-
tachment and execution, 088
may be sold for non-payment of tax legally laid
thereon, 088
exempted from taxation, except for parochial
pnii>oses, 74,204
from levy on execution and from attjich-
mcut, 024, OSS
PHYSICIANS AND SURGEONS.
to certify <-crt:un facts concerning deaths, when
requested, under penalty, 100
to give notice to board of health, &c., of danger-
ous disease, imder penalty, 193
dead bodies may bo furnished to, by overseers
of poor, &c., 195
to give bond that such body shall be used for
l)rumotion of anatomical science, . . . 195
and to cause remains to be decently buried, . . 105
aiding in coroner's inquest, pay of, boO
when may have body of person executed, for
dissection, 791
exempted from serving as jurors, (iso
of state prison, appointment, duty, &c., . . 870, 872
PICKEREL.
provisions respecting the taking of, &c., .... 431
PICKLED FISH.
provisions respecting, 201-204
(.Sec Fish.)
PIGEONS.
wilfully killiag or frightening from beds, how
punished, 806
person so doing liable io owner for actual
damage, SOG
PILFERERS.
common, how arrested, secured, and punished,
820, 821
PILOTAGE.
fees for, to be established by commissionei*9,288,289
registered vessels, of two hundred tons and
under, to pay half pilotage, 2S9
vessels exempt from, 289
rates of, for vessels taking steam towage, , . . 289
PILOTS.
commissioners of, how appointed, and term of
office, 2S7
to grant commissions to port ami bay pi-
lots, 287
to keej) an office, and register and examine
complaints against pilots, 288
to notify treasurer when condition of pilot's
bond is Ijrokcn, 288
to make and publish regulations concerning
pilots and pilotage, 288, 289
1062
INDEX,
PILOTS — continued.
to keep record of all official acte, 2S9
to make annual report to secretary, .... 280
compenBution of, 288
exempted from military duty, 02
how oommissioued, 287
to give bond, 288
how 8urcty may terminate liability on bond of, 288
if bond iuBufficicnt, commissioners may require
new one, 2SS
not to interfere upon each other's limits, . . . '267
to take charge of all vessels within limits, ex-
cept fieliing and certain coasting ves-
sels, 287,288
fees of, to be fixed by commissioners, . , . 2SS, 289
division of, in certain cases, between bay
and port pilots, 257
to be paid by inward bound vessels, except,
&c., to first pilot offering his services, 2S8
vessels of two hundred tons and under, not
taking pilot, to pay half, 288
lien for, upon vessel, 288
to render quarterly accounts to commissioners, 288
penalty for false return, 288
to pay Bix per cent, of fees received to commis-
sioners, 28S
penalty on person acting as, v»'ithout commis-
sion 288
to make complaint for injury to property of
Humane Society, SOG
duties, fees, &c., of bay or g-eneral pilots, ... 287
PIPEKS.
common, how punished, 820,821
PLACE.
how construed, 52
PLANTS.
punishment for wilfully digging up, 805
PLEADING AND PRACTICE.
provisions respecting, C53, GGO
not to change rules of evidence, measure
of damages, jurisdiction of any court,
nor the loc<tlity of any action, ... GG2
PLEADINGS,
divisions of personal actions, G53
method of declaring, 053, 050, 057
in action of trover, 054
to set forth copy of written instrument relied
on, or legal effect thereof, 054
to set forth condition of bonds, &c., V'A
when whole contract is not set out, court may,
on motion, order original, or copy to
he filed, G5i
referring to general statute, how to designate
same, GM
may allege fiicts in the alternative, 007
to be so construed by court as to secure pre-
cision and certainty, and discourage
vagueuesR, G57
facts alleged, and not denied, to be deemed to
he admitted, 057
need not state evidence, nor disclose means of
proof, 057
shall be deemed at issue when allegations are
closed, as in real and mixed actions,
when plea is filed, 057
court may order either party to file a statement
of particulars, GGO
require unnecessary counts and statements
to be stricken out, 001
BOt to be evidence, GGl
changes in suit after commeucement, may be
suggested and entered of record, . . GG3
PLEADINGS — continued.
in ix-l.itiuu to set-ofl' of mutual demands, . 070, 071
in writs of entry, to be same as heretofore, ex-
cept in ceitain changes specified, 092, 093
In petitions for partition, to be same as
in actions at law, 700
(Sec Decltirationj Ansu-er, Issue, General Jssue.)
PLEAS.
In abatement, may be made by answer, . . 055
after amendment in consequence of, or
when overruled, defendant to answer
or plead, 055, 050
Special in bar, abolished; and answer, or iu
real or mixed actions, general issue
substituted, 656
Of general issue, abolished except in real
or mixed actions, and actions before
justices of the peace, 000, 656
in real and mixed actions, defendant may
give in evidence under it, which for-
merly might have been pleaded in bar, .656
before justices of the peace, may be pleaded
orally, 606
to indictments, provisions concerning, 840
PLEDGES.
iiltachment of property held as, how made, 027, 628
how held on trustee process ag'ainst pledger, . 727
holder of personal property in pledge may give
notice that he intends to sell, to en-
force payment, 707
notice to be iu writing, how serveil, aud where
recorded, 767
copy of record to be evidence, 707
if debt is not paid, &c., in sixty days after
notice is recorded, pledge may be
sold, 767, 768
sale to be by public auction, 70S
proceeds of, how applied, 70S
of stocks, debts, &c., to be specified in transfer
aud certificate, 385
contracts not affected hereby, nor other rights
of pledgee limited, 768
pledgee of person having possession of mer-
chandise, &c., when to acquire rights
of such person, &c., 295
to acquire no further right, if pledge is for
antecedent debt, 205
PLUMB ISLAND.
iu Essex county, lighthouses on, ceded to Uni-
ted States, 44
PLURALITY.
of votes to elect officers chosen by the peo-
ple, 30, 59
POINT ALDERTON BAB.
siti' for ItcatMu on, ceded to United States, . . . 45
POINT GAMMON.
iu Yarmouth, land on, for lighthouse, cedctl to
United States, 44
POISON.
miughug with food, water, mediciue, &e., with
intent to kill, how punished, 704
administering or exposing to cattle, &c., wil-
fully, 805
persons selling, without written prescription
of a physician, to keep record of sale, 823
penalty for neglect, 823
penalty on purchasers giving false names, . . . 823
POLICE COURTS.
cities and towns where now established, .... 500
not to be established in any town having less
than ten thousand inhabitants, .... 5G9
record of, how to be kept by clerk, 500
INDEX.
1063
POLICE COVB.TS — continue.
in civil aud criminal oases to be kept sepa-
rately,
terms of, to be lixod by^ustice or court, and civil
find criminal to be scparntc,
to be held by judge, or in his abscucc, or disa-
bility, or in case of vacancy, by senior
special justice,
to be held as often as necessary, in place pro-
vided by district, aud may bo ad-
journed,
two or mure sessions may be held at same time,
and a special justice may, on request
of judf^o, hold a session at same time
asjud^e,
expenses of, fi)r rent, care of room, stationery,
ttc, to bo audited by court, and paid
from county treasury,
two thirds of tlie expenses to be repaid from
state treasury,
to make rules,
may issue summons and other process to wit-
ness to run into any county,
complaints to, to be entered on docket, ....
processes of, to be under seal, bear test of judiro
or senior juds^c, and si^j^ned by clerk
or assistant clerk,
in other resi)eets to be like processes of Jus-
tices of the peace,
when cases are adjourned to future day, parties
and witnesses need not attend from
day to day, but shall rccofpiizc to at^
tend at time of adjournment,
fees aud costs in, how taxed, certified, and
paid, 57'^,
returns of criminal statistics, &c., how made, .
appeals Irom, to superior court, to be bad, en-
tered, eonilucted, aud disposed of like
ai)peals Irom justices of the peace, . .
costs on appeals from judgments of, in ci^■il
eases,
to enter on docket the day when aiiy civil case is
liujilly disposed of for the term, . . .
{See Justices of the Peace.)
Jurisdiction.
same as that of justices of the pence,
to have powers necessary to discharge t!ieir du-
ties.,
of offences within their district, jurisdiction to
be exclusive,
additional aud concurrent with superior court
of certain cases of assault and battery,
of offences punishable by fine not exceeding one
hundred dollars, or imprisonment not
exceeding six months, or both, . . .
of certain eases of obtaining property by false
pretences, games, fortune telling, and
other tricks ; aud of buying, conceal-
iug, and aiding in concealing, stolen
property,
court may decline to exercise final jurisdiction
of cases within the concurrent juris-
diction of superior court,
warrants in criminal cases issued by the court,
justices, or any justices of the peace,
to be returnable before police courts,
in certain cases,
to be returned to court specified therein,
with return of oflScer indorsed there-
571
witnesses aud parties need not attend from day
POLICE COVRTS — continued.
to day, when cases are adjourned to a
future day, 571
may discharf^e poor convicts, 878, 879
In civil cases, same as justice of peace, and
exclusive wlien all plaintifl's, defend-
ants, and trustees, if any, reside in the
district, 570, 571
police court of Boston to have additional ju-
risdiction, concurrently with superior
court, of civil eases in which damages
or property claimed does not exceed
tlirec hundred dollars, 573
Judges.
one justice and two spccialjusticostocach court, 569
appointment and tenure of office of, 509
not to be retained or employed as counsel in
any case ponding or tried in their
courts, 569
may receive complaints and issue wrrrants,
when court not in session, 570
to make rules, and act as clerk when no clerk is
appointed, 571,572
to hold courts, aud in case of their disability or
vacancies, special justice to act, . . , ri71
processes of courts to bear test of, 571
may discharge poor debtors, take bail, kc,
CXi, (i:;5, CA2
Salaries of, o72, 573
not to receive fees for any additional services,
nor for issuing warrants aud other
processes in any capacity, 573
Special, not to be retained as counsel in cases
in wliich they shall have officiated, . . 509
senior to act in case of vacancy, or disabil-
ity of judge, 571
may, on request of judge, hold different ses-
sion of court, 571
writs to bear test of, iu case of disability of
judge or vacancy in office, 571
compensation of, to be paid by justice at same
rate as his <-unii)ensation, not exceed-
ing fues taxable for the services, . . . 571
Clerks.
to bo elected by certain cities and towns where
courts are established, 509
vacancies in, how filled by election, 5o9
to be sworn, give bonds, attend courts, and keep
records, 509
may be appointed by judges of those courts for
which the office of clerk is not estab
lished by law, 5G9
may appoint assistants, witli approval of judge
or court, 569
shall be responsible for, and may remove their
assistants, 509
ou death, absence, or removal of, clerk pro tem-
pore to be appointed, 569
duties, compensation, and oath, of clerk pro tem-
pore, 509
not to be retained as counsel in cases pendiug
or tried in their courts, 569
to sign processes, 571
to make all warrants and processes, tax costs,
receive fees, fines, and costs, and make
returns, 572
fees of, for copies, to be indorsed thereon, . . , 572
to account with and pay to county treasurer fees
and cost, and fines quarterly, 572
to pay certain fines to cities and towns, .... 572
1064
INDEX.
POLICE COVB.TS- continued.
certiiin foes to jKivtics entitled thereto, or
aeeouut therefor to county treasurer, . 572
of police court of Boston to account to board of
accounts and i)ay fees and cost to city
treasurer, 573, 574
assistant clerks of Boston court, salaries of, . . 570
Salaries of. 572, 673
not to receive fees for any additional services,
nor for issuing" warrants and other
processes in any capacity, 573
Police Court of Bostox. Special Provisions.
court established, 509
three justices, bow appointed and tenure of of-
fices, 573
justices to make rules, and distribute business
among- themselves, 573
senior justice to be first justice, 673
any justice may receive complaints and issue
warrants, 573
assistant clerks, sahiries of, payable out of state
treasury, 57:j
court to he held daily for criminal business, . . 573
weekly for civil business, each term com-
mencing on Saturday, aud action may
be continued to any future day, ... 573
different justices may hold ditferent sessions ut
same time, 673
to have same jurisdiction as justices of the
peace, which shall he exclusive when
all plaintiff's and defendants reside in
the district, 573
additional jurisdiction to extent of three hun-
dred dollars concurrently with supe-
rior court, 673
records, proceedings, jurisdiction of justices'
court for county of Sufiblk transferred
to, 573
clerk to render au account to board of accounts,
and pay over costs and fees to treas-
urer of Boston, 573,574
POLICE OFFICERS.
may be appointed by sek'otmeu,to hold office
during their pleasure, IGl
to have power of constables, except to serve
civil process, Kjl
refusing to assist, how punished, 813
falsely assuming to be, how puuisltod, 814
POLICY.
of insurance on mutual plan, not to be issued
for more than three fourths of prop-
erty insured, 327
lien on building, laud, &c., 327
to bo set forth on face of policy, 32S
to cease upon alienation of property to a
bona fide purchaser, unless policy is
continued, 328
manner of enforcement of, 328
if property sold on execution, right of re-
demption reserved to owner, .... 328
sliall designate the class of property to be in-
sured, 328
forms of declarations and answers, in suits
on, COS, ens
POLL TAX, (sec Taxes,) 74, 75
POLYGAMY.
deliued and punished, 817, 818
«xr.i)te<I cases, 818
POOR CONVICTS.
duty ol' magistrate ordering the commitment of, 845
discharge of, 878, 879
POOB COfrVTCFB- continued.
discharge of, after confinement for three
months for fine and costs, 878
proceedings in such ease, i^'a
for thirty days, if fine, or fine aud costs
do not exceed ten dollars, , , . 878, 879
for forty days, if fine or fine and costs do
not exceed twenty dollars, 879
proceedings iu such cases, 878, 879
in Suffolk couuty, poor convicts held only
for fine and costs, may he discharged
at any time, by justices of police
court, 879
if held under sentence of other court,
one justice thereof must assent to
discharge in writing, 879
persons under guardianship, if property is
not in their actual control, may be so
discharged, 879
commonwealth may recover fine and costs of
guardian, if he has assets, 879
suit therefor to be brought iu one year, . , 879
fees of justices for discharging poor convicts, . 879
POOB DEBTOBS.
l>ro\isious concerning, 033
not to be arrested on mesne process, in actions
of contract, unless affidavit is made,
and certificate of magistrate procured, G33
before whom affidavit must be made, and what
must he set out therein, and proved, . 633
how arrested on mesne process iu actions of
contract for mouey collected as attor-
neys at law, 633
how arrested on mesne process in actions of
tort, 634
how arrested on executions in actions of con-
tract, a34
what affidavit to be made in such case, and
before whom, 034
for arrest of attorney at law, on execu-
tion, for money collected by Iiim, . . 034
may be arrested on execution for costs only,
without affidavit, 034
female not to be arrested, except in actions of
tort 634
not to be arrested after sunset, unless arrest is
specially authorized, 035
not to be arrested in civil actions for libel and
slander, 635
officer need not arrest, imless specially directed
by plaintiff, 632, 634
death of creditor not to affect proceedings
against, when arrested, 637
imprisoned for non-payment of taxes, how dis-
charged, 82
Arrested, how to be proceeded with, axd
discharged.
arrested on mesne process, may procure boil,
!md have time therefor, 635, 642
on execution, or mesne process, in actions
of contract, to have lime to procure
sureties for recoguizimce, 035
to be taken before magistrate, 035
when taken before magistrate, if he desires to
take the poor debtor's oath at a future
time, he may recognize for his ap-
pearance within thirty days, 635
recognizance, how taken, 635
surrendered by his sureties, may recognize
anew, 635
if he desires to take poor debtor's oath, or
INDEX.
1065
POOB BUBTO'RB — continued.
oath that he does not intend to leave
Btate, mag^istrate to appoint a time for
his examination, and issuo notice to
creditor, 035
form of notice, 635
notice may be given that he desires to take both
oaths, 635
service of notice, how made in diiferent cases, 635, g;J0
when notice that defendant desires to take poor
debtor's oath has once been given,
new notice not to be given until expi-
ration of seven days, 630
when notice has been served, some magistrate
to attend at time and place appointed,
and examine debtor, 630
pending examination, how recognizance may be
taken, 630
but debtor not to recognize after oath is refused,
except in cases of appeal, 636
examination of, upon notice of desire to take
oath that he does not intend to leave
state, and how discharged, 630
examination of, upon notice of desire to take
poor debtor's oath, and how dis-
charged, 636
not entitled to benefit of poor debtor's oath, if,
after being arrested, he misspends or
misuses certain property, 636
nor if he makes default, after charges of fraud
are filed against him, or is convicted
thereon, 639
maybe discharged by magistrate, upon taking
poor debtor's oath, if magistrate is
satisfied that facts set forth in oath
are true, 030, 637
form of poor debtor's oath, 637
form of certificate, of discharge, and the effect
thereof, 637
after discharge, judgment to rem;un in force, . 637
execution subsequently issued on judgment to
nm against estate, and not against
body of debtor, 637
on bail on mesne process, or imprisoned on any
execution, may be tlischargcd on taking
oath as when under arrest, 037
not to be discharged, after writ of scire facias
on bail bond has been ser\'cd on sure-
ties, unless they pay costs on such
writ, 637
I.MrRISON'JIEXT OF.
to be imprisoned when arrested on mesne pro-
cess, in actions of tort, unless they
give bail, 637
in actions of contract, if they do not desire
to take oath, or fail to recognize, or do
not give b;iil, or the oath is refused by
the magistrate, 637
in such cases, magistrate to make certificate, and
defendant to be imprisoned, 637
to be kept, when so committed, until final judg-
ment, and for thirty days thereafter if
judgment is against him, unless he re-
cognizes, gives bail or a bond, or takes
the oath, 637, 038
to be imprisoned when arrested on execution, if
they do not desire to take the oath, or
fail to procure sureties, or the oath is
refused them, 638
certificate to be made by magistrate, in such
case, 638
134
POOR DEBTORS — conf?Hwerf,
to be kept until they recognize, satisfy the exe-
cution, take the oath, or are released
by the creditor, 638
when imprisoned, to be supported at expense of
creditor, if he claims support as a
pauper; jailer may discharge him, if
creditor fjiils to pay on demand, . . . 633
may be discharged by creditor, if he claims sup-
port as a pauper, 63S
when so discharged by jailer or creditor, debtor
to remain liable for debt and costs, but
his body not to be again arrested, , . 638
not to be discharged from imprisonment, upon
satisfying execution, unless he also
pays the cost imd the expenses of his
support in prison, 638
how long to be imiirisoucd, when surrendered by
b;ul, W3,644
rCNISHMEXT FOR FRAUD.
pending examination of debtor desiring to take
l)oor debtor's oath, charges of fraud
may be filed against liim, 638
when charges are made in affida\'it for arrest, or
are filed, the same to be considered in
the nature of a writ at law, debtor to
plead, and trial, and eWdcnce therein, 038
either party may appeal to superior court from
judgmenEu>f magistrate tlioreou, . 638, 639
appellant to recognize, 639
if debtor miikes default, after charges are filed,
or is convicted thereon, how punished, 039
not afterwards to be bailed in simic action, . - . Gi2
Discharge of, wiiex committed on Warrants
OF Distress ix Kavor of State.
persons so committed may be diseliarged in like
manner as poor debtors, 639
may represent to jailer their desire to take
poor debtor's oath, 639
jailer to notify magistrate, who shall appoint
time for hearing, and cause notice to
begivon to district-attorney, 639
district-attorney to attend, or appoint some one
to attend; compensation therefor, 639
Poor Debtors who are Ixsaxe, how dis-
charged or removed.
when imprisoned, and unable, by reason of in-
sanity, to take poor debtor's oath, any
person interested m:iy petition judge
of probtate court for his removal from
jail, 039
judge to appoint time and place for hearing and
order notice to creditor, 039
may discharge debtor, or remove him to
hospital or other place, if he is satis-
fied of his insanity, 039, OiO
when debtor is so discharged or removed, legal
rights of creditor to remain, 639
Discharge of ix. special Cases.
when committed for non-payment of taxes, . . 82
in bastardy process, 405
Imprisoned when Judgment is rendered
AGAINST them, OR WHEN SURREXDEBED
BY Bail after Judgment.
when a debtor is in prison on mesne process,
where judgment is rendered against
him, he may be discharged by giving
1066
INDEX.
POOK V^E^BTOB^S — continued.
bond to surrender himself in tliirty
diiys, .... • G40
how debtor may afterwards be arrested on exe-
eutiou issued in such action, 040
jailer to certify on execution, if left with him,
whether debtor has surrendered, and
give certificate to officer, 640
■when debtor is surrendered by his bail after
judgment, he may be discharged by
giving bond to surrender himself in
thirty days, 040
bond, conditions of, 040
debtor, in either of said cases, may be taken .and
committed on execution within said
thirty days, 040, 041
SUBRENDER OF PRINCIPAL ON RECOGNIZANCES.
sureties in recognizances may surrender princi-
pal, 041
Remedy on Recognizances and Bonds.
when recognizance and bond are broken, actions
of contract may be brought thereon, . G41
judgment in such case, 041
Remedy against Officer for Escapes.
when prisoner escapes from officer, creditor may
maintain action of tort against officer,
and also scire facias or contract
against debtor, 041
Fees.
of magistrates, amount, how allowed and taxed; 641
of judges of probate court, for removal or dis-
chai-ge of insane poor debtors, ... 041
ofjiuWs, 041,642
POSTMASTERS.
and persons in care of United States mail, ex-
empted from military and jury du-
ty, 92,080
POST OFFICES AHD ROADS.
power of Congress to estnblish, 4
POSTHUMOUS CHILDBEW
considered as living at death of their parent, . 475
omitted in will of father, to take share as if he
had died intestate, 479
devisees, &c., to contribute equally, in such
cases, to shares of, 479
to contribute with devisees, &c.,for payment of
debts of testator, 479
may claim contribution from devisees, &c., . . 479
guardian of, may be appointed by father in his
will, 543
POSTS.
uu bridges, sidewalks, &c., punishment for
breaking, removing, Ac, 803
POT AJSTD PEARL ASHES.
iuspeetor-gcuerul of, appointment of, and term
of office, 258
to be sworn, 258
to give bond, 270
may appoint deputy-inspectors, in seaports
where pot and pearl ashes arc ex-
ported, 258,270
to be responsible for his deputies, . . . 270, 277
to make retnms annually to secretary, ... 277
fees of, 277
* deputy -in Bpectors to be sworn and give bond,
270, 277
to make returns once in six months, .... 258
POT AND PEARL A^U^S^ continued.
penalty on inspectors for neglect, &c., in In-
spection, 277
fees of inspectors, 277
casks, quality and size of, 277
to be branded by manufacturer, xmder pen-
alty, 277
to be weighed by inspector, and weiglit
marked on each head, 277
how inspected, &c., 277
sorts and denominations of, how branded on
casks, 277
not to be shipped for exportation until in-
spected, 277
imported from other states, may be exported
without rcinspection, 277
to be forfeited, if shipped without branding, . . 277
inspector to seize and libel casks if so shipped, 277
penalty on master of vessel for receiving on
board casks not branded, 277
on master or crew for obstructing search
by inspectors, 278
for counterfeiting brands, or branding
falsely, 278
for shifting contents of inspected casks, . . 278
POTATOES.
standard weight of bushel of, to be sixty
pounds, 278
mean weight, how to be ascertained, 278
penalty for selling ivithout ascertaining weight
of, 278
when these provisions not to apply, 278
POUND.
one or more to be maintained in every city and
town, 185
penalty on to^\^l, &c., for neglect to maintain,
&c., _, 1^5
on persons for wilfully injuring, 185
POUND-KEEPER.
to be appointed annually, by towns, &c., for
each pound, 185
to provide beasts distrained with food, &c., . , 185
fees of, 185
not to deliver beasts to o^vner imtil fees, dam-
ages, &c., are paid, 185
to pay over field-drivers' fees when received, , 185
may retake, within seven days, beasts that es-
cape or are rescued, 18G
PO'WER OF ATTORNEY.
to convey real estate, to be acknowledged and
recorded, 408
when to be acknowledged by both husband and
wife, 40S
PRACTICE.
in civil actions, provisions concerning, . . . l).>:-0G9
PRECEDING SECTION.
in tboyo statutes, means next preceding, .... 51
PRESIDENT AND VICE PRESIDENT.
of the Tuited States, electors of, CO
constitutional provisions respecting, 4, 5, 0, 7, 10
PRESS.
libertv of, not to be restrained, 10
PRETENCE.
of process, punishment for arrest under, &c., . 700
{See False Pretences.)
PRINTING".
convicts in state prison, not to be employed in, 674
PRISON BOOK.
to be kept by jailers and masters of houses of
correction, ^'^
pxmishment for neglecting to keep, or wilfully
making false entries therein, .... 800
INDEX.
1067
PRISONS.
uot to bo used for the detention of persons un-
der the fugitive slave law,
PRISONERS.
entitled to know from oflScer arresting the rea-
son of their arrest,
to see, on request, the precept of officer, . .
may have counsel, or defend themselves, . . . ,
produce witnesses in their favor,
entitled to meet witnesses against them, . .
former conviction or acquittal to bar, &c., . . .
wlicn no defence,
aidiujf to escape from prison, how iiunished, .
from officer, how punished,
officer vohintarily suiTering' escape of, how pun-
ished,
negligently suffering escape, how pun-
ished,
refusing to receive, how punished,
refusing to arrest, how punished,
refusing to assist officer in securing, how
punished,
refusing to obey justice of peace in securing,
how punished,
in examination before magistrate, entitled to
counsel,
may be detiiined in jail, &c.,
may be removed from one jail to another in
same county,
list of, to be returned into superior court at
opening of each term,
provisions for classifying, &c., 858,
{Si-r. floitses of Correction^ State Prison.)
PRIVATE "WAYS AND BRIDGES, (^tc
/fIf/JiH-fii/!i,) 239,
PRIZE FIGHTING.
penalty for,
for ai(hng, promoting, &c.,
for leaving the state to engage in, out of the
state,
PROBATE COURTS.
established in each county,
to be held on days fixed by law,
judges and register of probate and insolvency to
be judge and register of,
have jurisdiction of the probate of vnWs, and
granting administration,
of the appointment of guardians to minors
and others, 543, 544,
of all matters relating to the settlement of
estates ofdeceased persons and wards,
of petitions for adoption of children and
change of names, 54r, 548,
of certain matters relating to funds for
charitable and religious purposes, .
of the appointment of trustees in certain
cases, 234, 330,
when a case is within jurisdiction of two courts,
the one in which proceedings are first
commenced shall retain it throughout,
administration or guardianship first granted by,
shall extend throughout the state, . .
jurisdiction, so far as it depends upon residence
of any person, not to be contested in
any suit except upon appeal in the
case,
may decree specific performance of written con-
tracts for conveyance of land made by
deceased persons, and persons subse-
quently put under guardianship —
proceedings in such cases,
may make rules, to be returned to, approved.
248
PROBATE COTTRTS — continued.
altered, or amended by, supreme
court, 576
judges may frame and issue necessary warrants, 576
decrees to be iu writing, and with certain other
papers to be recorded, 570
regularity of proceedings to be presumed after
twenty years, 576
orders of notice, and certain other official acts,
may be done in vacation, 576
may award costs in certain cases, and issue ex-
ecutions therefor, 576
judges, when accountant is unable to attend court,
may administer oath out of court, or
authorize justice of the peace to do it j
certificate, accounts, and vouchers to
be returned, 576, 577
all other oaths required of persons in relation
to probate matters may be adminis-
tered by justices of the peace, .... 577
parties having business in, may select newspa-
pers in which to have notices pub-
lished, 577
county to provide books and stationery for, . . 577
register to prepare certain copies without
charge, 577
clerks in ofllce of, not to be commissioners of
insolvency, or dividers of estate ofde-
ceased persons, unless requested by
parties, 677
judges may keep order in their court and punish
for contempt, 577
Sesoions of the court in the several counties,
577, 578, 579
to be held at such places in the cities and
towns as the judge orders, 577
maybe adjourned by judge or by register,
in certain cases, 577
not to be held unless registers, assistant reg-
isters, or register pro tempore, is pres-
ent, 577
Appeals may be had to supreme court in all
eases, 415, 422, 548, 575, 576
to be claimed, and notice given, within thirty
days, 575
to be entered at rule days of supreme court, 575
reasons to be filed fourteen days before time
of entry, Z '>
omitted to be entered, may on petition with-
in one year, be entered subsequently, . 5,5
if petitioner was out of United States at
time of passing decree, he may within
two years thereafter, and within three
months after his return, petition for
allowance of appeal, 572
to be entered in supreme court on docket
with equity cases, 575
proceedings iu probate court suspended af-
ter appeal, 575
may be waived before entry, 575
supreme court, in case of, may affirm for-
mer decrees, reverse the same in
whole or in part, or pass any other
order, and remit the case to the pro-
bate court, 575, 570
proceedings when appellant fails to enter ap-
peal, 57(1
jury trial on such cases may be had iu su-
preme court, • 576
(See Estates of Deceased Persons^ Administra-
tors^ Executors, GuardianSt lYtists, WillSj
1068
INDES.
PKOBATE COXTRTS ~co7itinued.
Special Jueisdictiox of Judges.
judges of, may commit luniitics to state lunatic
hospitals, in counties other than Suf-
folk, • 407
fees of, for committing- and discharging
lunatics, 40S
may commit girls to State Industrial School, 4M
may commit boys to State Reform School, 4iil
may order removal of lunatics in jails and
houses of correction, . .' 878
may authorize arrests on mesne process
and execution in civil actions, . G3o, 030
examine, discharge, or commit poor debt-
ors arrested, (i35-&40
may remove to hospitals poor debtors who
are insane, 639, G40
{Sec Judges of Prohatc and Insolvency.)
PKOCESS.
civil, not to be served on Lord's day, 434
punishment for arrest tuulor pretfuce of, &c., . 790
PKOFAJSTE CUBSUSTGAIirD SWEAKESTG.
how punished, 819
prosecution to be commenced in tvrcnty days, . 819
PROFERT.
in di'clurations, need not be made, 054
PROHIBITION.
writs of, may be issued by supremo court, . . . G53
PROMISSORY NOTES.
maturing on Sundays and public holidays,
when payable, 293
wlieu may be protested in such case, 293
payable on demand, when demand to be maclo
to charge indorser 293
liability of indorsers of, 203
makers of, to have same defence agaiust in-
dorsers as against payees, 293
grace not to be allowed on, 29-1
payable within this state on a day certain, grace
to be allowed on, 294
of less than five dollars, other than of banks,
not to be issued and circulated as cur-
rency, under penalty, 810
forms of declarations, aud answers in actions
on, 003, OGS
actions upon, %vitnessed, may be brought by
payee or his executor, in twenty years, 777
PROPRIETORS.
of common fields and wharves, &c., in ac-
tious against, how process to be
served, &c., 022,023
PROSECUTIONS.
for criminal offences, not to bar civil actions, . . S40
criminal, for certain misdemeanors, may be
stayed, upon reparation to party in-
jured and payment of costs, . . . 834, 839
such proceedings to bar civil action, . . 839, 840
PROSTITUTION.
abduction of immarried woman for, how pun-
ished, 817
prosecutions therefor limited to two years, . . 817
buildings, &c., resorted to for purposes of,
deemed common nuisances, 454
use of building for purposes of, to render
lease void, 454
penrdty on landlord for lettuig building for pur-
pose of, 454
PROTEST.
of bills of exchange, ^c, maturing on Sunday
or on a public holiday, to be made on
the next preceding business day, ... 293
PROTEST — contimied.
making or procuring false, how punished, . . . 805
fees of notaries public for, 757
PROTESTANT EPISCOPAL CHURCH.
powers and duties of officers of. 202
PBOVERS OP FIRE-ARMS.
provisions concerning, 2G0, 261
{See Arms.)
PROVINCE LANDS.
limitation to siiitu for recovery of lands by com-
monwealth not to apply to, 776
PROVTNCETOWN.
land iu, cfded to United States, 44, 45
lobster fishery on shores of, regulated, &c„ . . 432
PROVISIONS.
what exempt from levy on execution, and from
attachment, 624, 688
punishment for knowingly selling diseased and
corrupted, without notice, 822
fraudulently adulterating food or drink, . , 822, 823
PROXIES.
In banks, vote of stockholders by, 304
form, execution, aud filing of, 304
to bo recorded, 304
to be valid for three months only from date, 304
list of, to be read at meetings, 304
not to be received by salaried officers, under
penalty, 304
In insurance companies, how executed,
used, &c., 323, 326
In manufacturing companies, how execu-
ted, used, &c., 337
In railroad companies, how executed, used,
&c., 350
PUBLIC ADMINISTRATORS.
one or more to be appointed by governor, &c.,
in each county, ^ 486
when administration to be granted to, , . . 483, 486
when not to be granted to, 486
to be discharged when husband, widow, or heir
claims administration, 486
powers of, to cease upon appointment of suc-
cessor, &c., 4S6
to surrender letters of administration, &c., if
will of deceased is proved, A-c, . . . 4SG
aud to account to executor or ailministrator who
succeeds in such case, 4S0
to give bond as other administrators, 486
or general bond ; conditions thereof, , , . . 486,4^7
under general bond, to account annually to pro-
bate court, 487
additional sureties may be required by probate
court at any time, 4S7
limitations, under general bond, to begin to run
iu each case from date of letters of ad-
ministration, 4S7
to administer estates, &c., as other administra-
tors, and may be licensed to sell real
estate, &c., 4s;
may sell all real estate in certain cases, .... 487
to take oath, give bond, &c., iu such cases, as
other administrators, 487
to render accoimts annually, in all cases, until
trust is fulfilled, 487
balance in hands of, to be deposited with state
treasurer, 487
not depositing balance with treasurer within
one month after notice, bond of, to be
put in suit, 4Sr
after such balance is deposited by, heirs, &c.,
may take administration thereon with-
in six years, 4S7
INDEX.
1069
PtTBLIC ADMTNISTRATOBS — confin«cd.
to be notified in kuc-U case, and to appear for
commonwoalth, 487
Upon death, removal, ic, of, accounts to be ex-
nmined by another, 48S
such other to be appointed administrator on all
estates not administered, 4SS
neglecting^ duties, &c., district-attorneyB to pros-
ecute if there are no heirs, 488
money and personal property found on or near
a dead body, when to be given to, . . 850
PUBLIC AMUSEMENTS.
provisions coneernini,'', 463, 4G4
PUBLIC ASSEMBLIES.
penalty fur disturbing,'-, 820
PUBLIC CONVEYANCES.
liability for ciireloss nianag-ement, itc., of, . . . "04
PUBLIC LANDS.
conveyances of, to be subject to approval of gov-
ernor and council, 55, 139
PUBLIC LIBRARIES. (See Libraries.)
provisions iinu-ernin;^' establishment of, .... 208
PUBLIC OFFICERS AND OFFICES.
{SW O_0rers and Ojjices.)
PUBLIC PROPERTY.
who to have charge of, 55
magazines, munitions, &c., to be in custody of
adjutant-general, 55
safe keeping of, at public expense, 55
PUBLIC PROPERTY — roijftjmetJ.
tools and implements to be marked as, 55
unauthorized possess^ion of. how punished, . 55
PUBLIC REPORTS AHD DOCUMENTS,
aunual, when to be made by certain public offi-
cers, 53
special, when may be made, 53
certain, to be laid before legislature in printed
form, 53
when certain reports may be put in type, .... 54
number of, to be printed, and distribution there-
of, 54
complete sets of public series of, to be fur-
nished to towns, 54
penalty on officers neglecting "to make reports,
&c., 54
PUBLIC "WORSHIP.
right and duty of, 14, 34
houses for, exempted from taxation, 74
pnnislmient for disturbing assemblies met for, . 819
PUNISHMENT.
no l;iw to be made subjecting to capital or infa-
mous, (except in army or navy,) with-
out trial by jury, 9,15
cruel and unusual, not to be intiicted, 16
when not provided by statute, to be according
to common usage, 844
may be commuted by governor, 855
Q.
QUAKERS.
may affirm instead of swearing, 30, 33, 673
how exempted from enrolment in the militia, . 93
overseers of monthly meetings of, to be body
corporate to take and hold grants for
use of meeting, &c., 206
to manage, &c., property, and prosecute and
defend actions concerning the^samc, , 206
limitation of such grants, &c., 206
marriages of, may be solemnized as heretofore
practised, 530
QUARANTINE.
may be established by towns, 102
may be establiahed in another town witli its
assent, 192
by two or more towns, jointly, 102
of vessels, and regulations concerning, may be
established by board of health, . . . 192
regulations to extend to all persons and effi:;cts
on board, &c., ' 192
penalty for violation after notice, 192
vessels, when found, &c., may be removed to,
by board of health, 192
expenses of, how and by whom to bo paid, . . . 192
penalty on seamen and passengers of infected
vessel, &c., for refusal to answer on
oath certain questions, 102
QUARTERMASTER-GENERAL.
bow aiipointurl, 97
QUESTIONS OF LA"W.
arising in counties of Barnstable, Bristol, Dukes,
Essex, Middlesex, Nantucket, Nor-
folk, Plymouth, and Suffolk, for su-
preme court, to be heard by court for
commonwealth, 555, 556
in other coimties, at terms of the court estab-
lished therefor, 556
90
QUESTIONS OP IjAW — continued.
or by consent of parties, or order of court,
in said court for commonwealth, . . .
how raised, entered, heard, and determined,
&c., 554-557, 563, 506,
entry of, in supreme court, not to transfer cases
but only the questions,
(See Appeals^ E.rcepHons.)
In equity cases before single judge, how may
be reserved and reported to full court,
(.S'ee Equity.)
QUIETING TITLES.
of reid estate, proceedings for,
QUINTAL.
of fish, weight of,
QUITCLAIM.
deed of,
(See Deed.)
QUO -WARRANTO.
writ of, may be issued by supreme court, . . .
who may apply for leave to tile information in
nature of,
when application may be made and heard, . . .
hearing to be had summarily, and leave granted
to file information upon probable
567
567
567
690
264
466
in what cotmty to be filed, and notice thereof, ,
after leave given, court may issue injunction, . .
attorney-general may intervene, and ask for
judgment or forfeiture,
in such case, he shall have control, ....
complainant no longer responsible for costs,
court to enter such judgment as the princi-
ples of the common law require, . . ,
when attorney -general does not intervene, judg-
ment of forfeiture not to be entered, .
form of judgment,
744
744
744
744
744
744
744
744
744
1070
INDEX.
QUO ■WAKRANTO — fon/zrt«ef?.
if jud^^ment is for defcuduut, he shall have
costs, as la action at law, against the
complaiuant, 744
other duties of attorney-general not hereby af-
fected, 744
costs on petition for, 781
Q.UORITM.
of federal senate, and house of representatives, ^
of senate of Massachusetts, ,'1.;;'.»
of house of representatives, Zi, -i'.*
of tlie BuiJremo court, 553
Justices of the peace may discharge poor
debtors and bail bonds, 635, G12
R.
RACE GROUInTDS.
iu cities and towns, not to be laid out or used
without consent of selectmen, &c., . . 825
to be under control of selectmen and mayor and
aldermen, 825
imauthorized, to be deemed common nuisances, 825
persons owning, using, &c., punished, , . . 825
RACE FOnSTT.
land on, for lighthouse, ceded to United
States, 44
RACnSTQ.
for wagers, bets, or money, &c., horses, &c.,
declared unlawful, 825
persons engaged therein, how punished, .... 825
lauds in town or city not to be used for, .... 825
raHjErs aistd brawlers.
common, huw arrested and i)unished, 820
RAILROAD CORPORATIONS.
subject to provisions of General Statutes, as far
as consistent with charters, 350
to publish lists of imclaimed eflfects of pas-
sengers, 426
to give notice to selectmen, &c., of towns
and cities where articles are, . . 426, 427
penalty on for neglect to advertise, &c., . . 427
not subject to insolvent laws, 598
conductors and engine drivers exempted from
military duty, 93
officers and agents of, to furnish information
concerning alien passengers, under
penalty, 397
1. Organizatiox, Officers.
government of, vested in board of not loss than
<ive directors, 350
directors to elect one of their number to be
president of the board and corpora-
tion, 350
may choose a clerk, who shall be sworn,
and a treasurer, who shall give bonds, 350
with exception of president, no officer, &c.^ re-
ceiving salary from c<)rporation to
which tlic state credit has been loaned,
to be eligible as director, 350
2. Meetings, Votes.
meetings of, to be called and warned according
toby-laws, 350
each member of, entitled to a vote for each share
held by him, if not more than one
tenth of whole number, 350
proxies not valid unless executed ^vithin six
months of meeting, &c., 350
* no person as proxy, &c.,to cast more than fifty
votes, unless shares araowned by one
person , 350
no officer of corporation, as proxy, to cast more
than twenty votes, 360
RAILROAD CORPORATIONS — f OH ?/nMerf.
:!. Capital Stock, Assessments, &c.,
no corporation chartered since June 20th, 1852,
to begin to build road until certif-
icate is filed with secretary, &c., stat-
ing that all stock, &e., has been sub-
scribed for, &c., and twenty per cent,
paid in, 350
president and directors may make assessments,
&c., to be paid to the treasurer, . 350, 351
treasurer to give notice of assessment to stock-
holders, 351
if stockholder neglects to pay assessment for
thirty days, his shares may be sold by
order of directors, &c., 351
stockholders liable to corporation for deficiency
on sale of shares, 351
and entitled to the surplus if they sell for
more, 351
no assessment to be laid on shares to greater
amount than the sum at which they
are fixed by charter, Ac, 351
the directors may declare shares forfeited if
nothing has been paid after thirty days
from time assessment has become due, 351
and may transfer them to any responsible per-
son, &c., 351
shares to be deemed personal estate, how trans-
ferred, &c., 351
may hold stock in a telegraph company, &c., not
exceeding two hundred dollars for
each mile, &c., 351
4. Charters.
petition for, not to be acted on unless accompa-
nied by report of engineer, map, Ac., 351
plans and profiles presented to committee in
hearing of petition for, to be placed
in state library, 351
petition for, not to be acted on until notice,
designating route, &c., has been pub-
Ushed, &c., 351
legislature may require surveys, plans, and esti-
mates, 351
every charter to confine the road within the
limits indicated by such notice, .... 351
and specify the several cities and towns
through which the road may pass, &c., 351
5. Location of Koad.
corporation may lay out road not more than five
rods wide, 352
to file with county commissioners, within one
year, the location of road, &c., .... 353
6. Taklsg Land, &c.
may purcliase or take land, &c., for making or
securing its road and for depot and
station purposes, 352
INDEX,
1071
EAILROAD CORPORATIONS — con^"H!«rf.
if uot able to obtiiiu such laud, by a«jreemeut
with owner, shall pay damages esti-
mated, &c., by county commissioners, 3o2
land, &c., ivithout limits of road, not to be so
taken ivithout permission of owner,
unless county commissioners pre-
scribe limits, «tc., . 352
land taken, &c., for depot and station purposes,
&c., not exempt from taxation, .... 352
7. Damages.
corporation to pay all damag^es occasioned by
laying out, &c., its road, or by taking
land, &c., 352, 355
Buch damages to be estimated by county com-
niissioners, as in laying out lughwuys, 352
application to be made for laud, &c., before
taking, &e., 352
either party, dissatisfied with commisBioners*
estimate, &c., may, within one year,
apply for jury, &e., 352
upon Buch application, prevailing party to re-
cover costs, and proceedings to be as
provided for recovery of damages in
laying out liigh ways, 352
but no jury to altee or reverse any order of
commissioners in relation to construc-
tion and maintenance of embank-
ment, drains, &c., 352, 355
owner of land in adjoining counties may apply
to commissioners of either county,. . 352
and cither party may apply for jury, &c., . . 352
jury to be from same county as commissioners,
and to estimate damage as though
laud lay in one county, 352
guardians or trustees may release damages, &c., 352
damages to be assessed to person having differ-
ent interests in land, as provided in
other cases, &c., 353
to whom to be paid, &c., 234,235,353
mortgagors and mortagees to have same rights,
&Q., as land owners, 353
petitions for estimate of damages to state all
mortgages known, &c., 353
mortgagors and mortgagees may join in such pe-
tition, 353
notice to be given to all interested as mortga-
gors, &c., that they may appear and
become parties, &c., 353
damages to be paid to satisfy mortgages when
mortgagors, &c., petition or become
parties, &e., 353
separate judgment to be entered for each mort-
gagee, to be held in trust, &c., .... 353
balance to be paid to mortgagor, &c., 353
application for damages for crossing private
way by railroad to be made within
year, 353
for land, &c., taken, to be made within
three years, unless suits are pending,
&c., 353
provisions when suits are pending, 353
if, upon application for damages, or jury, pro-
ceedings are quashed, Arc, applicant
may commence anew at any time
within one year, 353, 354
if requested, commissioners may require se-
curity of corporation for payment of
damages and costs, A-c, 354
upon petition of owner, &c., they may require
of corporation further security, &c., , 354
RAILROAD CORPORATIONS — f07i^n«erf.
and all right of corpoiatiou to enter upon or
use land, &c., suspended until it gives
security, &c., 354
upon award of damages, &c., against corpora-
tion, the commissioners, after time to
petition for jury has expired, may is-
sue warrants of distress to compel
payment, &c., 354
and if corporation, for thirty days after, neg-
lects to satisfy the same, idl right to
enter, &c., except to make surveys,
suspended, &c., 354
supreme judicial court may restrain corporation
from entering such laud, &c., 354
corporation may tender damages after commis-
sioners have estimated them, .... 354
if damages are not satisfactory, costs how taxed
when determined by jury, 354
damages in Boston, to be estimated by mayor
and aldermen, 354
either party, if dissatisfied with estimate of
damages by mayor and aldermen, may
apply for jury at next term of supe-
rior court, &c., 354
when awarded for land of married woman, how
disposed of, 539
8. Alteration of Koad.
on what terms may vary direction of road, with-
in their prescribed Umits, after taking
land, 354,355
liable to the owners of land taken, &c., .... 355
9. CONSTRUCTIOX.
county commissioners may order corporation to
construct, &c., embankments, drains,
&c., for security of owners, &c., . . . 355
in case of neglect, supreme judicial court may
compel performance, &c., 355
if corporation, for more than forty-eight hours
after notice of such neglect, have neg-
lected to commence the work, &c.|
person iuterestcd may maintain an
action of tort, Ac, 355
to make, &c., fences upon railroad constructed
prior to April 17, 1^1, where owner
has not received damages assessed,
&c., 355
to erect and maintain suitable fences, i-c. entire
length of road constructed subsequent
to May 10, 1S4G, except at crossings
of turnpike, &c., 355
to erect barriers, &c., to prevent entrance of cat-
tle upon t!ie road, 355
penalty for neglect to erect fences, &c., .... 355
supreme judicial court may compel compliance ;
and upon neglect, may restrain corpo-
ration from crossing any turnpike, &c., 355
to furnish plan of land taken, to o\vner, before
proceeding to construct, &c., . . . 355, 356
and to fence land if requested, &c., 356
upon demand of owner, ^vithin three years of
taking, to furnish plan, &c., ^vithin
thirty days, 356
if plans, &c., are not furnished, corporation not
to enter land, &c., except for survey-
ing. &c., 356
10. Crossing Highways.
turnpike road or otlier way not to be obstructed
by crossing, 356
1072
INDEX.
KAILKOAD CORPOKATIOWS — continued.
to cross over or under turnpike, highway, or
town way, &c., 356
may raise or lower highway or town way,
&c., 356
before proceeding- to croBS, alter, or excavate,
&c., to obtain decree from county
commissioners prescribing wliat al-
terations may be made, &c., 350
and before excavating, &c., to give security, &c., 365
upon application of mayor and aldermen or se-
lectmen, the county commissioners
may prescribe what alterations, &c., . 356
and may order the corporation to give security,
&c-» 356
if corporation has excavated without obtaining
such decree, the supreme judicial
court may, by injunction, restrain the
corporation, .fee, 356
may raise or lower turnpike, &c., 356, 357
hut before making such alteration, to notify
president or clerk of turnpike corpo-
ration, &c., 350,357
parties disagreeing as to alterations, either may
appeal to county commissioners, &c., 357
if corporation, &c., neglects to make altera-
tions, proprietors may recover dam-
ages, 357
mayor and aklermen or selectmen may request
corporation to raise or lower turnpike
at railroad crossing, 357
and if corporation neglects, may apply to coun-
ty commissioners, 357
couuty commissioners may decide upon neces-
sity of raising or lowering ways, . . 357
mayor and aldermen to pay costs upon decision
that alteration is not necessary, . , . 357
may carry decision into effect if corporation
neglects, and recover against corpora-
tion all charges, Ac, 357
may alter the course of a Iiighway or town way
upon obtaining decree of county com-
missioners, &c., 357
before granting decree, after notice to town,
&c., commissioners to decide that al-
teration will not injure the way, . , , 357
to pay all damages occasioned to private prop-
erty, &c., 357
may, with consent, &c., alter course of a turn-
pike road, canal, .tc, 357
turnpike road or other way may be laid across
railroads when authorized by commis-
sioners, &c., 357
expenses of constructing way at such crossing,
Ac, to be borne by owners of way, . 357
notice to be given to corporation by commis-
sioners before laying out way across
railroad, <tc., 357
commissioners may direct manner of construct-
iug, &c., not permitting snch crossing
to be at a level unless public necessity
requires it, 357
if such way pass over railroad, commissioners
to determine in what manner bridge
shall be constructed, 357, 358
commissioners may authorize mayor and alder-
men or selectmen to lay out way
across a railroad, &c 358
may permit it to be laid upon a level with
railroad, Ac 358
the corporation shall, at their own expense,
BO guard, Ac, their rails, by plank,
RAILROAD COTtVORATlONS— continued.
Ac, where road is crossed by turn-
pike, as to secure safe and easy pas-
sage across 385
shall establish additional safeguards at such
crossing if required by commission
crs, 355, 358
shall keep in repair all bridges, Ac, over or
under any turnpike road, canal, high-
way, or otlu'r way, 358
original jurisdiction of questions touching ob-
structions to turnpikes, Ac, vested in
couuty commissioners, 358
supreme judicial court to have jurisdiction in
equity, and may compel such corpora-
tions to raise or lower any turnpike,
Ac., and to comply with orders, Ac,
of commissioners, 358
11. Crossings in Private Lands,
in case of difference between o\vner of land and
corporation as to place or manner of
crossing, either party may apply to
the commissioners, Ac, 358
commissioners may make order in relation
thereto, Ac, and as to costs, Ac, ' . . .358
may alter crossings deemed inconvenient
by owner or corporation, upon appli-
cation of eitlier party, 358
unless the corporation makes application,
commissioners not to order corpora-
tion to construct or maintain crossing
except where it is liable, Ac, .... 358
such application not to be proceeded with
until applicaut furnishes recognizance
to county for payment of costs, Ac, . 358
12. Damages at Crossings.
corporation hable to towns, Ac, for expenses
incurred by neglect at crossings, . . . 359
liable to fine for obstructing ways, 359
towns, Ac, subject to damages for injury by de-
fect in highway within location of rail-
road, may recover of corporation, if
liable, 359
1.3. Purchase of Turnpikes.
turnpike corporations may assign franchises as
to the whole or part of its road, Ac, 359
rights and duties of such turnpike corporation
then to cease as to its road, Ac, and
railroad may be located thereon, Ac, 359
no part of a turnpike road to be assigned with-
out consent of commissioners or su-
perior court, 359
damages caused by taking property, Ac, how
to be estimated, 352, 359
14. Drawbridges.
corporation to provide superintendent of draw-
bridge, Ac, 359
powers and duties of superintendent, 359
duties of masters of vessels passing through
drawbridge, 359
time allowed for railroad trains to cross, . . . 360
rights of snch corporations, as they existed on
May 21, 1855, not abridged, 360
penalty for obstructing superintendent, .... 360
for impairing bridge, Ac, obstructing draw,
Ac, 360
for injuring railroad bridge, wharf, Ac, or
hindering superintendent, Ac, .... 360
INDEX.
1073
KAHjROAD COR'POnAT^lO'NS — continued.
15. Regulations for operating Road.
to provide one brakeman to every two cars in
passenger train, 360
to the hindmost car of every freight train,
under penalty, 3G0
to cause bells to be placed on locomotive en-
gines, and to be rung before crossing
ways, &c., • • • 360
sign-boards to be erected at crossings, &c, . . . 360
at travelled places, upon application by se-
lectmen, A-c, to commissioners, &c., 360,361
costs of application, by whom to be paid, . 361
when shall also erect gates across their road,
and station persons to open and close
them, 361
may be required by county commissioners to
station flagmen at crossings, 361
penalty on, and liability of, for neglecting so to
place bells, boards, gates, Ac, .... 361
gate-keeper and flag-man for neglect of
duty 301
corporation liable in damages also for their
neglect, &c., 361,302
g'ates at crossings may be altered by county
commissioners, 362
locomotive engines of, to bo stopped within five
hundred feet from intersection ^\ith
another railroad, 362
engines of, need stop only once for crossings
mthin six hundred feet of each other, 362
penalty on, for loss of life of passenger by neg-
ligence of, or of their agents, 362
of any one not passenger or employee, by
negligence of, or of their agents, . . . 362
recoverable by indictment, to use of family,
or heirs of deceased, 362
indictment to bo prosecuted within one year
after injury, 362
not to extend to case of person unlawfully
walking, or being on railroad, .... 362
punishment of agent, &c., for negligence, . 361, 302
to give notice to coroner of accidents attended
with loss of life 362
liable for damages caused by fire from their en-
gines, 362
to have insurable interest in property exposed
to fire from their engines, 362
10. Penalties for OBSTRrcTixG Road, &c.
penalty for walking or standing on track of,
knowingly, 363
on, and liability of, persons for riding,
driving, ite., beasts on road, after it
is opened for use, without consent, , 363
on persons by whose fault horses and other
beasts are at large on road, after it is so
opened, 363
for obstructing passage of engines or car-
riages, &c., on road of, 363
for attempting so to obt^truct, &C., 363
penalties accruing to, may be recovered by
treasurer, in an action of tort, .... 363
17. Accommodations for Passengers, &c.
to furnish reasonable accommodations for pas-
sengers, under penalty, 363
checks to passengers for baggage, &c.,
wlien requested, under penalty, &c., . 363
how may establish tolls, and regulate convey-
ance and transportation, 303, 304
90- 135
KATLROAD CORPORATIOKS — con^i»Mcrf.
penalty for fraudulent evasion, &c., of tolls or
fare, 364
persons refusing to pay toll or fare upon de-
mand, not to be entitled to passage,
&.C., 30*
IS. Relations of Con>'ecting Roads.
freight on connecting roads to be delivered
promptly and forwarded according to
directions, *. • 304
corporations, whose roads unite, may make con-
tracts as to transportation, 304
income from such contracts to be subject to
right of commonwealth to reduce
tolls, or to purchase roads, 364
required to allow use of thei%road by other cor-
porations authorized by legislature, . 364
compensation and times of such use to be de-
termined by commissioners appointed
by supreme court, if parties are una-
ble to agree, 364
where roads terminate in same place, each to
furnish depots, &c., 304
if parties cannot agree, commissioners to be
appointed by supreme court, &c., 304, 305
compensation of such commissioners, how paid, 365
locomotive engines, Ac, not belonging to road,
not to be run thereon ^^ithout consent
of corporation, 305
19. BoxDS AXD Mortgages.
bonds may be issued by, to amount of capital
stock, by vote of stockholders, . . . . 305
payable to bearer, &c., to be negotiable in
the same manner, and to the same ex-
tent, as promissory notes, 293
not to be issued without approval of finance
committee, &c., 305
binding, though sold below par, 365
to be included in any subsequent mortgage, 305
mortgages of property of, powers and duties of
trustees entitled to possession un-
der, 305,360
annual meetings of creditors and bond-
holders secured by, 306
election of trustees under, 360
equity jurisdiction of supreme court over,
306, 367
oiven to conunon wealth, terms and effect
of, 367
to be in full force, without being recorded, 367
what property bound by, 367
and bonds so given, directed to be record-
• ed in counties through which road
passes, 307
20, Returns and Reports.
books of, to be at all times open, under penalty,
to inspection of committee of legisla-
ture, 367
annual reports to be made by directors to secre-
tary of commonwealth, with one thou-
sand printed copies of same, 367
contents of, 367-369
to contain account of accidents, and causes
thereof, 369
to be made before the first Wednesday of
January, under penalty, 307, 369
if not full, directors to state reasons, . . . . 369
distribution of, 53
one set of reports to be furnished by secre-
1074
INDEX.
RAILROAD CORPORATIONS — coH^/Hwerf.
tary to each member of legislature,
&c., 369
special, to be made to legislature, upon
completion, (fee., of road, 370
21. Rights of Commonwealth.
state may purchase railroad after twenty years
from opening, &c, 370
HORSE RAILROADS.
corporations not subject to statutes conecrning-
railroads, except as provided in their
charters, 370
to be constructed witlun twelve months after
location, &c., 370
location to be voi^ unless coustruction com-
menced within six months, &c., . . . 370
penalty on traveller for fraudulent crasiou of
toll or fiire, 3G4, 370
cars to be stopped within one hundred feet of
intersection with steam raih-oads, . . 370
penalty on driver and corporation, »tc., .... 370
provisions respecting travel on roads not to
apply to, 423
annual report to be transmitted to secretary,
with one thousand printed copies of
same, 370
time of making, 370
penalty for refusal or neglect to malie, . . . 372
form and contents of, 370-372
secretary to prepare and transmit blank
forms for, 373
RAILS.
for protection of tombs, &c., destruction of,
how punished, 197,821,822
on or across town ways, &c., how removed, 24G, 251
on bridges and ways, liability for injury from
want of, 247
pnnislnnent for brcakincT, ronlnvinL^ fVc, . . . . 803
RAnsrSFORD ISLAJSTD HOSPITAL.
provisions respecting, -100
RAMS.
and Iie-goats, when not to go at lartre 187
p''n;ilty on owner, for suffering to go at large, . 1S7
RAPE.
not a bailable offen.-e, S36
ravishing a female child under ten years, how
punished 793
a female of ten years or more, 793
assault witli intent to commit, 703
RATABLE POLLS.
census of, when and how to he taken, . . . 107, 1G8
REAL AND MIXED ACTIOTsTS.
special pleas in bar in. abolished, and sAl mat-
ters which might formerly have been
pleaded in bar, may be given in evi-
dence under general issue, 656
not to abate by death of parties, 602, 093
on death of parties in, how heirs and devi-
sees may be admitted to prosecute
and defend, 649
how to be conducted, when part of several ten-
ants are out of state, 647
not to be defeated by descent or discontinuance, 602
writ of right, and certain other real actions,
abolished, saving existing rights, . . 096
tenants and persons in possession liable for
three times amount of damages for
waste while actions for possession are
ponding, 709
executions for possession to be recorded in
REAL AJSTD 3V[IXED ACTIOH^S- rovfimwd.
registry of deeds within throe mouths
after levy, 690
limitation of, 523, 775, 776
Writ of Enthy.
lies for recovery of all estates of freehold, un-
less a different action is prc'scrihcd, . G92
may be brought by parties not concluded by
judgment in favor of commonwealth
in informations, 718, 719
demandant to declare ou his o\vn seisin within
twenty years, without specifying any
particular day, G92
to allege disseisin, but need uot aver a tak-
ing of profits, 692
to set forth the estate claimed, but not the
original title, 692
not requirL'd to prove an actual entry under
his title, 692
shall recover if lie proves his title, and that
he has a right of entry, 692
on mortgage titles, to declare seisin to be in
mortgage, 654, 712
who may be considered as a disseisor for pur-
pose of trying right, 692
pleading and practice in, anil trial of, how con-
ducted, 092, 693
tenants in common, and others claiming same
premises, may join in suit for recov-
ery thereof, or any one may sue alone
for his share, C92
demandant may recover such part as he proves
title to, though less than is demanded, 692
Rents and profits, and damages for de-
struction and waste, may be re-
covered in, 693
shall be assessed by jury, when issue of
fact is joined, unless otherwise or-
dered by court, C93
may be assessed by arbitrators, or by as-
sessor appointed by court, 694
how estimated, 093
value of use of improvements not to be com-
puted, 693
not to be estimated against tenant for longer
term than six years, 693
except by way of set-off for improvements
claimed, 694
Improvements, how recovered, &c., when
the teuaut in the action, or tliose un-
der whom he claims, have held pos-
session six years, he shall b? compen-
sated for improvements, 693
so if he has held less time, under a title which
he believed to be good, 693
improvements when claimed, to be suggested
on record by tenant, with a request
that their value be ascertained, . . . 093
suggestion to be entered at same term with plea,
xmless otherwise allowed by court, . 693
when value of improvements shall be assessed
by jui-y, and when by court, . . . 093,694
may in all cases be assessed by arbitrators or as-
sessors appointed by court, 694
to what amount allowance for improvements
limited, 094
sum allowed for improvements to be set off
against rents and profits, when due, .... 694
in such case, if balance is for demandant, he
shall have judgment therefor, as well
as for seisin, 694
INDEX.
1075
HEAL AND MTXED ACTIONS — continued.
if for tenant, demandimt to pay before tak-
ing out execution for seisin, 69i
demandant not to recover against tenant, &c.,
subsequent rents and profits, until he
pay such balance, 6W
if improvements exceed rents and profits ac-
crued within six years, tenant charge-
able with earlier reuts, so far as to
balance his claim, 601
demandant's right to maiutiiin actions against
third parties, for raesne profits and
damages, not affected by above pro-
visions, G94
when tenant claims for improvements, demand-
ant may require that value of estate,
without improvements, shall be deter-
mined, G94, 710
how and by whom such value shall be ascer-
tained, CW
if judgment is for demandant, he may offer, on
record, to relioquisli to tenant for
such value, G(H
what time offer to be made, CW
if demandant relinquishes, tenant shall hold
estate on paying such value, G94
how such payment shall be made, and demand-
ants right, if not made, 094, 095
provision for payment, and issuing of writ of
seisin, in case of death of either party
after judgment, Gi)j
remedy, and proceedings of tenant and his as-
signs, if subsequently evicted by force
of any title better than that of the
original demandant, G05
when demandant claims a life estate only, and
pays for improvements, provision for
adjustment between him and rever-
sioner, 695, 696
above provisions, as to rents and profits, im-
provements, and estimating value of
premises, not apply to actions on
mortgages, 690
Petitions for Settlement of Title.
party in possession of land claiming freehold,
on term of not less than ten years,
may, on petition to supreme court,
compel adverse claimant to bring ac-
tion, or be barred of his title, .... 696
proceedings therein, G90
Other Real Actions.
Writ of dower, 135
For partition of lands, 098
Forcible entry and detainer, 707
For foreclosure and redemption of mort-
gages. 712
Informations for intrusions, 717
BEAIi ESTATE.
how construed, 51
what to include for purpose of taxation, ... 74
when taxable, 75
mortgage, to whom taxable, 75
of religious society, held as ministerial fund,
when and to whom taxed, 76
conveyances of, by deed, how made, &e., . . 405-467
record of, 154, 155
g-eneral rules of descent of, 474
subject to payment of debts of owner, . 474, 476, 489
may be taken, held, transmitted, and conveyed
by aliens, 473
REAL 'ESTA.T'E — continTied.
title to, not invalid on account of alienage of
former owner, 473
title to, conveyed by commonwealth, not af-
fected by such provisions, 473
when may be sold for payment of debts of de-
ceased person, 489
taken on execution by executor, &c., to be
deemed personal assets, &c., 490
held by executor, &c., on mortgage or execu-
tion, may be sold for payment of
debts, &c., 490
if not so sold, how distributed, 490
executors, &e., chargeable with income of, if
received, 495
sale of, by executors, administrators, and guar-
dians, how licensed, made, &c., . 510-515
what liable to be sold in such cases, 511
including rights of entry, &c., may be taken on
execution, 516, 517
no action to be brought on contract for sale of,
unless such contract is in writing,
&c., 527
may be held, &c., by married woman, to her
separate use, &c., 537, 538
of married woman, how conveyed, 538
how conveyed, when she or her husband is
under guardianship, 539
if husband is out of state, &c., how con-
veyed, &c., 542
when taken for railroad, &c., damages for,
how disposed of, 539
conveyance of encumbered, without disclosing
the encumbrance, how punished, . . 802
penalty for selling and conveying land attached
on mesne process witliout notice, 802, 803
how attached, 02Q
proi-eedings in levy of execution on, . . . 517-521
mortgages on, provisions respecting redemp-
tion, foreclosure, &c., 712-717
partition of, 098-706
KEAL ESTATE LYXKTG IN COMMON.
how proprietors may become a corporation, . . 379
justice of peace may call meeting, &c., .... 379
notice of first meeting, how given, 379
organization of proprietors, &c., 379,380
moderator's powers, ifec, 380
clerk, treasurer, collector, &c., may be chosen,
379, 380
tenure of their office, 380
Clerk, to be sworn, and to record all votes,
&c., 380
Treasurer, to receive and pay out moneys,
Ac, 380
Proprietors, may sue and be sued, &c., . . . 380
not to sue individually, and also as corpora-
tion, for the same injury, 380
may make by-laws, &c., 380
by-laws, with penalties annexed, to be ap-
proved by county commissioners, in
the county where the estate lies . . . 380
powers of, at legal meetings, 380
to vote according to shares of each, .... 380
may raise money by assessments, itc., . . . 380
shares of, may be sold to pay assessments,
&c., 380
notice of sale, how to be given, &c., . . . 380
how redeemed after sale, 380, 381
when proprietors may sell, &c., 381
may, after division, hold meetings, and do
all acts necessary to close their busi-
ness, 381
1076
INDEX.
KEAIj estate, &c.~conthmed.
how long after cUvisiou they may act as a cor-
poration 381
records of, after final division, where to be de-
posited, 381
KECEIVEKS, &c.
may be uppointed by supreme judicial court
when charters of corporations ex-
pire, &c., 388
powers and duties of, in such cases 388, 389
Of rents and profits, may be appointed by
supremo court in equity, in suits be-
tween copartners, joint tenants, and
tcnimts in common, 550
Of goods, &c., known to be stolen, &c.,
how punished, 801
effect of restitution of stolen property, . . 801
receiver may be tried before the thief, . . . 801
indictment need not aver conviction of thief, 801
may be punished by police courts and trial
justices, 5rO, GOO
of embezzled property, knowiugf, &:c., 801
second convictions, and three convictions at
same term, 801
common receivers, who to be deemed, and how
punished, 801
KECOGl^IZAWCES.
to pay costs, ou petition for highways, town
ways, &e., 232, 241
on appeal to jury in highway cases, 235
by town or city, ho\v entered into, 159
by town, &c., need not be with sureties, , , . , 159
to prosecute an appeal in civil cases, .... GO?, 708
of poor debtors, arrested on mesne process or
execution, 635, 036
remedy on such recognizances, G41
surrender of debtor by sureties on, how
made 641
In Criminal Cases.
condition of, how to be framed, 834, 835
when may be taken by magistrate, at prisoner's
request, without examination, . . 831, 832
on appeal, in cases of liquors adjudged for-
feited, 447
by parties convicted of violation of liquor law, 448
on appeal from sentence as rogue, common
drunkard, «&c., commission of like
offence before judgment on the ap-
peal to be breach of recognizance, . . 821
rogues, common drunkards, A:c., at any time
after arrest, on recognizing with sure-
ties for good behavior, may be dis-
charged 821
when prisoners to be held on their own, only, . 840
to keep the peace and be of good behavior,
provisions concerning, .... 828, 829, 845
upon breach of condition tliercof, suits to
be commenced by district-attorney, . 828
to keep the peace, &c., penalty of, on suit af-
ter forfeiture of, may be remitted in
whole or in part, 829
to prosecute exceptions, and where report is
made, 844
when party may be discharged, on paying
costs and recognizing to be of good
behavior, 821
taken by magistrates, for a prisoner's appear-
ance at a court, to be returned by
them to clerk of court or district-at-
torney, 835
Upon refusal or neglect, magistrate may be
BECOGI^IZANCES — fon/vHwerf.
compelled forthwith to return tbo
same, 835
may be proceeded against by attachment,
as for a contempt, 835
in wliat cases may be discliarged, by magistrate
who takes it, on satisfaction being
made to the party injured, 8:14
order to discharge, in such c^ise, to be iiled in
clerk's office before sitting of court, . 834
default of appearance of person bound by,
to be recorded, and process issued
against him, 835
how surety in, may be discharged after default,
by paying to clerk, &c., i<:o
in suit on, on behalf of commonwealth, court
may remit part or whole of penalty,
829, 835, 836
action on, not to be defeated by certain irreg-
ularities and defects of form, .... 836
judgment on, where penalty is forfeited to
state, may be reviewed for any suffi-
cient cause, 836
what court to grant, and mode of proceeding, . 836
petition to state grounds relied on, 836
what notice to be given tliereon, 836
if, on review, judgment is reversed, or given for
less sum than has been paid, differ-
ence is to be paid to petitioner by the
state, 830
what officer to make payment, i^^O
if review not granted, nor judgment altered,
state may have costs s:i6
of witnesses, 833
to appear as a witness, binds a minor and mar-
ried woman, 833
to keep the peace, 827-^29
For Debts.
■what debtors may bind themselves by, 770
before whom to be taken, and form of, . . . 770, 771
before superior court, or the clerk, 770
before justice of the peace or police court, . 771
recognizance to be attested and recorded, . . . 771
not to be taken unless conusec is known, . . . 771
execution to issue if debt is not paid, 771
proceedings for obtaining, 771
where to run, 771
not to issue after three years, 771
but, after that time, conusee, or his execu-
tors, &c., may have scire facias or ac-
tion of contract, 771
creditor may have alias and other successive
executions, 771
if execution issues, &c., wrongfully, person
injured may have audita querela, or
other remedy, as if execution issued
upon a judgment, 772
proceedings wlien conusor or conusee dies, . . . 771
where there are several conusees, and one of
them dies, 771
fees for taking and recording a recognizance, . . 772
for other services, 772
writ of audita querela allowed to persons
injured by wrongful suing out of ex-
ecution, 772
KECOMPEWSE.
may be allowed by court to prosecutor after
conviction of burglary, larceny, &c., 799
so when offender has forfeited his recogni-
zance, or escaped, 799
to prosecutors of forgers and counterfeiters, . . 311
INDEX.
1077
RECORD OP CONDUCT.
of prisoners in jjiils and houses of correction, . 864
in state prison, 875
to be eubmittecl to governor and council;
&c., 875
effect of good conduct by such record, 864
RECORDS.
public, linen paper to be used for, 197
county commissioners, &o., to have books of,
bound, 197
to cause records left incomplete by clerk,
&c., to be made up, Ac, by succes-
sor, 197, 198
to provide fire-proofrooms far, and for reg-
istries of deeds, 144, 198
eelectraen, &c., to provide fire-proof safes for, . 198
when county, city, or town, may be transcribed, 198
transcripts of, made for toAvns, Sec, to be com-
pared and certified by clerks, &c., . . 198
Buch transcripts, certified under oath, to have
force of originals, 19S
not to be removed from offices, except, &c., . . 198
to bo open to public inspection, &c., 198
penalties for neglect of duty conceming, and de-
facing, altering, &c., 199
of proprietors of townships and common lands,
in whose custody to be, 199
of a religions society, &e., wliich has ceased to
exist, in whose custody to be, .... 199
forgery, A'C, of, how punished, 807
REDELIVERY.
of goods detained or secreted, suits for, mny be
brought in supreme court in equity, . 539
REDEMPTION .
Of mortgages on real estate, 713, 71G
Of mortgages of personal property, . . . 7G7
Of lands set off on execution, may be made
by dubtor within one year after levy, 520
what payments to be made or tendered,
and what allowances to be made on
redeeming, 520
amount due for, may be ascertained, at ex-
pense of debtor, by three justices,
whose certificate shall be couclusivc, 520
manner of choosing justices in such case, . 520
debtor may make tender of sum adjudged
to be due by sucli justices, though he
has tendered a different sum, .... 520
may recover laud by writ of entry, after
tender of sum due, if creditor does
not release, 530
suit in equity may be brought for, within
one year after levy, 520
debtor to offer in his bill payment of sum
due to creditor, 520
court to ascertain sum due, unless, &c., and
require debtor to bring it into court,
520, 521
debtor, in complying with such order, to
be entitled to judgment and execu-
tion for seisin, .% 521
costs in suit in equity for, how awarded, . 521
of estates for life, when rents and profits are
levied on, may be made at any time
before debt is satisfied, on payment
or tender of balance due, 521
proceedings in such case same as in re-
demption of other real estate, .... 521
Of mortgaged lands set off on execution,
may be made by debtor within one
year after levy, 521
REDEMPTION — co«(inHerf.
proceedings in such case same as in re-
demption of other lands, 521
If creditor pays the mortgage, debtor may
redeem from him as from mortgagee
if no levy had been made, 521
if debtor does not redeem sncli mortgage,
creditor to bold as assignee, free i'rom
right to redeem, 521
if debtor does not redeem riglit taken in
execution, creditor to hold premises
though debtor has redeemed mort-
gage, 521
Of rights of redeeming mortgage, when
sold on execution, niay hr, made
by debtor withiu one year alter sale, 522
payments to be made or tendered as in case
of redemption of lands, &c., 522
purchaser, on payment, to release to debtor, 523
if purirhaser pay mortgage, debtor may re-
deem it, and also the right of redomp-
tiou sold under execution, 52:^
right, how recovered by debtor, if pur-
chaser does not release or tender,
ic, 522,52;}
In special cases, of rights of redeeming
from levy, when taken on second
execution, may be made by debtor,
as in case of rights to redeem mort-
gaged land, 523
of land of deceased persons, taken on ex-
ecution, may be made by executors,
&c., 523,524
of land sold on execution in favor of state,
may be made as in case of sale of
right to redeem mortgaged land, . . 524
of premises sold under execution on judg-
ment for damages awarded for flow-
ago, 757
REFEREES.
corruption of, how punished, 813
acceptance of bribes by, how punished, .... 813
may make award concerning costs, 782
witnesses, how summoned before, &c., . . 072, 073
may administer oaths to witnesses, C73
(See Arhitrators.)
REFORM SCHOOL, STATE.
government i.A\ vested in seven trustees, .... 418
Trustees of, how appointed, and tenure of of-
fice, 418
to receive no compensation, but to be al-
lowed expenses, 418
to be a corporation to take and hold prop-
erty of institution, &c., 418
to have control of buildings, &c., at \V"est-
borough, 418
general powers and duties of, 418
to appoiut superintendent and other offi-
cers, prescribe their duties, and fix
their salaries, 418
duties of, as to instruction, discipline, &c.,
of boys, 419
may bind out boys till twenty-one years
old, 419
duties of, as to selection of master in such
cases, 419
one or more to visit school at least once in
two weeks, &c., 419
to make quarterly examinations, 419
abstract of quarterly reports to be hiid be-
fore governor and council annually, . 419
to make certain inventories annually, ... 55
1078
INDEX.
KEFORM SCHOOL, &c. — conthme(l
to ex.iniiue .sui>orinteutlcut's books once ia
six mouths, 410, 420
Treasurer of, to be appointed by governor
and council for three years, ..... 420
to give bond, 420
to submit detailed account of receipts, &c.,
to governor and council 419
Superintendent of, to be appointed by trus-
tees, 41S
to f;ive bond, 41it
to have custody of boys, 419
to be constant resident at the institution, . 419
to have charge of property, and kecx) books
of account, 419
books, &c., of, to be open at all times to in-
spection of trustees, 419
to account to treasurer for all money re-
ceived, &c., 419
to keep a register of boys, &c., 420
to make contracts lor the institution, . . , 420
may sue and be sued on such contracts, . . 420
suit by or agidnst, not to be abated by
reason of vacancy in office, 420
Nautical branch of, to be vested in live trus-
tees, 420
trustees, appointment, tenure of office,
&c., 420
to be a corporation for certain purposes, . 420
to have control of school-ship and other
vessels, 420
to cause boys to be instructed in naviga-
tion and seamanship, 420
may send boys to sea, &c., 420
superintendent to be master of school-ship,
&c., 420,421
Commitments to, by whom and how made,
.tc, 421
proceedings on complaint, &c., 421
form of warrant for, 421
variance from form, when not material, . . 421
judge to certify age and residence of boy in
warrant, 421
service of warrant, 421,422
duties of trial justice, &c., before whom
boy is brought for trial, &c., 422
proceedings on second commitment, .... 422
unfit subjects for, may be held for trial in
superior court, 422
appeal on order for, to superior court, . . , 422
fees of judges, &c., 422
may be ordered by superior court and su-
preme judicial court, when boys are
convicted of certain offences, .... 422
proceedings in such cases, 422
term of, 422
discharge of boy from, to release him from all
disabilities of sentence, 422
being sent to sea to operate as, 420, 422
inmates may be transferred from one institution
to the otlier, 423
by wliom to be transferred, 42o
support of, by towns, and liability of kin-
dred, 42:^
KEFORMED.
ccrtitin convicts may be discharged when re-
formed, 859
when discharged, and committing the offence
anew, how punished, 821, 859
REGISTERS OF DEEDS.
not to huld cLTtani other offices, 30, 33
how and when chosen, and term of office, . . 70,71
REGISTERS OF DEEDS — confmwcf/.
in case of failure to elect, county cQinmission-
ers to issue warrant for new election, . 72
vacancies in office of, how filled, 72, 153
to be sworn, and give bond, . 153
to be resident of county or registry district, . . 71
return of votes for, 59-61
blanks to be furnished by county couunission-
ers to towns, &c., 147
special provisions for Suffolk county respecting
the election of, 59, 61
may be removed from office for incapacity , Ac, 153, 154
papers of, on removal, to be delivered to clerks
of courts, &c., 154
to reside in place where office is kept, 154
to keep office open every day except Sundays
and public holidays, 154
form of book for noting receipt of instruments, 154
to enter all instruments left for record in order
in which they are received, 154
to note day, hour, and minute when received, 154
not to record deed without certificate of ac-
knowledgment, &c., 468
to record deeds legibly, and note interlineations
aud erasures, 154
to certify on instrument recorded, time of re-
ceipt, number of book, «&c., 154
to keep two sets of indexes, 154
forms of such indexes, 154
to enter names of parties to instruments on
indexes, within tweuty-four hours of
receipt, 154, 155
how to enter name of grantor when conveyance
is made by sheriff, &c., 155
deeds of executors, &c., and partitions of land,
how to bo indexed, 155
to make annual returns to secretary of number
of instruments recorded, fees, &c., . . 155
form of such returns, 155
penalty for neglect to make such returns, . 155
fees of for official service, 787
exempt from serving as jurors, 079
instruments required to be recorded in registry
of deeds, to be recorded in registry of
county or district where estate hes, . 154
copies of indexes to be made annually, with
names of grantors and grantees as-
sorted alphabetically, &c., 155
copies of indexes, or new indexes, may be made
and printed for sale, &c, 155, 156
In Barnstable, special provisions respecting
former records, 154
In Berkshire, three registers and registry
districts, 153
limits of district and location of offices, . . 153
In Bristol, two registers and registry districts, 153
limits of districts, and location of offices, , 153
In Middlesex, two registers aud registry dis-
tricts, 153
limits of tlistricts, and location of offices, . 153
In other counties, office of, to be kept in
sliiretowu, 153
REGISTERS OF PROBATE AJJ"D IINT-
SOLVENCY.
wlion and liow chosen, 38, 70
return of votes for, • 59, 00
term of office, 70, 71
in case of failure to elect, governor to order
new election, 71
vacancy, how filled by election, 72
how filled until elections are held, G03
not to hold certain other offices, 30, 33
INDEX.
1079
REGISTERS OF PROBATE, &c, — continued,
to '^ivo bond to treasuror of the commoawealth, 602
to take oaths ]ireseribed by constitutiou, . 29, 33, rt02
additioual oath to be tiled iu probate office, . CU2
to make return, annually, to secretary, of
money received by them, 12!t
penalty for neglect to make such return, .... VJ'.t
may be removed by supreme judicial court, . . 553
to receive and keep wills deposited in office, and
give certificate thereof, 477
may authorize suits on bonds in which judge is
principal or surety, 500
not to be of counsel in any matter pending in
either of his courts, 602
not to hold certjiin trusts, nor to he interested
in the fees thereof, 602
to have custody of records of probate courts,
courts of insolvency, and of prior pro-
ceedings in insolvency, 002
to perform such duties as are required by law
or prescribed by judges, 002
exempt from serving as jurors, 679
from military duty, 93
may, iu certain cases, take depositions to per-
petuate testimony, 676
not to receive fees except in cases expressly
provided for, 604
to be registers of probate courts, and courts of
insolvency, 574, 581
Assistant registers, to be appointed in coun-
ties of Essex, Middlesex, Norfolk,
J^uflolk, and Worcester, 603
to be sworn and give bond, 603
to perform duties under direction of regis-
ter, and in case of his disability, or of
a vacancy in office, to act as register, . 603
Temporary register, how appointed and
sworn, 603
to be paid by register, or if there is no reg-
ister, from the treasury of the com-
monwealth, 604
Salaries of registers and assistant registers iu
tlie several counties, 603
(Si'.' Insolvcnoj, Probate Courts.)
REGISTRARS.
may be chosen in cities and tottms of more than
ten thousaud inhabitants, 170
to be sworn, 170
duties of, in relation to registry, &c., of births,
marriages, and deaths, same as those
of town clerks, 170
to issue certificates of intention of marriage to
parties, 520
penalty on, for issuing certificate to minors in
certain cases, 539
may require affidavit of age of parties applying
for certificates, 529
REGISTRY AND RETURNS.
of births, niarri;t;^'-.^s, and deaths, lGS-170
(.Sec Births, Marritif/eSj Deaths.)
RELEASE. iSee Deed.)
<UM'.t of 466
RELIGIOUS ASSOCIATIONS.
seven or more persons to be bodies corporate
for religious purposes, &c., 207
purpose and location, to be specified in articles, 2(T7
to have usual corporate powers, 207
may hold real and personal property not ex-
ceeding one hundred thousand dollars, 207
estate of, not exempted from taxation, when
used for other purposes, 207
(5ee Parishes and Religious Societies.)
RELIGIOUS FREEDOM.
t-stablish.'d, 34
RELIGIOUS SOCIETIES.
{See Parishi's and lieltgious Societies.)
RELIGIOUS WORSHIP.
disturbing, liow punished, 819
REMAINDERS AND REVERSIOJfS.
expectant on ustates tail, when and how barred, 406
contingent, wlien estate may be sold, &c., sub-
JGcfto, 472,473
provisions relating to cutting trees on wood-
land, subject to, 473
owners of, liable to tenants for life for sums
paid for improvements, on recovery
of premises in real actions, 695
how amount of such liability may be ascer-
tained if parties do not agree, .... 696
rights and remedies of, in such case, after
termination of life estate, 696
may maintain action for waste, 709
not entitled to partition, except in certain
special cases, 699, 705
may have partition notmlh standing exist-
ence of lease, 705
how, when remainders are limited to per-
sons not in being, 705
when right of entry or action for estate in, ac-
crues, 775
limitations of such rights, 775, 776
estates in, barred, when tenant's right of entry
or action is barred, 77fl
REMOVAL OF ACTIONS.
from siiperitir to sui)rume court, by consent of
parties or upon affidavit, how, . . . 562
from justices of the peace, .tc, to superior
court, where title to real estate is in
question, .tc 606, 731
REMOVAIi PROM OFFICE.
of judicial officers, on address of legislature, . . 27
of militia officers, 32, 100
of executors, guardians, &c, for insanity, &c., . 503
REMOVAL OF PAUPERS.
to t.nvn of their settlement, 394
REMOVAL OF PRISONERS.
when may be made by sheriff, from one jail to
another, 857
when and how to lunatic hospital, 412, 878
in case of pestilence, SGi
RENT.
due from land demised for any estate of free-
hold, or for years, to be paid by person
iu possession in proportion to land
held 471
tenants at sufferance, liable for, 471
how recovered in such cases, &c., 471
action for, may be brought by or against execu-
tors, &c., for arrears accrued in life-
time of deceased, 471
provisions not to impair other legal remedies for
recovery of, by landlords, 472
of dwelling-house occupied by debtor and his
family to be considered claim for ne-
cessaries, 472
accruing after levy on the reversion, to be paid
by lessee to judgment creditor, . . . 518
how apportioned, when part of reversion is
levied on, 518
RENTS AND PROFITS.
when maybe sold on warrant oftlistress for
taxes, 84
how execution may be levied on, 518
how recovered in writs of entry, 693
1080
INDEX.
RENTS AND VROFITS — continued.
when and how long^ tenant is liable for rents and
profits, G93
how set otf ag^jiiuBt improvements by respondent
in petition and writs for partition, . . 703
received by mortgagee or person under him, to
be accounted for to owner of equity
upon redeeming, 713-715
how allowed in informations for intrusion in
favor of state, and ^rrits of entry
brou^'ht by persons not concluded by
judyi^ments tlnTeiu, 718,719
BEPAIBS OF WAYS AND BRIDGES.
provisions respecting, 245-248
{Sec Heal Actions.)
BEPEAIj.
of acts by the General Statutes, 8S1-90G
cITect of such repeal, 880, 881
list of arts previously repealed, 907, 008
REPLEVIN.
Of beasts distrained or impounded, . 730, 731
action may be broug^ht before justice of peace
or police coui"tin form heretofore es-
tablished, G05, 730
writ to be sued out, served, returned, and the
case tried as in other civil actions, , , 730
to require bond, with sureties, to prosecute
suit, &c., to be given in double value of
property, without expressing: amount, 730
not to be served uutil bond is given, .... 730
if parties cannot agree upon value of property,
three appraisers to be appointed and
sworn to appraise same, 730
officer to return bond with writ, and to include
in his retnrn on writ a certificate of
appointment of appraisers, the ap-
praisal, and expense, 730
if, upon default, trial, or otherwise, it appears
that the beasts were lawfully taken or
distrained, defendant to have judg-
ment for penalty, return, &c., .... 731
when beasts are returned, they sliall be held
as if tliey had not been replevied, . . 731
if it appears that beasts were taken, &e.,
without sufficient cause, plaiutitT to
have judgment for damages and
eosts, 731
when sum demanded for penalty or damages
exceeds one hundred dollars, or title
to real estate is concerned, case may
be removed to superior court, .... 731
Of other property, may be brought before
superior court, when goods of more
than twenty dollars' value are un-
lawfully taken or detained from the
owner, 731
or by o\vner of goods of that value, if at-
tached or taken in execution for an-
other's debt, &c., 731
when value of property docs not exceed one liun-
dred dollars, action may be brought
before police court or justice of the
peace, 731
form of writ of, and of writ of return, to be the
same as lieretofore established, 731, 732, 733
writ to be sued out, served, and returned as in
other actions, except where a diiTcrent
course is prescribed, 731
not to be served, unless idaintiff gives a
bond, with sureties to prosecute suit,
&c., in a penalty double the value of
property, 731
REPLEVIN — co»^(»wff?.
value of property to be ascertained, if parties do
not agree, by three appraisers, .... 731
bond to be returned with the writ, or filed in
clerk's office if writ is returnable to
superior court, 731
officer to state in his return on writ the appoint-
ment of appraisers, the appriusal, aud
expenses, 730, 731
If it appears that defendant is entitled to return,
judgment therefor with damages and
coat, 731
damages on judgment for return, when the
goods replevied had been attached or
taken on execution, to be not loss than
twelve per cent, a year on value of the
goods, 732
how damages recovered by officers, or by their
executors, &c., on account of goods
attached, &c., shall be applied, G48, 051, 732
damages or goods recovered against the execu-
tor, &c., of an attacliing officer, to be
paid or returned in full, though offi-
cer's estate bo iusolveut, 048
how goods, replevied from an attaching officer,
may be further attached, 024, 025
if the goods were unlawfully taken or detained,
plaintifT shall have judgment for dam-
ages caused thereby, 732
General provisions, 732, 733
liow long replevied goods, that had been at-
tached or taken on execution, shall be
held after judgment for return, . .024,732
when judgment is for return of such goods,
plfuntifl" and liis sureties liable for
whole, or their full value, although
attachment was made after replevin, . 024
damages shall be assessed by court or jury, as
in other civil actions, 732
writ of return to be in same form as heretofore
used, 732, 733
these proceedings not to preclude defendant
from his remedy on replevin bond, or
against the officer, 733
if officer to whom writ of return is committed
cannot find the property, he shall re-
turn the fact on the writ, aud defend-
ant may have a writ of reprisal, . . . 733
limitation against surety on replevin bond, . . . 733
action of, by or against attachiug officer, not to
abate by his death, 648
damages or goods recovered against executor
or administrator of an attaching offi-
cer to be paid or returned in full, al-
though estate is insolvent, 648
when judgment for return is rendered against
an executor or administrator, the
goods returned shall not be consid-
ered as assets for which he is account-
able, 651
when such judgment is rendered for an execu-
tor or administrator of a trustee, car-
rier, depositary, or other person hav-
ing only a special property in the
goods, such goods shall not be con-
sidered assets, &c., but how disposed
of, 651
costs in action of, 780, 781
Personal Replevin.
writ, when to issue as of right, 737
issuing and return thereof, 739
INDEX.
1081
REPLEVIN — con^inM^f?.
luay be sued out in behalf of plaintiff with-
out express autliority,
sucli person may be required to give security
for payment of damages and costs that
may be rendered against the plaintiff,
to whom to be directed, and by whom served, .
form of writ,
Bhall not deliver from restraint unless bond be
given,
bond, how to be returned,
officer serving: tlie writ to be responsible for
sufficiency of sureties on the bond, . .
if plaintiff is diseharg^ed, he may recover costs,
defendant to recover costs and damages if plain-
tiff does not sustain action,
when to have judgment for redelivery of
plaintiff's body,
if he has secreted plaintiff's body, capias to issue
to take,
may deny return charging him with secreting,
&c.,
if guilty of secreting, to be committed, . . .
term of commitment,
proceedings, whereplaintiff*s body is produced
by defendant after a return of secret-
ing, &e.,
appeal lies to supreme judicial court by either
party, as in civil actions,
whole ease carried up on appeal,
parties to, may be described where their names
art' uot kno^\'n,
REPLIC ATIOlSr, ( See Plendings.)
uot rc4uuetl after answer, except by order of
court on motion of defendant, ....
may be made to the answer by plaintiff, if he
pleases, at any time before trial, . . .
to state specifically any facts in reply to new
matter in answer,
may raise an issue of law by demurrer, . . GaC,
may allege facts occurring after suit brought, .
trial not to be delayed for want of, unless by or-
der of court,
supplemental may be made by leave of court, .
order allowing, may be made in or out of
court, and in any county,
f'»riji of,
REPORTER.
of decisions of iha supreme court to continue
in office,
to be appointed by governor and council, and re-
movable at their pleasure,
to attend personally all law terms, and terms
for capital trials, of supreme court,
and make report of decisions, ....
to publish reports annually; and all cases ar-
gued before first day of September to
he published in ninety days,
to publish opinions contained in records and re-
scripts, if no further opinions are writ-
ten out within sixty days,
to report cases more or less at large, according
to his discretion,
when cases are determined at any other time
than at a law term, court to communi-
cate opinion to reporter,
when absent, some person to be deputed by him,
or be appointed by court,
compensation of, •
REPORTS.
books of, of cases ad.ind^ed in other states, ad-
missible evidence of their laws, . . .
91 136
REPORTS —continued.
of auditor, to be prima facie evidence, 616
of masters in chancery and auditors, sums
accorded by, to bear interest, .... OSo
of questions of law !)y single Judge of supreme
court to full court, 55i
arising in equity cases, how made to full
court, 500
of evidence taken before single judge in equity
cases, how required, &c., 501
of questions of law, may, after verdict, be made
to supreme court, 5G6
in criminal cases, where important and doubt-
ful question^ of law arise, may be
made by judge, if defendant after con-
viction desires or requests it, 843
furtlier proceedings to be then stayed, . . . &43
defendant to recognize for his appearance at
the supreme judicial court, SH
proceedings, if he fails, to recognize, . . , 841
power and duty of the court to act on such
reports, S44
party may have his writ of error for defect of
record, S44
Of public officers, boards, and institutions,
except, &e., to include year ending
September thirtieth, and be submitted
to secretary on or before October fif-
teenth, annually, 52
and, with anuual abstracts i)repared by sec-
retary, to be laid before legislature on
first AVcdnesday of January, ..... 52
of cert;un public officers, may be put in type
previous to first Wednesday in Janu-
ary, 53
what to be styled " public series," 53
special, to be made when public interest re-
quires, 52
of board of education, number to be printed,
and distribution of, 53
of board of agriculture, number to bo print-
ed, and distribution of, 53
number of, may be increased by socretary,
if public interest requires, 53
of railroad corporations, to be filed in sep-
arate comi)lete sets, 53
to whom furnished, 53
public series, only, to be furnished libra-
ries, itc, 53
to be furnished to towns, 53
penalty fornegloct in making, &c., 53
REPRESEJNrTATIOISr.
concerning character, &c., to furnish no cause
of action, unless in writing, 527
of credit, with intention to defraud, mast be in
writing, 802
REPRESENTATIVES.
right of the people to instruct, IG
in general court, by whom and when chosen,
21,3-1-30,38,62
travelling expenses of, paid from state treasury, 21
qualifications of, 21,38,39
how far privileged from arrest, 22
exempted from serving as jurors, 679
oath of, 29, 33
certain officers not to be, 30, 33
number and apportionment of, 38, 39, &4
districts for choice of, how constituted, . . . 3R, 39
maimer of conducting elections of, W, 65
proceedings in case of failure to elect, 65
certificates of election, by whom made, . . . (i5, 66.
duplicates to be made, one transmitted to
1082
INDEX.
REPBESEWTATIVES — coniinued.
eecrftary, and one delivered by consta-
ble, &c., to person elected, 65,66
form of certilicixte, GO
as members of committecH, may administer
oaths to witnesses, 40
not eligible to office created during- their term
of service, except by vote of the peo-
ple, • 4V
House of.
may impose fines on towns that neglect to re-
turn members, 21
the grand inquest of the commonwealth, ... nil
to originate all money bills, 21
may adjourn, not exceeding two days, 21
one hundred members of, a quorum, 22, 30
judge of returns, elections, find quidifications of
its members, 22
to choose speaker and appoint its own officers, . 22
to establish rules of proceedings, 22
may puuish fur contempt, and tlireatening or
atisauUiug members, &c., 22
cases where ^rights and privileges of, are con-
cerned, how tried, 22
when may require opinions of justices of su-
preme judicial court, 27
organization oi", 47
secretary to make list of persons i*eturned to,
and deliver same to sergeant^at-armg, 47
to transmit certificates of election and list
of members to, 47
those persons only whose names are on list to
be admitted to seats, unless admitted
by house, 47
when and by Avhom to be called to order, ... 47
compensation and mileage of members of, when
and how paid, 48
deduction to be made for absences, 48
doorkeepers, messengers, and pages, how ap-
pointed, 133, 134
compensation of doorkeepers, &c., 48
books, &J.*., except, Ac, not to be ordered for
members of, at charge of state, ... 48
not to sit for transaction of ordinary business
on certain public holidays, 49
proceedings in ease of vacaucy in, 66
Speaker of, compensation, 48
to issue precept for new election in case of
vacancy, GG
to approve accounts of expenditures in-
curred by order of house, 110
Clerk of, to act as clerk of succeeding house
till successor is chosen, 47
may appoint deputy and assistant, 47
oath of, and of deputy and assistant, . ... 47
salary of, 4s
to make index and duplicate journal, . ... 48
to certify attendance on ^vritten statement
of members, 48
to have custody of journals, files, &c., of, , 49
copies cn-tified bv, to be evidence, 49
KEPRESEISTTATrVTES IN CONGRESS.
to be apportioned among the several states, . . 2
compensation, privileges, and disqualifications
of, -"jS
districts for choice of, 67, 68
when chosen, C8
return of votes for, 50, 60, 08
proceedings in case of failure to elect, 68
in case of vacancy, 2, 68
^{See. Constitution of the United States.)
RESCUE.
of person arrested by order of senate or house
of representatives, Iiow punishable, . 22
of persons from custody, bow punishable, . 813, 876
of cattle distr:uutd or inipounded, action, &c.,
for, 160
RESERVOIRS.
punishuiL-nt for wilful, &c., injury to, 804
wilful or malicious corrupting or iiyuring, ... 823
poisoning, how punished, 7ft4
RESOLVES, {;ice Bills and Jiesolves, Lmcs,)
17, IS, 32, 40
RESPONDENTIA.
recording not necessary to validity of contract
of, 767
how proved in insolvency proceedings, , . 584
RETAILERS.
not to give cretht to students, &c., under penal-
ties, &:c., 457
RETURNS.
of writs, 622
of executions, 687
when issued for possession of real estate,
to be first recorded, 690
of bail bonds, 643
of bonds taken when goods attached and deliv-
ered to defendant or part owner, . 620, 630
of bonds in action of replevin, 730,731
REVENUE.
provisions of Uuited States constitution con-
cerning, 3-.J
REVIEW.
writs of, may be sued out in cases wherein
trial by jury is waived, as in other
cases, 661
of final judgments, allowed as of riglit, only in
case of default of a defendant, who was
out of the state, 747
writ of, may be sued out, in such case, at any
time within a year after judgment, - . 747
may be granted, in such case, by supreme
court, on petition, if filed witliin a
year after defendant has notice of the
judgment, 565, 747
writs of, and petitions for, to be indorsed like
original writs, 748
may be griinted by supreme court, of all its
own judgments, and those of superior
court, on such terms as may be
deemed reasonable, 747
by superior court, of its own judgments,
and those of justices of the peace, . . 747
within what time i)etitiou for shall be filed in
difi'erent cases, 747
where petition for, may be filed, and notice
thereof made returnable, 747
if petition for, be not granted, costs may be
awarded to respondent, 747
of judgment of superior court, to be tried in
either court, when granted by su-
preme court, 747
in wliat county to be tried, 747
on petition for, or when sued as of right, court
may stay or supersede execution ; on
what terms, 747,748
execution not to be stayed, &c., without
order of court, 748
may be had by one or more of several defend-
ants, as if they were all, 748
provisions, in such case, if damages recovered
in the original suit be reduced or in-
creased 748
INDEX.
1083
REVTEW— continued.
writ of, how to be sued out, form of, and how
be served, 747
when sued out by original plaintiff, defend-
ant's property may be attached, . . . 748
of the pleadings, trial, evidence, judgment, and
costs, 747, 74S
when amount of former judgment is reduced,
original defendant to have execution for
the difference, with his costs, 748
or, in such case, if former judgment be not sat-
isfied, one judgment may be set off
against the other, and execution issue
for the balance, 748
when amount of former judgment is increased,
original plaintiff to have judgment
and execution for the excess, .... 74S
in actions of replevin, and wherever a set-off
is filed, original defendant to be re-
garded, as to foregoing provisions,
like a plaintiff in other actions, . . . . 748
attaclunents and boil in original suit not held
to satisfy judgments on review, . . . 748
of judgment on recognizance where penalty is
forfeited, 83G
for what cause, and mode of procedure, . , 835
petition for, and notice thereof, S30
if judgment is reversed, or for less sum,
difference to be paid to petitioner, , . 830
by whom to be paid, 836
if review not granted, nor judgment altered,
court may award costs to common-
wealth, 83G
REVISED STATUTES.
repeal of, 8S1
REWABDC
governor may offer and pay, not exeeechng one
tliou.and dollars, for the apprehen-
sion, &c., of certain convicts, &c.,
escaped from prison, or those charged
with high crime, 831
may draw warrant on treasury for such
payment, S31
mayor and aldermen, or selectmen, may offer,
&c., not exceeding five hundred dol-
lars, for arresting and securing, &c., 831
how such reward is to be paid, 831
proceedings where more than one claimant
appears, 831
decision of, &c., to be final, 831
EIGHTS.
declaration of, 14
natural and essential, of all men, 14
RIOTS.
and tumults, how to be suppressed, 815
neglect or refusing aid to suppress, how
punished, _ 815
penalty for neglect of duty, 815
may be suppressed by force, 110, 111, 815
proceedings in calling out an armed force,
815, 816
whose orders such force shall obey, .... 816
persons aitling to suppress, held guiltless, . , . 816
rioters respousible for injuries to those aiding
to suppress, 816
towns respousible for property destroyed or
iujured by persons riotously assem-
bled, S16
may recover the same from the offenders, . 816
ROADS.
l>',i;:ccc meeting on, with carriages, &c,, to turn
to the right, -123
ROADS — continued.
passing another carriage, travelling the
same way, to turn to the left, .... 423
driver of leading carriage on, not to wiiftiUy ob-
struct, 423
sleighs not to be used on, witiiout bells, .... 423
penalties for violations of these provisions, . , 423
complaint for such violations to be made ^ritliin
three months, 42:1
these provisions not to apply to horse rail-
roads, 423
To swamps, construction of, authorized, . . 752
petition for improvements to be filed with com-
missioners, 752
contents of, and bond for expenses, . . 752, 753
what notice to be given thereof, 753
duties and powers of commissioners, 753
appeal from the decisions of the commissioners, 753
wiiere the premises are in one town or city, pe-
tition may be made to selectmen, &c., 753
repairs of such improvements, how to be made, 753
selectmen to proceed as provided for commis-
sioners, 753
fees of selectmen, &c., 753
appeal fx'om selectfneu to county commission-
ers, 753
proceedings on sucli appeal, 753
punishment for opening, through burial gi-ounds
without conseut, 822
(See Highirays.)
ROBBERY.
robber being armed with dangerous weapon,
with intent, &c., how punished, . . . 71)'»
by force and violence, not being so armed, . . . 1\).\
ROCHESTER,
laud in, ceded to United States, 45
ROCKETS.
p<.'nalty for selling without license, 4C)(>
for firing without license, * . . . , 4(io
ROGUES.
how to be arrested, secured, andpimished, . 820, 821
RULE DAYS.
to be established by supreme court for transac-
tion of equity business, 560
probate appeals to be entered at, 577
RULES.
of court may be made by
Supreme court, for conducting business,
and regulating practice in equity, . . 501
for reporting oral testimony before single
judge in equity cases for xise of full
court on appeal, 5-)l
for settling the truth of exceptions alleged
and not allowed, 5;i7
regulating changes in the forms of writs in
all courts, 022
Supreme and superior courts respec-
tively, for regulating the practice,
and eou»hn;-tiug of the busiiiess of
such courts, 560
various purposes for which such rules may
be made, 500
respecting times and places of hearing mo-
tions at chamb'TS, notice, and other
matters respecting interlocutory or-
ders, &c., ftra)
as to issuing commissions in term time or
vac<ation, filing interrogatories, &c.,
for taking depositions outof the state, 67-j
respecting time and manner of opening, fil-
ing, and keeping, &c., of depositions, o:."
Police courts, for the orderly and uniform
1084
INDES.
HUIjES — contimted.
couductlng- of the business of the
courts, 571, 573
the justices of the police court of Boston may
also make rules for arranging', equal-
izing, &c., business in their court. . , 573
Probate courts, the several judges of, may
make rules, and shall return a state-
ment thereof to supreme court as
soon as made, 570
supreme court may alter and amend same, or
make further rules to secure uniform-
ity, &c., , 576
RUXES — continued.
Courts of insolvency, judges of, or a major-
ity, may make rulus, wliich shall be
submitted to supreme court for ap-
proval, amendment, &c., 582
supreme court may in all cases make general
rules for, to maiutaia regular and uni-
form proceethngs, 5S2
BUWA"WAYS.
how may be treated, 820, 821
KTE.
standard weight of bushel of, 2(55
S.
SABBATH, {see Lord's Day,) 434,435
SABBATH SCHOOL.
may bi^ maintained in state prison, 875
SALARIES.
of public officers, when and how payable from
the treasury, 140
(See titles of the srreral ojjicei's.)
SALE OF LAISTDS BY EXECUTORS,
ADMINISTRATORS, AND GUAR-
DIANS.
I. BV EXECUTOUS AND ADMISISTnATORS.
For payment of debts, may be made, if
personal estate insufficient, .... 4S0, 510
license for, may be granted by supreme judi-
cial court, superior court, or probate
court, 510
petition for, by executor, &c., and what to
contain, 510
notice of petition for, to be given to all
parties interested, 510
notice may be dispensed with, if all par-
ties interested assent to, 510
not to be granted if persons interested
give bond to pay the debts, 510
to be in force one year only, except, &c., . 515
of whole, or specific part, may be licensed,
if sale of part only would injure res-
idue, 510
not to be made till executor, &c., give boml
to account for iiroceeds after paying
debts, 510
petition for license, when presented to su-
preme judicial court, or superior court,
to be accompanied by certificate from
probate court, Ac, 510'
when provision is made in will for pay-
ment of debts, such provision to be
set forth in petition, and assets mar-
shalled accordingly, 610
•when license for is given, executor, &c., au-
thorized to convey by deed, 511
liability to, extends to all estate of de-
ceased, rights of entry, &c., 511
and to lands fraudulently conveyed by
deceased, iSre., 511
such lands first to be recovered by execu-
tor, &c., by action, 511
oath to be taken by executor, »&c., before
fixing time, &c., of, 511
notice of, how to be given, 511
SALE OF LANDS, &c.~ continued.
affidavit of, filed and recorded, to be evi-
dence thereof, 511
to be by public auction, and may be ad-
journed, 511
notice of adjournment of, how given, ... 511
For payment of legacies, may be made
wlien personal estate insufficient, . 511, 5!2
By foreign executor and administrator,
may be made in this state, on filing
copy of appointment, &c., 512
such executor, &c., if not bound in place
where appointed, to give bond to ac-
count for proceeds, &e., 512
to give further bond to account for surjJlus,
after paying debts, &c., if more than
sufficient is sold, 512
to be sworn, and to give notice, &c., as
other executors, &c., 512
all proceedings by, to be had in court for
county where copy of appointment is
first filed, 514
II. By Guardians.
For payment of debts, may be made, when
personal estate of wards insufficient, 512
license for, may be granted, as to executors,
&c., 512
of whole, or specific part, may be made when
partial sale would injure the residue, . 512
For maintenance and investment, may
be made, when income of ward's es-
tate is insufficient to maintain him
and his ftimily, 513
or when it would be for benefit of ward to
invest proceeds in productive stock, . 513
license for may be grauted on petition, and
to specify purpose of sale, 513
not to be made till guardian gives bond to
sell according to law, aud to account,
&c., for proceeds, 513
proceeds of, liow to be applied, if sale is
for maintenance, 513
how to be applied if sale is for investment, 513
may be made iu certain cases, on petition
of friend of minor 513
by guardian, or other person authorized
by court, 513
proceeds of, in sut'h eases, how disposed of, 513
By foreign guardian, may be made, on fil-
ing a copy of appointment, &c., . 513, 514
INDEX.
1085
SALE OF LAWDS, SiC — continiK^t?.
such gnardiuu, if uot bound in place where
appointed, to give bond before sale
to account for proceeds, &c., 51-1
to give further bond to account for surplus,
after paying debts, &c., if more than
sufficient is sold, 5H
to give additional bond, if sale is made for
maintenance or investment, 514
all proceedings by, to be had where copy of
appointment is first filed, 514
licenses for, may be granted by supreme ju-
dicial court, superior court, and pro-
bate courts, 514
not to be granted, except to guardians of
minors, without assent of overseers
of poor, 514
to continue in force for one year only, . . 515
not to be granted until notice to parties
interested, 514
who entitled to such notice, 514
oath to be taken by guardian before fixing
time of sale, &c., 514
m. Provisions common to Sales by Ex-
ECfTORS, &C., AND GlAROIANS.
proceedings by foreign executor, itc, to be had
in court for county where copy of ap-
pointment is first filed, 514
licensee for, by whom and how gi-antcd, . . 514, 710
not to be in force more than one year, ex-
cept, &c., 515
surplus of proceeds of, after settlement of ac-
counts, to be considered real est^ito, . 515
wlien objection is made to Ucense for, how costs
to be awarded, 515
limitation of actions for recovery of lauds sold
by executor, &c., 515
9 requisites of, as against heirs of deceased, and
ward, and those claiming under him, 515
as against persons claiming adversely to
heir or ward, 515
persons making, may be examined on oath as
to sales, 515
damages caused by neglect or misconduct of
those making, how recovered, . . 515, 51G
SAIiEM.
harbor of, penalty for boarding vessels in, with-
out leave, except by pilot, &:c., .... 290
what to be deemed Umits of, for certain pur-
poses, 290
SALMON.
provisions concerning, 2G1, 202
SALT.
standard weight of bushel of, to be seventy
pounds, 278
me^m weight, how to be ascertained, 278
penalty for selling without ascertaining weight, 278
when these provisions not to apply, 278
spurial provisions concerning measures for, . , 28C
SANCOTY HEAD.
land at, c^ded to United States, 45
SAND.
penalty for digging, &c., without license, , , . 805
SANDWICH.
land in, cedi-'d to United States, 45
provisiuns fur regulation of fisheries in, ... . 432
SANDT ]>rECK,
land on. cf-ded to United States, 44
SANDY POINT.
in Nantucket, Ughthouse on, ceded to United
States, 44
91*
SAVINGS BANKS. (See Banls.)
when charged as trustees, and there is doubt as
to identity of defenduut, may have bond of
plaiutiff, 724
general provisions respecting, 3U»-318
SCHOLARSHIPS.
state, forty-eight established, 213
arrangement of sections and classes for, . . . . 214
candidates for, how recommended, and how and
when selected, 214
qualifications of, 214
deficiency in number of, how supplied,. . . 214
college, how selected, 214
vacancies in, how filled, 214
scholar, after leaving college, may attend nor-
mal school, 214
allowances to, at college and normal school, 214
to teach in public schools the same term of
time he has received ;ud,or rciund, 214,215
appropriations for, 215
SCHOOLS.
money raised for, by taxation, or appropriated
by state, not to be applied to secta-
rian schools, 38
money for support of, may be granted by towns, 158
to be kept six mouths in each yujir in every
town, 215
all children within comntonwealth may attend,
in place of their residence, 228
branches to be taught in, 215
day or evening, may bo established for persons
over fifteen years of age, 21G
school committee to have superintendence of
sucli schools, Ac, 216
female assistants to be employed in, when
averaging fifty scholars, unless, &c., . 210
att^jndance at, to be encouraged by ministers of
the gospel, town officers, Ac, .... 217
to^^■ns to raise money for, to be assessed, &c.,
like other town taxes, 158, 217
funds of corporations for support of, to remain
as licretofore, 217
forfeiture by town for neglect to raise money or
choose school committee, 217
three fourths of, to be appropriated for
schools in town, 217
examination of, and visits to, by committee, . . 218
Bible to be read in, daily, 218
sectarian books to be excluded from, 218
provisions respecting, in towns, to apply to
cities, unless, &c., 220
wilful disturbance of, how punished, 820
High, to be kept in to^vn8 of five hundred fam-
ilies, 215
may be established in every town, 215
school committees to have like powers, &c.,
concerning, as prudential committees
in districts, , . 219
admission to, how regidated, 228
branches to bo taught in, 215, 210
number and qualifications of scholars to be
admitted to, determined by committee, 228
to be kept ten months in each year, .... 21fi
location of, to be determined at annual town
meeting, 210
qualificatitms of teachers of, in towns of
four thousand inhabitants, 210
may be established by two adjacent to%vns
having less than five hundred fami-
lies each, 210
committee, location, nnd apportionment of
expenses of, in such case, 210
1086
INDEX.
SCBOOljS — contimfoL
Teachers, by whom to be employed, 21S
to be of gooil morul character, and to have
literary, &c., qualifications, 218
to be personally examined by committee, . 218
to have certificates of qualifications from
committee, 318
to file one of such certificates with select-
men before payment, 218
when and how paid, 21S
not entitled to payment until school reg-is-
ter is completed and returned, .... 228
may be dismissed by school committee, . . 218
not to receive compensation after dismissal, 218
to impress on youth principles of piety,
temperance, &c., 210
Books, used iu, to be determined by com-
mittee, 218
changes iu, "how to be made, 218,219
if changes are made, to be supplied by
town, 218,2111
to be supplied to pupils, by committee, at
cost, 219
if not furnished to scholar by parent, to be
supplied by town, 219
expense of, so supplied, to bo taxed to par-
ents, &c., 210
if parents unable to pay for, tax to be
omitted, 219
exempted from attaohmeut and execution, G24,6SS
Superintendent of, appointment, duties, &c.,
of, 219
in town where appointed, committee to re-
ceive no pay, 219
Children, between eight and fourteen years
of age, to be sent to, twelve weeks
each year, 228
penalty on parents, &c., for neglect to send, 228
when such penalty not to be incurred, . . . 228
duties of truant officers, &c., in relation to
non-attendance of, 228
may attend, in place of their legal residence, 228
living remote from school in their own
town, may attend in adjoining town, 22-S, 229
instruction iu such case to be paid for by
town whore child resides, 229
under guardianship, whose father is dead,
may attend where guardian resides, . 220
may attend in other to^vns than those where
parents, &c., reside, with consent of
committee, 229
parent or guardian of, liable to pay for tui-
tion in such case, 220
not to bo permitted to attend until vacci-
nated, 229
not to be excluded on account of color, or
religious opinions, 229
llTOunds of exclusion of, to be stated in
writing by teacher, &c., on applica-
tion, 229
damages, how obtained, if unlawfully ex-
cluded, 229
in action for damages in such case, plaintiff
may examine school committee, &c., 229
habitually truant, towns, &c., may make by-
laws concerning, and annex Buit:ible
penalties, 230
may bo committed to institution for in-*
struction, house of reformation, &c., 2-30
truant officers, how appointed and duties of, 230
employer) in manufacturing establishments,
attendance by, 229, 230
SCHOOL COMMITTEE.
to be chosen annually, by ballot, 217
to consist of a number divisible by three. , . . 217
one third to be elected annually, 217.
to hold office for three years, 217
to continue in office, for certain purposes, after
election of successor, 217, 218
number of, to be fixed by town, 217
how inereased or diminished, 213
vacancies in, how filled, 217
when whole committee decline, new committee,
how elected, 217
term of service of member filling vacancy, . . . 217
forfeiture by town for not choosing, 217
to appoint secretary and keep records, 218
to have charge of high schools, with powers,
&c., of prudential committees in dis-
tricts, 219
to determine number and qualification of schol-
ars to be admitted to high school, . . 228
in high school districts established by adjacent
towns, how constituted, 216
to have superintendence, &c., of schools for
persons over fifteen years of age, . . . 21G
to endeavor that youth regularly attend school, 217
to contract with teachers, unless town, at an-
nual meeting, determines that pru-
dential committee may, 218
to examine teachers personally, 218
may dismiss teachers whenever they think
proper, 218
to visit and examine schools, 218
to require Bible to be read in schools, 218
to exclude sectarian books, 218
to direct what books shall be used in schools, . 218
how may make changes in books, 218, 219
to provide books at expense of town, and sup-
ply pupils at cost, 219
may procure apparatus, books of reference,
&c., for use of schools, 219
to supply certain scholars with books at ex-
pense of towns, 219
to give notice to assessors in such case, with
names of parents, &c., 219
to have charge of school-houses, &c., in towms
not districted, 210, 220
to perform duties of prudential committee in
districts where none is chosen, . . . 222
may establish school and employ teacher in
district which refuses or neglects so
to do, • . . . , 222
may provide school-houses in districts neglect-
ing to organize, &c., 224
powers and duties of, in union distncts, .... 225
powers and duties of, in union district, in
adjoining towns, 226
may recommend candidates for state schol-
arships, 214
to appomt superintendent of schools, if re-
quired by vote of town, &c., 219
compensation of, *219
not to receive compensation, when superin-
tendent is appointed, 219
to notify secretary of board of education, if
, blanks for school returns are not re-
ceived, 226
to make returns annually, under oath, to secre-
tary of board of education, 226
form of certificate to returns, 226
such returns to state the number of children
between five and fifteen years of age,
and sums appropriated for schools, , 226
INDEX.
1087
SCHOOL COMMITTEE — roH<i*n7/erf.
and to specify approjiriatlon of the town's
share of iufoinc of :i eeliool fund, . . 227
to make a detailed report, annually, of the con-
dition of schools, with sug-gestions,
&c. 227
to cause such report to be printed for use of
inhabitants of town, 227
to transmit two copies to secretary of board
of education, 227
and deposit a copy witli town clerk, .... 227
chairman and secretary of, in certain cases, may
sign certificate of returns, Ac, .... 227
to inquire into cases of ue^'lect of parents, &c.,
to send children to school, 223
not to allow children to attend school until
vaccinated, 229
to prosecute o\vners, &c., of manufacturing- cs-
tablislimeuts for employing children
who do not attend Bchool according'
to law, 230
SCHOOL DISTRICTS.
towns may be divided into, 221
not to be changed oftener than once in ten years, 221
to be corporations, for certain purposes, .... 221
property of, exempt from taxation, 74
may be abolished by towns, 221
when abolished, houses, lauds, &c., how dis-
posed of, 221
towns to vote on abolition of, in 1863, and
every third year thereafter, 221
secretary to notify selectmen when towns must
vote on abolition of, 221
when abolished, corporate powers to continue,
for certain purposes, 221
school committee may establish schools in, if
districts neglect or refuse, 222
meetings in, how called and warned, 222
may prescribe mode of calling- and warning
meetings, 222
may fix site of school-houses, 223
such site to be determined by selectmen, if
district cannot determine, 223
penalty on, for not provi(hng school-house, , -. 223
neglecting to organize, school committee may
provide school-houses, &c., 224
may raise money for school-houses and land,
and for necessary articles for use of
schools, 222, 223
liable for illegality in proceedings in relation to
raising money by tax, 222
taxes in, how, and on whom, &c., to be assessed,
and how collected, 223, 224
money raised in, how to be applied, 224
if district refuse to raise, town may order it, 224
and may empower selectmen, &c., to apply
the same, 224
duties, compensation, A'C, of assessors,
treasurers, and collectors, in matters
relating to, 224
actions by and against, where to be brought, . G21
civil process against, how served, . . . „ . G22, 023
Prudential committee of, how to be cho-
sen, 221, 222
general duties of, 222
may contract with teachers, when town so
determines, 218, 222
may consist of three, when authorized to
contract with teachers, 222
if not chosen, duties of, to be performed by
school committee, 222
in union districts, 225
SCHOOL DISTRICTS— crtn/7'nuerf.
in districts formed by contiguous districts
iu uiljuinlug towns, 223
Clerks of, to be chosen and sworn, 222
duties of, 222
to hold office till successors are qualified, , 222
liable only for want of integrity, 222
L'xiox Districts.
Union districts may be formed by contiguous
districts, by two thirds vote, for bene-
fit of older children, 224
meetings of, how called, &c., 224, 225
location of scliool-house iu, 225
clerk to be chosen by ballot and sworn, .... 225
to hold office until successor is qualified, . . 225
assessments in, how made, <i25
prudential committees of, how constituted, . . 225
powers and duties of, 225
schools required by law to be maintained in
districts composing, 225
powers and duties of school committee in, . 225
Contiguous Districts ix adjoixinc. Towns.
Contiguous districts in adjoining towns may-
unite, 225
terms of union, 225
meetings, how called, &c., 225
prudential committee to be chosen, &c., .... 225
powers of, 225
to determine proportion of money to be paid
by inhabitants of each to^vn, . . , 225, 226
clerk to certify votes to raise money to as-
sessors of each town, 220
taxes to be assessed as in other school districts, 226
school committees of each town to officiate in
turn, 22G
SCHOOL FaWDS.
how to be invested, 212
income of, only, to be used, 212
how to be appropriated, 212
how and by whom apportioned, antl dis-
tributed among towns for public
schools, 212
not to be allowed to towns that neglect to
make returns or raise certain sums for
schools, 212, 213
how to be applied by toivns wlien received, 213
appropriations from, for schools among In-
dians, 213
account of such appropriations to be ren-
deredannuallytogovernorandcouncil, 213
a]ipropriations from, for state scholarships, 215
Indian, income of, how to be applied, .... 213
Todd normal school fund, income how to
be applied, 213
SCHOOL-HOUSES.
in towns not districted, to be maintained by
towns, 219
to be kept in good order by school committee,
unless to^\Ti8 otherwise direct, .... 219
use of, to be under charge of school committee
in such towns, 220
location of, to be determined by to^^■ns, .... 219
land, not exceeding eighty square rods, may be
taken by selectmen for, 220
proceedings in sucli case, 220
owner of land taken for, may have complaint
tried by jury, 220
proceedings as iu cases of damage by lajnug
out highways, 220
damages and costs, in such cases, 220
1088
INDEX.
SCHOOL-HOUSES — <:on(i««e(7.
land to revert to owner upon dlBContinuance of
school for one year, 220
location of, for Iiigh schools, to be determined
by towns at annual meeting-, 21G
in union hi^h school district, to be deternuned
by committee, 21G
districts may raise money for, fix site, &c., 222, 223
selectmen to determine site in certain cases, . . 223
may be provided by towns at common expense, 223
may be provided by school committee in dis-
tricts neglecting to organize, ...... 224
penalty on district for not providing, 223
and furniture, wilful, &e., injury to, how pun-
ished, 803
SCHOOL REGISTEKS.
to be sent by secretary of board of education to
towu clerks, 211
to be delivered by towu clerk to school commit-
tee, 226
to be kept in all public schools, 227, 228
to be returned by teachers to school committee, 228
if not properly kept, completed, and returned,
teacher not entitled to payment, . . . 228
SCHOOL RETXTRNS.
blanks for, to be sent by secretary of board of
education to to^vu clerks, 211,226
number of chihh'en between five and fifteen
years of age to be ascertained and re-
turned to school committee by asBess-
ors, 226
number so returned, vrith sums appropriated for
schools, to be certified under oath by
school committee, 226
form of certiticiite, 22G
to be tr:msmitted to secretary of board of edu-
cation, 226,227
may be signed by chairman and secretary of
committee iu certain cases, 227
to contain statement of appropriation of town's
sliare of income of school fund, . . . 227
if not trausmittetl witliiu time prescribed, secre-
tary of board of education to notify
committee or town clerk, 227
town clerk or committee in such case to trans-
mit forthwith, 227
if informal, &c., to be returned by secretary to
committee for further action, .... 227
may be received by secretary during month of
Blay, when returned for informality,
&c., 227
when so received, town to forfeit ten per cent.
of share of school fund, 227
when not received before June, town to forfeit
whole share of such fund, &c., , . , .227
if mailed in season, towu exempted from forfeit-
ure 227
SCIRE FACIAS.
writ of, may be issued on judgment for penalty
of bond of executor, for new breach
of condition, &c., and new execution
be awarded, 507
may be issued on suggestion of waste against
execvitors and administrators, upon
return of execution against them un-
satisfied, G51
when justices of the peace may issue scire
facias in such cases, COS
may be brought against debtor escaped from
arrest on execution, 641
may be brought by or against administrator de
bonis uon,ou judgment recovered by
SCIRE FACIAS — continued.
or against former executor or admin-
istrator, and proceedings therein, . .
to be indorsed before entry iu certain cases, . .
may be brought on judgments recovered for
penalty of a bond, covenant, or agree-
ment, when there are subsequent
breaelies,
on recognizances given by respondents in ac-
tions of forcible entry and detainer,
in certain cases,
upon judgments iu trustee process, .... 72:1
upon a recognizance for debt after three years.
Against bail, how to issue, and what to be
set out therein,
may be issued by justices of the peace
against bail in actions before them,
although amount of debt and costs
on judgment exceed their general
jurisdiction, 605,
how writ served iu such cases,
to be served within one year after time of
rendering judgment,
defendants in, may plead jointly or sever-
ally,
costs ou, to be paid by debtor before he can
take poor debtor's oath,
costs on, to be paid upon surrender of prin-
cipal by bail, 643,
in criminal cases,
May be brought to obtain an execution,
after time for taking out execution
has expired,
when property sold on preceding execution
was not liable thcrelbr, &c., and dam-
ages have been recovered of officer or
creditor,
when, after execution and levy are returned
and recorded, it is ascertained that
the property levied on cannot be held
thereby,
when an execution against a corporation
has been satisfied in part by service
on a member, and the property or
damages are recovered back of cred-
itor or officer,
SCITUATE.
land iu, for lighthouse, ceded to United States, .
SEAL.
to include impression on paper as well as on
wax, »S:c.,
of the commonwealth to be in custody of secre-
tary,
of court, may be established by supreme and
superior courts respectively,
all warrants, assignments, processes, &c., of
courts of insolvency, to be under, . .
of police courts,
SEALERS.
of weights and measures, 161;
{See Weights and Measures.)
SEAMEN.
what, exempted from enrolment in militia, . . .
secretary to give certificates for release of im-
pressed,
how far ship owner liable for embezzlement,
&c., by,
who have shipped, exempted from arrest on
mesne process for debt due landlord,
&c
landlord, &c., not to have lien on wearing ap-
parel, ifcc, of,
652
622
GSG
7fJS
■730
771
643
644
G05
G43
643
037
(H4
S35
686
GSG
44
51
128
5GS
582
571
128
289
290
290
INDEX.
1089
SEAMETS" — continued.
pL'Q:ilty on landlord, &c., for hindering-, &c., in
perfornumce of shippings contract, .■. 290
penjilties, Iiow recovered in such cases, .... 200
at sea, may make nuncupative wills, 4??
SEAHCH "WAKRAJSTT.
to bo supported by oath and accompanied with
a special designation of the object of
search, 9, 15
not to be issued except as prescribed by hiw, . 9, 16
may be issued on complaint of fireward, &c., to
Bearch for grunpowder, gun cotton, &c.,
unlawfully deposited, 461
whca to bo issued for liquors unlawfully kept
for sale, &c., 444, 445
may be issued, to search for property stolen,
embezzled, &c., 830
to search for counterfeit coin, forged bank
notes, &c., or tools, &e., 830
for obscene books, &c., intended to be sold
or circulated, 830
for lottery tickets or materials for a lottery ;
and for g-aming implements kept in
gammg-houses, 4-36, 437, 830
shall designate the place and property, and di-
rect the sheriff, &c., to search, in the
daytime, 830
shall direct officer to bring such property, if
found, and the persons in whose pos-
session found, before a magistrate, . . 830
when, may be issued by two magistrates, or po-
lice court, authorizing search in the
night time, 830
property seized on to be kept as long as is neces-
sary, to be used as evidence on trial, 830
if stolen, embezzled, &c., to be returned to
the owner, 830
other property destroyed by direction of
<^o«i"t> 830, &3I
SEA"WEED.
rogulifiinis concerning gathering, &c., of, . . . 4;i3
SECOXyTD HAND ARTICLES.
dealers in, may be licensed by mayor and alder-
men, or selectmen, 457,458
license to specify place of business, restrictions,
&c., and continue in force one year, 45S
penalty for dealing in, without license, or con-
tr;iry to provisions of license .... 458
SECHETART OP BOARD OP EDUCA-
TION". {Sec noard of Education.)
appointment and duties of, o\q oyi
SECRETARY OP THE COMMON-
"WEALTH.
when and how chosen, 37 62
returuof votes for, 59 00
to have custody of state seal, 128
records of commonwealth to be kept in office of, 27
copies of records, &c., certified by, to be evi-
dence, 128
may appoint deputies, 27
when deputy may act as, 128
to attend the governor and legislatui*e when re-
quired, 27
oath of, 33
not to hold certain other offices, 30, 33
vac^iney in office of, how tilled, 32, 37
qualifications of, 37
salary of, jog
neglecting to qualify for ten days, office to be
deemed vacant, 37
to receive and examine certificates of elections
of representatives to general court, . 47
137-
SECRETARY OP THE C0^M.01S-
"WEALTH — rn,;f /,!(/«/.
to deliver list of persons returned to sergeant-at-
arms,and transmit certificates and list
to house of representatives, 47
to approve newspaper in which notice of peti-
tion to general court is given, .... 47
to cause bills and resolves to be engrossed on
parchment, and bound in separate vol-
umes, 4t)
to publish, at close of each session, acts and re-
solves of legislature, &c., 49, 50
how to distribute the same, 50
to publish general laws and resolves in pamph-
let form, and send to town clerks,
for distribution, 50
to publish general laws and other official infor-
mation in newspaper, 00
to lay annual reports of certain public officers,
in printed form, before legislature, . . 52
with consent of governor and council, may omit
portions thereof, 52
may increase number of any document, if pub-
lie int^irest requires, 53
and shall include in statement of expenses of
his office a list thereof, 53
to furnish railroad reports to members of legis-
lature and railroad corporations, 53,309,370
public series to towns, 53
to provide self-sealing envelopes for use of vot-
ers, and furnish to clerks of cities and
towns, 58
to furnish to to\vn and city clerks blank forms
and envelopes for return of votes, . . 00
to notify returning officers, when returns are
received unsealed, 00
to note date of reception, &c., of returns on
envelopes, GO
to transmit returns sealed to governor and coun-
cil, GO
to lay such returns, mth certificate of goveraor,
&c., before legislature, 60
to furnish blank forms for certificates, returns,
&c., of representatives, 06
to make quarterly return of fees, under oath,
and pay same into treasury, 128
may employ two permanent clerks, 128
may employ additional clerks and messengers, 128
salaries of such clerks and messengers, . 128
to give certificate, without charge, for release of
impressed seamen, 128
to issue passports to citizens of any color, . . . 128
to furnish blanks for returns of certain officer? ac-
countable for fees, costs, &c., 128, 129, 153,611
to transmit such returns, when received, to au-
ditor, 129
to prepare, annually, abstracts of criminal cases,
and append the same to report of at-
torney-general, 129
to forward instructions and forms to commis-
sioners to take depositions in other
states, 132
to be commissioner on repairs, &c., of state
house, 134
appointment of watchmen of state house subject
to approval of, 1.33, 134
to transmit to auditor statement of amount of
warrants drawn by governor, .... 136
duties of, when vacancy occurs in office of treas-
urer, 13S
to make annual report to legislature of ex-
penses of office, 141
1090
INDEX.
170
212
SECRETABY OF THE COMMON"-
W'EAlj'VlI — contiimcd. ;
to trantmiit maimscript county maps to county
commissioners for corrections, &e., . 144
to lay bcl'ore legislatui'e estimates of county
taxes, &c., HG
penalty for neglect, 140
to prepare annual abstract of returns of regis-
ters of deeds, and lay before Icyfisla-
ture, 155
to transmit to clerks of cities and towns blanks
for census returns, ICS
and to annex to such blanks instructions as to
time of making return, 168
to furuish to town clerks blank books and
forms of returns for recording, &c.,
births, marriag:cs, and deatlis, .... 170
to cause such returns to be bound and indexed, 170
to prepare tabular abstract of returns, and re-
port annually to leg-islaturc, 170
to prosecute for penalties for violation of law
concerning reg-istratiou,
with treasurer, to apportion income of school
fund among: towns,
to notify selectmen when towns must vote on
abolition of school districts, 221
to publish returns of insiiector-general of fish, . 204
may grant licenses to hawkers and pedlers on
certificate of selectmen, &c., . . . 'J^i'2, 283
to keep record of such licenses, (fee., SS-i
duty of, as to returns by banks, 311,312
by savings banks, 318
by railroad corporations, 3G9
to publish weekly and monthly abstracts of re-
turns of banks in newspaper, .... 311
to have regard to prices offered in selecting
newspapers for publication, 311
to furnish blank forms to banks, . . . 311,312,318
to cause abstracts of annual returns to be pre-
pared and printed, 312, 31S
and to send one copy to each cashier, &c., ... 312
to prepare a separate abstract of the returns of
banks organized under general laws, . 315
to give notice to attorney -general of violation
of law by insurance companies, &c., . 321
to submit to legislature annually an abstract
from certificates of certain corpora-
tions organized under general laws,
3-12, 343
to prepare annual abstract of pauper returns by
overseers of the poor, 395
to notify district-attorney of neglect of over-
seers, &c., to make return, 395
to print annual report of liquor commissioner,
and lay before legislature, 439
to furnish innholders, &c., with summary of
laws relating to them, 457
exempt from serving as juror, G79
fees of, for copies of resolves to private persons, 787
SEDGE.
punishment for wilfully cutting, &c., without
license, 805
SEISIT^. (-^ee T>isseisin.)
to be deemed in commonwealth upon judgment
in its favor on information of intru-
sion, "1^
how declared on in writ of entry, &c., 002
in such action, actual entry need not be proved, 092
what sliall be deemed sufficient proof of, . . . . 092
how delivered on levy of execution, 518
In mortgage, to be so declared in real actions
founded on mortgage titles, 054
SiaiZI?:a AND LIBELLING FOR-
FEITED GOODS.
by whom to be scizt'd and kept, 772
libel to be filed within fourteen days, 772
in clerk's office of superior court, or before
justice of peace or police court, ac-
cording to value of goods seized, . , . "72
form and substance of libel, 772
duties of clerk, upon the filing of the lil)il, . . . 772
to make advertisement and notice, . . . 772, 773
libellant to pubhsh the same, 773
libel to be entered, 773
proceedings when claim.mt appears, 773
where no claimant apjicars, 773
all questions of fact to be tried by a jury, . . 773
Decree of forfeiture or restitution, 773
disijosition of proceeds of sale under decree, 773
claimant to have damages, with costs, if
seizure was without probable cause, , 773
Costs in other cases to go to prevailing pai'ty, . 773
or may, in whole or in part, be paid out of
proceeds of goods seized, 773
Executions, and other prOcess, may issue, . . 773
Appeal, by either party, to supreme judicial
court, 773
proceedings on appeal as in other civil cases, 773
Pkoceedixgs on a Libel before a Justice -of
THE Peace ok Police Court,
justice or court to make out advertisement or
notice, 773
notice where, and how long, to be posted, . . . 773
mode of trial, 773
jury may be called in only as in otiier civil
cases, 773
Appeal allowed by eitlier pai-ty to superior
court, 773
Gexeral Provisions.
depositions may be used as in trials at common
law, *. 773
goods seized may be delivered to claimant on his
giving bond, 773
form and condition of the bond, .... 773, 774
value of goods to be determined by appraise-
ment, 774
how appraisement shall be made, 774
appraisers to be sworn, and to make return
of inventory and appraisement, . . . 774
appraisement to be conclusive as to jurisdiction
of the court, 774
perishable goods may be sold, 774
proceedings in such case, 774
court may, at any time while the suit is pend-
ing, order the goods sold, 774
Provisions conceuning Specific Articles.
butter and lard, shipped contrary to law, .... 200
chocolate, 200
pickled or smoked fish, 204
pressed hay, 200
hops, exported or shipped for exportation, . . . 208
lime and casks of lime, 271
nails or brads, wrought or cut, 275
paper, not packed or stamped, 270
cliarcoal and charcoal measures, 2S0
goods and chattels unlawfully exposed for sale
at auction, 281
SELECTMEN".
to be cliosen at annual to^vn meeting, 100
of what number to consist, 100
to be chosen by ballot, Ifd
INDEX.
1091
SELECTMEN" — coK^'n^/?.
tube sworu, 101
penalty on, lor euteriiig on duties before taking
oatb, 1C2
to be oversecFB of poor where otiier persons are
not specially chosen, 102
to be assessors of taxes where others are not
specially chosen, 102
when acting as assessors, to take asseBSOrs'
oath, 162
to make lists of voters, and post them ten days
before elections, ,5G
when to be in session to receive evidence of
qualifications of voters, 50
to give notice of meeting on posted lists, . . 50,57
to correct lists, 57
to require proof of naturalization before enter-
ing name of naturalized citizen on list, 57
when not answerable for omissions of names
of voters from list, 67
penalty forgiving false answer to, 57
on, for neglect of duty, 57
to call meetings for elections, &c., .... 58,03,09
to decide, in cert:uu elections, whether officers
shall be voted for on one or more bal-
lots, 5S
to preside at national, state, &c., elections, and
have powers, &c., of moderators, 19, 22, 5S
to provide, at polls, envelopes for use of voters, 58
not answerable for refusing vote of person not
on voting list, unless suflici;'nt evi-
dence of liis right to vote is furnished,
Ac, 53
to receive, sort, and count votes at national,
state, county, and district elections, 59, 69
duties of, at elections, in towns composing part
of a representative district, 05
under precept to fill vacancy in house of
representatives, CO
penalties for giving false certificate of election,
and neglect of duty, GO
compensation of, for services at election of rep-
resentatives, GO
penalty for neglect of duty at election of rep-
resentatives in congress, G9
of district-attorney, Ac, 72
in what cases may remove collector of taxes and
appoint temporary collector, 87
to notify and draft enrolled militia upon order
of commander-in-chief, 92
duty of, in organization of companies of mi-
litia, 94
to provide armories for military companies and
transmit certificates of rent, &c., to
adjutant-general, 104
to provide carriages and cmip equipage for mili-
tia drafted in case of invasion, &c., . , 110
duties of, respecting compensation of militia, . Ill
respecting perambulation of to^vn lines, 157, 153
penalties on, for neglect, 157, 158
in absence of town clerk, to preside at election
of moderator of town meeting, . . . . 160
in certain cases, to receive votes for town clerk
pro tempore, 102
to appoint certain town officers, . . IGl, 265, 2G6, 270
may appoint town clerk in certain cases, .... 102
to appoint officer of watch, &c., where watch is
established, 173
and direct manner in which watchmen shall be
equipped,' 173
may order watch where none is established, . . 173
exempt from liability to watch, 174
SELECTMEN' — con/irtttef7.
to call meeting for organization of watch dis-
tricts in villages, 174
powers of, at tires when fircwards are not pres-
ent, . , 17G
may appoint cngineraen, &c., and discharge
them, where there is no fire depart-
ment, 177, 178
may establish tire departments, and appoint en-
gineers, &c., 178, 179
to call meetings for orgaixization of fire dis-
tricts, upon application, &c., 180
to act as board of health when none is chosen, . 188
may enforce vaccination of inhabitimts when
public health requires, 191
to give public notice, tfcc, when d;mgerous dis-
ease exists in town, 193
to endeavor that youth regularly attend school, 217
may take laud for school-houses, in cert;du
cases, 220
penalty on, for neglect to insert arti^^'lc in WiU--
raut for annual meeting concerning
abolition of school districts, 221
to determine site of school-houses in districts, if
district cannot agree, 223
powers and duties of, in laying out town ways,
Ac., 239-241
powers of, in relation to ways dedicated to the
the public, but not laid out and ac-
cepted, - 243
to ascertain correct location of highways, &c.,
in certain cases, 243
to cause permanent stone bounds to be erected
to mark angles, &c., of ways laid out
by them, 244
to assign limits to surveyors of highways, in
writing, before first of May, 245
to regulate watercourses in roads, 246
to determine compensation for damages occor
sioned by repairs of highways, . , , 247
to report at annual town meeting places where
guide posts are erected, and <rhere
needed, 249
penalty for neglect to make such report, . . 249
may establisli and grade sidewalks, in certain
cases, 250
powers and duties of, in relation to sewers and
drains, 254, 255
may establish regulations for survey of marble, 274
may appoint inspectors of milk, 274
may appoint weighers of coal, 279
to appoint persons to seize illegal measures of
charcoal, &c., 280
may license auctioneers, ttc, 280
when authorized by to^vus, may make rules
regidating hawking and peddliug by
minors, 281
to appoint weighers of vessels and lighters,
when such vessels are used to trans-
port stores, &c., 290
powers, &c., of, in relation to sign-boards and
gates, &c., at railroad crossings, . 300, 3G1
proceedings by, in relation to raising or lower-
ing highway, &c., crossed by railroad, 357
to apply to county commissioners before laying
out highways across niilroads, .... 358
certain acts and doings of gas-light companies
to be under control of, 343
to designate where posts of telegraph compa-
nies shall be located, 373
to assess damages to land oxvners in such case. 373
compensation for services, &c., 373
1092
INDEX.
S:E1jECTMKN — continued,
duties of, ri,'si>oeting unclaimed effects of passen-
yert? ill possession of common carriers, 427
to enforce provisions of game laws, &c., .... 430
may grant permits to take oysters and other
sliell fish from beds, 4^2
may g;rant licenses tophmt and grow oysters, . 433
to appoint agents to sell intoxicating liquors for
medicinal, &c., purposes, jmnually, . . 4-10
l>cnalty on, for neglect to appoint such
agents, 440
to pi'osecute bond of such agents for breach
thereof, 441
powers of, to abate certain nuisances, - . . 453,454
may give ccrtiticates to persons applying for
innholder's license, 4oij
may grant licenses to keepers of intelligence
offices, dealers in second-hand articles,
pawnbrokers, &c., 457, 458
may grant licenses for, and regulate use of,
steam engines, furnaces, &c., in cer-
tain places, 458, 459
may examine steam engines and boilers, and
suspend or prohibit use thereof, . 459, 400
may remove steam engines, &c., as nuisances in
certain cases, 4C0
to require unlicL'nscd dogs to be destroyed, . . 402
when to order payment from town treasury for
damages done by dogs to sheep, . . . 402
may grant licenses for billiard tables, &c., and
for theatrical exhibitions, itc, .... 403
when to certify approbation on indentures of ap-
prentices, 550
duty of, to inquire into treatment of appren-
tices bound by them, 550
duties and liabilities of, as to jurors, .... 0S0-GS2
may offer reward, not exceeding five hundred
dollars, for arrest of certain offenders, 831
reward, Iiow to be, paid, where there is moi*e
than one claimant, 831
SELF-GOVERNMENT.
exchisive right of, unless expressly delegated to
United States, 14
SENATE.
the first branch of the legislature, 19
to be final judge of elections, &c,, of its own
members, 20
vacancies in, how filled, 20
may adjourn, not exceeding two days, 20
shall choose its own president, 20
shall appoint its own officers, and make its own
rules of proceeding, 20
to try all impeachments made by house of repre-
sentatives, 20, 21
limitation of sentence by, 20, 21
sixteen members of, a quorum, 21, 30
may pimish for contempt, ttc, 22
cases where rights and privileges of, are con-
cerned, how tried, 22
when may require opinion of justices of supreme
judicial court, 27
compensation and mileage of members of, when
and how paid, 48
deduction to bo made for absences, 48
officers of, compensation of, 48
doorkeepers, At., how appointed, 133, 134
compensation of doorkeepers, &c., 48
books, &c., except, ttc, not to be ordered for
members of, at charge of state, . ... 48
not to sit for transaction of ordinary business
on rortain holidays, 49
Clerk of, salary of, 48
SENATE — contimted.
to make index am! duplicate journal, . ... 48
to certify atteudance, on written statement
of members, 48
to have custody of journal, files, &c., of, . . 49
copies certified by, to be evidence, 49
President of, compensation, 48
to approve accounts for expenditure, under
order of senate, HO
SENATOBS.
number of, when and by whom elected,
■ IS, 19, 35, 39, 02
districts for the choice of, 19, 35, 39, 02-(H
votes for, return of, 19, 59, fiO
by whom to be examined, &c., 20
how to be summoned to take their seats, ... 20
qualifications of, 20, 30, 39
to be specially sworn for the trial of impeach-
ments, 20
oath of, 20, 33
certain officers not to be, .30, 33
number and apportionment of, 39
as members of committees, may administer
oaths to witnesses, 49
not eligible to office created during their term of
service, except by vote of people, . . 49
together with board of education, to select can-
didates for state scholarships in their
districts, 214
exempted from serving as jurors, 0r9
SENTENCE.
what to be, where no punishment is awarded by
statute 844
may be for costs also, in cases of assault, &c.,
in addition to imprisonment, .... 844
persons convicted of violations of laws relating
to sale of intoxicating liquors, to be
sentenced to pay costs, S44
if offence is punishalile by imprisonment in jail,
bow sentence may be modified, . 844, 845
if punishable by fine or imprisonment, condi-
tional sentence may be awarded, . . , S45
to pay fine, &c., in limited time, or in de-
fault thereof, to be imprisoned, . . . 845
if punishable by fine and iuiprisoument, court
may award fine without inq)riBon-
ment, or imprisonment without liue,
except in cases respecting sale, &c., of
intoxicating liquors, 845
if person is committed for fine and costs, not
exceeding twenty dollars, magistrates
to inquire into ability of defendant to
pay, and to certify his inability, . . . 845
of female convicts not to be in state prison, 845, 84G
of female convicts with nursing infants, .... 845
of boys under sixteen convicted of state prison
offence, &c 845
of juvenile convicts, 84G
in all cases not capital or punishable in state
prison, sureties of peace may be re-
quired, in addition to puuislnnent
prescribed by law, 845
recogniz.iuco in such cases to be filed of
record, 845
procee'dings on forfeiture of, 828, 845
of sohtary imprisonment and hard labor for not
over three years, on a person not be-
fore sentenced to like punishment, . . 846
to state prison to be not less than for one year, 846
form of sentence to state prison, 846
to be for confinement to hard labor and sol-
itary imprisonment, 846
INDEX.
1093
SENTENCE — continued.
the solitary to precede the hard labor, . . . 840
convict, how removed to state prison, . . . 846, 872
eifcct of sentence to state prison, 84(3
when to bej;;in to run, 840
to work forfeiture of office, S4G
reversal of sentence on writ of error, to re-
store to office, &c., 840
to pay fiue and costs, or imprisonment in jail,
&c., sheriff to execute, . ....... 840
proceedings in such case, 840
of convict already in prison under sentence, . . 840
proceedings in such case, 840, 847
of death, when and how^ to be executed, . . .'. 847
when convict has become insane, 847
when convict is a female quick with child, . 847
who to be present at, and return of sherilT, 847
clerk of court to subjoin brief abstract of
retuni to the record of conviction, . . 847
against corporations indicted, upon default,
&<■■. 847
commutation of, provisions concerning, . . 855, 850
SEKGEANT-AT-ABMS.
how and when cbusen or appointed, 133
salary and bond of, I33
to serve processes, Ac, ordered by legislature
or cither branch, I33
to have general charge of state house and ap-
purtenances, 133
to keep chambers, &c., in state house in good
order, &c., I33
to preserve order among spectators of the
legislature, ]33
to prevent trespasses on the state house, ... 133
to notify prosecuting- oHiccr of such trespasses, 133
to attend members and clerks when charged
with messages, I33
to appoint door-keepers and assistants, subject
to approval of presiding officers,. . . 133
to appoint watchmen of the state house, for
whoso fidelity he shall bo respousi-
hl<^! 133, 134
may appoint fireman, 134
to c.Kereisc strict sujierintendence over his sub-
ordinate officers, 133
to receive no fee for opening rooms for view of
visitors, 134
to be commissioner on repairs, &c., of state
house, 134
SERPENTS.
penalties for selling, firing, i-c, without license, 400
SEKVAETTS, {sec Jppreuiiccs,) 549-551
SERVICE.
of writs and subpcenas on defendants, . . . 622-624
on defendants who are aliscut, or whose resi-
dence is unknown, 023, 045-047
on absent and unknown persons interested in
petitions for partition of lands, ... 699
defective or iusufflcient, court may order further
notice, 040,047,099
of trustee process, 721
SET-OPF.
of mutual demands between plaintiff and de-
fendant in certain actions, 069
not to be made except in actions founded on de-
mands which could themselves be set
off, 070
no demand to bo, unless founded on judgment,
or contract express or implied, . . . 669
nor unless it is for price of property sold,
money paid, had, or received, or ser-
vices done, nor unless it is liquidat-
92
SET-OPE — conUrmed.
ed, or can be ascertained by calcula-
tion, 009,070
nor unless it existed at time of commence-
ment of suit, and then belonged to de-
fendant in his own right, 070
of demands assigned to defendant with noti^'c
to phuutiif before suit brought, ... 070
of notes, drafts, and demands assigned within
six months previous to insolvency
proceedings to a person indebted to
an insolvent debtor, not to be set off
in action by assiguee, 537
of demands Ibuuded on bonds or contracts hav-
ing penalties, not to be for more than
is equitably due, 070
■where there are several plaintifls or dei'endants,
dcnnind must be due from all jointly,
except in case of dormant partners, . 070
how and when may be made in case of dormant
partners, 670
how allowed in actions agidust trustees, execu-
tors, and administrators, 670
allowed in action by and against executors and
administrators, as if action were
against deceased, except, &c., . . 020, 670
not allowed in such actions unless demands are
in same right, 070
judgment in such cases, how cntei-ed, 670
of demands against a person for wdiose use an
action is brought by a trustee, .... 070
declaration to be filed with answer of defend-
ant when he relies upon a set-off, . . 070
subsequent allegafioDs and pleathngs in such
case to be same as if action was
brought thereon, 070, 071
plamtiff entitled to all legal defences, 071
not to discontinue after answer in set-off is
filed, without consent of plaintiff, . . 071
statutes of limitation, how applicable to, . 071,779
provision for costs, 071, 781
judgment to be rendered for balances found due
to either party, 071
not to be rendered against plaintiff if ho
had assigned bis demand before action
brought, nor for balance due to any
other person, ... 671
defendant who files, how far regarded like a
plaintiff in other actions, as to writs
of review, 743
In action before justices of the peace
and police courts, 071
defendant to file set-off at the time wdien action
is entered, 071
other proceedings as in other courts, 671
justice or court not to enter judgment for an
amount exceeding the limit of their
jurisdiction in other cases, 671
Of judgments, when a cross action is brought
by a defendant, or one of several de-
fendants, against a plamtiff out of
state, 645
when plaintiff in review reduces the origi-
nal judgment, 748
Of executions between same parties may be
"""1'-' 087
i.i what cases not allowed (js7
when not to extend to attorney's fees and
disbursements, og^
proceedings therefor, (537
Of improvements, against rents and profits
recovered in writs of entry, OM
1094
INDEX.
SET-OFF — continued.
In case of persons summoned as trus-
tees, 7-'3, 721
SETTLE MEKT.
how acquirt-'d so as to oblige to^vll to sup-
port person when pooi', ..... 390,391
provisions lor persons who have begun to
acquire under former hiws, 301
to continue till lost or defeated by acquiring
new one, 301
former, defeated by acquiring new one, , . 301
SETTLEMENT OF TITLE.
proceedings by persons in possession of
real estate to compel parties claiming
adversely to bring Jiction, 606
SEW^ERS AND DRAXNS.
provi.sions concerning, (seeX'/'airtS,) .... 253-255
SEXTONS, &c.
to make return to to\vn clerk of cert:iin facts
concerning deaths, IGO
compensation lor such return, 160
SHAKERS.
how exempted from enrolment in militia, ... 93
SHARES.
in corporations, how attached and taken on ex-
ecution, 627, 689, 600
SHEEP.
where taxable, 76
lesB tluui six mouths old, exempted from tax-
ation, 75
to be impounded ii' found at large contrary to
law, &c., 1S5, ISO
six, exempted from attachment and execu-
tion, 024, 088
SHELL PISH.
other than oysters, penalty for taking unlaw-
fully, &c., 432
permita to take may bo granted by selectmen, &c., 432
may be taken by inhabitant of the town for
family use witliout such permits, . . 432
vessels, hoats, &c., having on board, may be
seized, 433
to be discharged, if owner, &c., pays pen-
alty before prosecution, 433
prohibitions concerning, not to extend to In-
dians, 433
regulations concerning, in Barnstable, Chatham,
3Iarshpce, and Nantucket, 433
SHERIFFS.
when and how elected, 38, 70, 71
term of office, 70
not to hold certain other offices, 30, 33, 149
return of votes for, 59, 60
to be sworn, 350
in case of ijiilure to elect, governor to order
new election, 71
vacancy in office of, how filk-cl, 72, 150
may appoint deputies, who sludl be s\vorn, . . 150
bond to be given by, to treasurer of the com-
monwealth, 150
with condition fiuthfully to ])erform his du-
ties,and be responsible for his dc]iuties, 150
sufficiency of, to be examined annually by
superior court, 150
if insufficient, new to be given, 150
how surety on, may be discharged, 150
penalty for neglecting to give, 150
proceedings in case of such neglect, .... 150
proceedings when condition of, is broken, . 150
copies of, to be furnished by treasurer, to any
person applying, ic, 151
Bucli eupy to be received as evidence, .... 151
SHERIFFS — continued.
if execution of is disputed, original to be
produced, 151
default of deputy after death, &c., of sheriff,
to be adjudged breach of condition, . 151
ealaries of, in the several counties, 152
actions for malfeasance of sheriif, &c., may be
sued against executors, &c., 151
when appointed to till vacancy, to notify im-
mediately coroners of the county, 150
not to be arrested in ci\ il action, 151
executions to run against property of, only, . . 151
if returned unsatisfied, &c., may be re-
moved by governor, 151
if removed, alias execution to run against body, 151
may be removed by supreme judicial court, . . 553
to trtiusniit returns of votes delivered to them
within seven days, 59, C9
to transmit precepts for election of members
of congress, 08
to transmit warrant of treasurer for state tax
to assessors, 77
to collect taxes in certain cases, 79,61,83
duties of, when tax lists, &c., are committed to, 86
fees in such case, SO
may make requisition for militia in case of
riot, &c., 110
to serve all writs and processes within their
counties lawfully issued to them, . 145, 151, 018
may serve writs, &c., where their towns, &c.,
are parties, 151
may summon juries for assessing damages
caused by locating railroad, &c., when
not members of corporation interest-
ed, 151
may sen'c notices, &c., by attested copies, . . . i51
returns of service to be prima facie evidence, . . 151
may require aid in execution of official duty in
criminal and certain other cases, ... 151
penalty for refusing to aid, when required, . . . 813
not to act as counsel, &c., under penalty, . 151, 010
not to advise suit, &c,, with intent to be em-
ployed to collect, under penalty, . 151, 618
may serve process in their hands at time of re-
moval from office, 151
to attend all courts in their counties, 152
to attend meetings of county commissioner 8
when ordered, 152
to account annually with county treasurer, un-
der oath, for all fees, &c., received,
and pay over the same, 152
to make annual return of moneys received,
under oath, to secretary, 152
return to specify iees iu civil and criminal pro-
cesses, and statement of attendance
on courts, &c., 152
penalty for neglect to make return, 152
to transmit returns of census to 6ceret;u-y, un-
der penalty, 168
exempt from liability to watch, 174
to abate nuisances, Ac., under direction of board
of health 190, 101
to preside at trials by jury in highway cases, if
no other person is appointed, .... 236
duties in such case, 236
to inquire into violation of I^ord's day, 434
duties of, respecting violation of law in selling
liquors, <tc., 414-117
penalty on, for neglect to serve process in liquor
cases, 448
protected from liability for service of such pro-
cess. &c., 448
INDEX.
1095
SHUBXPFS — conthmed.
how to give uotku of special term of supreme
court for triul of capital cases, .... 655
to adjourn court, aud give uotice thereof in ab-
sence of judge, 568
penalty on, for not payiug money collected on
execution ou demand, 691
to perform duties of criers without compensa-
tion, OlN
exempt from serving .18 jurors, Oru
when liable if they tuke a bail bond with one
surety ouly, 642
when to deliver up body of person executed to
college proicBSors of surgery, .... 791
when to friends for iulermeut, 7'.H
when to any surgeon, 7'Jl
to seize forged aud counterfeit bills, notes,
tools, &c.,
to have care, rule, &c., of jails, except in Suffolk,
compensation therefor,
to oversee infliction of sentence of solitary im-
prisonment in jail,
not to charge rent to jailers, ifce., for houses pro-
vided for them by theftounty, ....
when may petition superior court to fix the sal-
aries of certain officers,
shall keep and deliver to successor all warrants,
&c., i?(K),
penalty for neglect,
shall surrender to successor all prisoners, &c.,
shall deliver bodies of deceased prisoners to
friends,
shall not furnish liquors to prisoners, unless
prescribed,
penalty therefor,
shall remove ofiBeers appointed by them in jails,
&c., who use intoxicating liquors as a
beverage, 863,
may remove prisoners "in case of pestilence or
fire,
duty of, iu regard to making returns of jails
and houses of correction,
form of such returns,
duty of, in execution of sentences of deuth, . .
to request the attendance of certdn per-
sons, •
to permit others to be present,
to make return of doings to sccret;iry's office,
to file copy of Avarrant and return in clerk's
office,
fees of, for official duties,
for serving jjrocess to be indorsed on the
writ, 788
when not entitled to witness fees in criminal
cases, 7SG
not to have interest in certificates for witness
fees, 788
to make complaint for injury to property, &c.,
of Humane Society, 800
duty of, in suppressing riotous and unlawful
assemblies, 815
may remove prisoners from one jail to another
in same county, at his discretion, . . ^7
may furuish cmployraeut to prisoners, 858
those confined iu jails not required to labor, 858
to be reimbursed by county for damages caused
by insufiicieney ofjail, 85S
ihlsely assuming to be, how punished, 81-1
suffering escape of person under sentence for
fines, costs, Ac, to be liable to pay
the same, 852
alono to receive fines, forfeitures, and costs, . , S52
SHERIFFS — continued.
payment to deputy or jailer to be same as
payment to sheriff, 852
to pay them over to county treasurer iu thirty
days, 852
remedy against, for neglect, 852
to render semiannual account to county treas-
urer, 852
penalty for neglect, 852
penalty ou, for arresting fugitives from labor, . 741
actions against, for default of deputies, to be
brought within four years, 777
Deputies of, to be appointed by, and sworn, , 150
to collect taxes in certain cases, . . . 7U, 81, 83
duties aud fees, when tax lists are commit-
ted to, 80
to serve process directed to them by county
commissioners, 145
to serve sdl processes legally issued to
them, 151, GIS
may serve processes though their to^vn, &c.,
is a party, &c., 151
may serve processes, &c., in their hands
when vacancy occurs in office of
sheriff, 151, 152
duties of, respecting violation of law iu sell-
ing liquors, &c., 444, 447
protected from liability for service of pro-
cess in liquor cases, 448
penalty on, for neglect to serve such pro-
cess, 44S
for arresting fugitives from labor, .... 741
penalty for refusing to assist, when re-
quired, 813
penalty for falsely assuming to be 814
exempt from serving as jurors, 079
SHIPS AND VESSELS.
where, aud to whom taxable, "4, 75, 77
pilotage of, 287-289
penalty for boarding, in certain harbors, Avith-
out leave, except by pilot, &c., .... 290
for not leaving, when ordered, in such case, 200
for enticing away crew of, 200
how recovered in such cases, 200
what to be deemed limits of certain harbors in
such cases, 200
record not necessary to validity of mortgage of, 707
lien on, 70S, 709
{See Liens.)
wilfully casting awny, »tc., to injure owner or
insurer, how punished, 8*>l, 805
fitting out with intent to destroy, &c., to injure
owner, A-c, 805
owner, &c., making false invoices, 805
master, iSrc, making false protest, 805
SHIP OWJSTERS.
how fur liable for embezzlement, &c., by master
and mariners, 289
how to be sued by several freighters, &c., when
ship and property are not sufficient to
pay each iu full, 289
when charterers to be deemed, 289
liability of, not to alfect remedy agaiust master
or mariners, in case of embezzlement,
&c., 289
SHIP TIMBER, (see Lumbery) 271
SHOES, (see Boots, (jx-.,) 270
SHOP BUiliS.
punishment for engraving, &e., or circulating,
in similitude of hank bills, 811
SHORE LINE BETWEEN HEADLANDS,
how described, , , ^3
1096
I^^DEX.
SIDEWALKS .
may be constructed by persons o^vning or occu-
Ijyiu^'- land adjoining- highway, in
towns, ;:40, 250
■\vjdtli of, how indicated, 249, 250
penalty for riding or driving upon, how recov-
ered, &c., 250
liability of persons for obstructing highways not
dimiuiwhed, &c., 250
authority of surveyor of highways, &c., not
hmit«d by these provisions, 250
provisions not to apply to cities, 250
In cities and towns adopting provisions of
law tlierefor, may be established and
graded by mayor and aldermen and
selectmen, 250
one half the expense of, may be assessed on
abutters, 250
assessments for such part of expense to be a
lien on real estate, 250
not to be dug up or obstructed without consent
of mayor and aldermen or selectmen, 250
city councils may provide by ordinance for re-
moval of snow and ice from, 250
and affix penalties for violation of bucIi ortli-
nancos, 250
SIGN-BOARDS.
when to be erected at railroad crossings, . . . 3G0
SISTERS.
when to inherit property of brotliers or sisters, 474
SLANDER.
evidence of truth of matter may be given in evi-
dence as justification, in civil actions
for, 002
justification in actions for, not proof of malice, 0(52
form of iloelaratiou for, 000
actions lor damages for, to be brought in two
years, 777
SLEIGHS, &c.
not to bi'. used in roads without bells, i'2'i
SLUNG skOT.
Xienalty for being armed with, &c., SIG
for manulacturing, 81G
SMALL POX.
provisions rebiting to persons sick with, .... 193
SNOW AND ICE.
city councils may provide by ordinance for re-
moval of, from sidewalks, and affix
penalties, . 250
SOCIAL LIBRA-KIES. (Sec Libraries.)
provisions concerning, '-JOS, 209
SOLDIER.
not to be quartered in any house, In time of
peace, without the owner's consent, . li>
how so quartered in time of war, 10
in actual service, may make nuncupative will, . 477
SODOMY,
how punishnd, Si^
SOLE CORPORATION.
disseisin of, provisions respecting, 775
SOLE LEATHER, {.--w /.m///o-.) 209
SOLITARY IMPRISONMENT.
sentence of, in houses of correction, how to be
served out, ^^'~
refractory convict may be inniished by 802
sentences to, in state prison, how served out, . 874
SPEAKER.
of bonsi' of rrprcsentfitives, liow chosen, .... 2"2
SPECIAL ADMINISTRATOR, . . . 70,72,145
provisidus respecting appointment of, 4S4
SPECIAL COMMISSIONERS, (.see Count}/
Coinmissionersy) 70, 72, 145
SPECIAL PLEADING.
abolished, 656
{See Pleading.)
SPECIE.
banks to keep an amount of, equal to fifteen per
cent, of circulation and deposits, . . , 302
deposited by Boston banks in clearing liouse to
be deemed specie, 303
cei-tain balances, Ac., to be deemed, 303
SPECIFIC PERFORMANCE.
of written contracts, suits for, may be brought
in supreme court in equity, 559
for the conveyance of land, may be enforced
by superior court or probate courts,
when party thereto dies, or is put
under guardianship, 575
conveyance, how ordered by probate court,
and made in such case, 575
SPECIFICATION OF PARTICULARS.
may be required by court of either party to
actions, 600
SPENDTHRIFT.
word, how construed, 51
guardian of, ho\f appointed, 644
powers and duties of, 544
contracts by, when void, 544
living out of state, real estate of, how sold by
guardian, 513, 514
common, how punished, 820,821
SPIRITUOUS LIQUORS,
provisions respecting manufacture and sale
of, 438-453
(See Liquors.)
SPRINGFIELD.
land in, ceded to United States, 44
SPRINGS.
poiwoning, how punished, 794
wilful or malicious corrupting, <S;c., 823
SQ,UIBS.
penalties for selling, firing, &c., without license, 4G0
STABLES.
penalty for erecting or using, for more than four
horses, except when directed by se-
lectmen, &c., 458
use, &c., of, may be restrained by injunction by
supreme judicial court, 453
, livery, in maritime towns, not to be used except
when selectmen direct, under penalty, 458
keepers of, not to give credit to students,
under penalties, 457
STAGE COACHES.
(>■((' Drira:^, J'lihUr. Conveyances^ Vehicles.)
STANDARD "WEIGHTS,
measures, and Ijalanccs, 2S4
{See jrt'if/lits and Jfcwswrc,?.)
STATE.
applied to different parts of the United States,
how constnu'd, 51
STATE ALMSHOUSES. {See Almshmses.)
provisions respecting, 400-403
STATE HOUSE.
and appnrtennnres, who to have care of, . . 133, 134
joint standing committee on, to report upon re-
pairs, &c., 54
penalty for defacing, &e., 55
commissioners on repairs, &c., of, who to be, . 134
powers and duties of commissioners of, ... . 134
fireman of, how and Ity whom appointed, . . . 134
duties and salary of, 134
STATE INDUSTRIAL SCHOOL FOR
GIRLS. {Sre Iiid/isfrial Schnof.)
provisions respecting, 413-417
INDEX.
1097
STATE LIBRARY, {see Library,) 04
STATE LUNATIC HOSPITAL, (see Luna-
tic Hospitals,) 400-411
STATE MAP.
provisioiiB for correcting^, 144
STATE PRISON.
General Provisions.
to be the general penitentiary and prison, . , , SiJ'J
prisoners seutcnccd thereto by United States
courts, except under fug^itive slave
law, may be conlined, 803, 870
jurisdiction of offences therein, to be iu Suffolk
and Middlesex courts, 870
process to be served therein, to be directed to
warden, 670
and to be served and returned by him, . . , 870
governor and council may cause additional cells
or building's to be made, 870
and additional accommodations for oflicer, , 870
shall visit t!ie prison annually, 870
shall inquire into alleged abuses, 870
may alter general discipline, 870
shall draw warrants for money appropriated
for, 870
oflicerB and assistants in, exempted from mil-
itary duty, 93
Officers and Salaries.
Officers, of whom to consist, 870
Inspectors, bow appointed, tenure and term of
office, 870
"Warden, chaplain, physician and sur-
geon, how appointed and tenure of
office, 870
Deputy warden, and other officers, except
assistant watchmen, 870
Assistant watchmen, how appointed, &c., 870,871
warden to report his appointments to inspector, 871
no officer of prison to liave any other business, . 871
Salaries of the various officers, 871
Inspectors.
appointment, tenure, term of office, and sala-
ry. 870, 871
duty and authority of, 871
to establish rules and regulations, ..,;.,. 871
subject to approval of governor and council, 871
when approved, copy to be delivered warden, 871
to visit the prison monthly, or oftencr, 871
single inspector to miiko weekly visit, ... 871
to examine prison books and documents, .... 871
must approve warden's bill of purchases, before
payment, 871
to report to governor viohitions of law and omis-
sions of duty by officers, 871
to remove forthwith unfaithful, &c., officers, and
tliose using intoxicating liquors as a
beverage, g71
to make annual detailed report to governor, . . 871
subject matters of the report, 871,872
Chaplain.
appointment, &c., salary and duty of, .
870, 871, 872
Physician ^vnd Surgeon.
appointment, &c., of, S70, 871
general duty, g^rg
all orders for hospital supplies to be in writing, 872
care and treatment of the sick and insane, ... 872
Warden and Deputy Warden.
■Warden, appointment, tenure, and salary, 870, 871
0-2^ 138
STATE FHISO'N — continued.
to give bond witli sureties, to be tiled in
treasurer's office, 872
shall execute warrant for removal of con-
victs from j;nl to prison, 872
proceedings on such warrant, 872
sheriffs and others to aid in executing the
warrant, 872
shall reside constantly within the prison
precincts, 872
shall report his appointments to inspectors, 871
to have no other business, 871
to propose in writing alterations in regula-
tions, 873
to have charge, custody, and government of
convicts, 873
of the prison and property, and to be
treasurer thereof, 873
regular accounts thereof to be kept, . , . 873
accounts to be made iu detail, to September
30,cacli year, 873
to be filed in treasurer's office for inspec-
tion of the legislature, 873
duty of, in regard to all bills for supplies,
&c., 871,874
duty and power na regards discipline nnd
care of convicts, 874, 875
may cause Sabbath school to be kept, ... 875
and evening schools for one hour, except
on Sundays, 875
to regulate visits and communications be-
tween convicts and their friends, . . . 875
may make rules as to introduction of news-
papers and visitors, 875
visitors must have permit, 875
to keep register of visitors, 875
may refuse admission to person having per-
mit, 875
to report such refusal to inspectors, .... 875
to keep record of conduct of convicts, . . , 875
duty as to regulations for the rations, cloth-
ing, Ac, of convicts, 870, 877
as to discharged convicts and their agent, 677
vacancy in office of, how filled, 873
warden pro tempore, where and how ap-
poiutod, g73
Deputy warden, appointment, &c., and sal-
ary, 870,871
duty of, in absence or disability of warden, , 873
to act, and be liable, as warden, 873
if governor and council are not in ses-
sion, inspectors may require him to
give bond, 873
to have salary of warden from time of
giving bond, S73
if does not give bond, inspectors may re-
move him, and appoint warden pro
tempore, 873
bond, and duties and liabilities of war-
den pro tempore, 873
Contracts.
to be made by warden in writing and approved
by the inspectors, 873
■warden may sue or be sued thereon, 873
suit not to abate, by office of warden becoming
vacant, 873
proceedings in such case, 873
controversies in regard to, warden may submit
to arbitration, 873, 874
inspectors to .approve the arbitrators, , . . 874
principal articles to be purchased by the year, . 874
1098
INDEX.
STATE "PBISOU^ ~ contimicd.
propoBals tlierofor, and procecdiugs thereon, . . 874
no officer to be concerned in coutractB, &c.,
about tbe prison, 874
bills to be taken of all purchases and supplies,
&c., 874
examination as to their correctness, .... 874
Discipline, &c., ok Convicts.
treatment to he kind, 874
order and obedience to be enforced and escapes
prevented, 874
warden may require aid of idl olEccrs t!ierc-
for, except, &c., 874
convicts sentenced to hard labor to bo employed, 874
not to be employed iu printing or engraving, 874
the refractory may be confined to solitary labor,
by warden, if one or more inspectors
consent, 874
Bentence by court of solitary imprisonment, how
executed, 874
Sabbath soliool may be maintained, 875
suitable instruction iu reading and writing, . . . 875
Convicts to be kept separate, and have no in-
tercourse witli each other, 875
interviews of with friends, 875
communication between, and friends, .... 875
regulations as to newspapers and visitors, , , , 875
visitors not atimittcd without a permit from an
inspector or the warden, 875
names and resiliences of visitors to be registered, 875
register to be kept by warden and open to in-
spectors, 875
admission may be refused to persons Iiaving a
permit,
warden to report such refusal to inspectors.
875
875
Recokp of CoNnucT.
to be kept by warden and submitted to governor
and council, 875
what deductions to be made from term of
sentence, for good behavior, by the
record, 875
Escapes, &c.
escapes, or jitterapts by violence to escape, how
punished, 876
assaults oa warden, insiiector, or other officer, . 876
puuishmuut, when done by one under life sen-
tence, 876
punishment of officer suffering an escape, , . . 876
leaving convict at large, or other unlawful in-
dulgence, 870
aiding convict to escape, how punished, .... 876
forcibly or fraudulently rescuing or attempting
to rescue, 876
unlawful conveyance of articles into the prison
for any convict, how punished, .... 876
receiving articles from convict to carry out
of prison, 876
Ratioxs, Clothing, &c., of Convicts.
warden and inspectors to m;ike regulations, . . 876
subject to approval of governor and council, 876
all rations, clotliing, &c., to be of good quality, 876
may be changed from time to time, 877
no intoxicating liquors to be furnished the con-
victs, 876
Bubsistence, &c., in hospital to he directed by
physician, 876
articles of comfort and indulgence, how
ordered, and for what time, 876
prison to be sufficiently ventilated, 877
|iiiflOners-to have baths weekly, unless, &c., . - 877
878
878
R78
878
878
878
873
STATE :PB1S0'N ~ continued.
Insane Convicts.
provisions concerning,
who to be commisioners to examine,
warden to notify of apparent insanity of convict,
commissioners to investigate the case,
proceedings'if majority find that the convict
has become insane,
convict to be removed to lunatic hospital, . . ,
on restoration to health to be returned to prison,
confmcraeut in hospital to be computed as part
of term of imprisonment,
Discharged Convicts.
convicts when discharged to be decently clothed, 877
warden may pay, not over live dollars, to each
deserving, 877
or to the agent, who shall account therefor, 877
Agent for, appointment, term of office, duties,
and salary of, 877
office to be in Charlestown or Boston, ... 877
to keep account of expenditures, 877
expenditures not to exceed five hundred dol-
lai'8 in any one year, 877
to make annual return to the governor and
coimcil, 877
STATE HEFORM SCHOOL FOR BOYS,
{spf Hrform School,) 418, 423
STATE SCHOLARSHIPS, (see Scholar-
.s/(/>,s,) 213,214
STATE TAX, (■'O-'c Taxes,) 77
STATUTE OF FRAUDS, (sec Fnmds,) . . 537
STATUTE OF LIMITATIOJNTS.
provisions of, 775-779, 839
(See Limitations.)
STATUTES.
enacting style of, 31
a genend statute may be referred to in pleading
by chapter, or other general designa-
tion, 654
and laws of this and other states and foreign
countries, how proved, 678, 679
(See Laws.)
STAT OP PROCEEDIWaS.
in insolvency, how may be made, GOO
STAVES.
provisions concerning, 207
(See Hoops and Staves.)
STEALING.
in a building, ship, or vessel, how punished, . . 797
in a building on fire, 797
of property removed because of alarm of fire, . 797
( See Larceny,)
STEAMBOATS.
proprietors to publish list of unclaimed effects
of passengers, 426
to give notice to selectmen, &c., of town or city
where articles arc, 426, 427
penalty on, for neglect to advertise, &c., . . . , 427
(Sec Passengers.)
STEAM BOILERS.
may be examined by mayor and aldermen, A-c,
and use of, suspended or prohibited, 459, 460
may be removed as nuisances by mayor and al-
dermen, &c., 460
not to be made or used without safety plugs, . . 4(50
penalty for making, without safety plug, . . . . 460
for removing safety plug, <tc., 460
STEAM E]>rGINES, FURN'ACES, &c.
erection and use of, may be licensed and regu-
lated, in certain cases, by selectmen,
&c., 458,459
raDEx.
1099
STEAM ENGINES, &c. — contimted.
owner ag^^ieved may have jury as in case of
highway, • 459
use of, may be restrained in mean time,by supe-
rior court or justice thereof, 459
verdict of jury, aud costs in such cases, .... 459
erected and used contrary to law, &:c., to be
deemed common nuisances, . . . 459,400
may be examined by mayor and aldermen, &c.,
and use of, suspended or prohibited, 459, 460
nxny be removed by mayor and aldermen, &c.,
as nuisances, 400
STEELYARDS.
vibrating, may be used in weighing, if sealed &c.,
annually, 2S5
STOCKS.
fraudulent over issues of, how punished, . . 801, 802
false entries as to transfer of, in books of corpo-
ration, how punished, 802
omitting to make true entry of transfer, .... 802
in trial of such case, the books to be evidence, . 802
public, and in moneyed corporations, &c., taxa-
able to owner, 74
stock for carrying on trade or business, when
exempt from attachment and execu-
tion, G24, CSS
STOVE.
one iron, used for warming dwelling-house, ex-
empt from attachment and execution, CSS
STRAITSMOtXTH ISLAND.
ceded to United States, 45
STRAY BEASTS.
when taken up, notice of, to be entered with town
clerk, 425
notice of, to be entered by clerk in book kept
for that purpose, 425
how to describe them, 425
how to be cried, and wliat notification to be
posted, 425
of ten dollars value, how to be appraised, . . . 425
appraisers of, by whom appointed and sworn, . 425
owner of, to have restitution if he appears with-
in three months, 426
to pay charges before restitution, 426
charges for keeping, &c., how determined, . . . 425
finder of, may sell at public auction, if o\vner
does not appear within three months, 426
how to give notice of sale, 426
penalty on, for not giving notice, 42i>
to deposit net amount of sale in town treasury, 420
if not sold, owner may have restitution with-
in one year, on paying charges, . . . 420
if sold, to have proceeds if he appears with-
in one year, 426
if owner does not appear, proceeds to be di-
vided between town and finder, . . . 426
penalty for taking away, without paying
charges, 426
to whose use, and how recovered, 42G
if taken up within ten miles of Agricultural
Hall in Brighton, finder, how to pro-
ceed, 425
STREETS. (See Higlitcays.)
repairs of. &c., 245-24S
STUBBORN CHILDREN.
how punished, 820, 821
SUBORNATION OP PERJURY, {see Pcr-
J'tnj.) 812
SUBPCENA.
On bills in equity, how signed and is-
sued, 559, 622
how sen'od, 624
SUBPCENA — co«^'nMerf.
To witnesses, may be issued by a clerk of a
court of record or any justice of the
peace, 672
how and by whom served, 672
may be issued by police courts, to run into
any county for witnesses iu criminal
cases, 571
(See Summons,)
SUFFOLK COUNTY.
jurisdiction of, in common with Middlesex, on
part of Charles River, 144, 145
county property in, to belong to Boston, . . . 144.
court house, jail, Ac, in, to be provided by Bos-
ton, 144
county charges in, to be paid by Boston, .... 144
in Boston, aldermen to act as county commis-
sioners for, 148
to have powers of commissioners in laying
out ways, &c., 242
treasurer of city of Boston to be county treasur-
er of, 149
Board of accounts in, of whom to consist, . . 149
quorum of, 149
to meet quarterly, and examine and allow
criminal costs, expenses of jail, <S:c., 149, 150
compensation of, 150
SUMMONS.
to witnesses in criminal cases, may be issued by
police courts, to run into any county, . 571
in criminal cases,may be granted by justices
of the peace, on request of attorney-
general or party accused, 010
On defendant in civil actions, G22, 023
separate to be served where property is at-
tached, 021
to be served by copy in other cases, 62^;
to be served personally, or left at last and usual
place of abode of defendant, 6>*:i
bow served on absent defendants, 62^t
' in real actions, • 023
how served on counties, cities, towns, parishes,
and other corporations, 023
in equity eases, - 024
SUNDAY.
provisions concerning the observance of, . . 434, 43o
(Sec Lord's Daj/)
SUNKEN ROCKS.
buoy on, ceded to I'^nitod States, 44
SUPERIOR COURT.
to liave one eluL'f, and nine associate justices, . . 56.:
appointment of justices and tenure of office,
24, 27, o(k}
if chief is absent, senior justice to perform his
duties 565
held by one justice, to have powers given to the
court, 56'J
justices of, to be conservators of the peace,
throughout the commonwealth, 5(55, 827, 83 1
to make arrangements among themselves
for holding terms, 507, 568
may award judgments, frame \vrits, and have
necessary powers, 505, 506
make rules, 56(i
actions not to be commenced in, where ad dam-
num is less thau twenty dollars, . . . 50.':
parties may agree that judgments of, shall be
final, 50:;
action in, may, in certain cases, be removed to
supreme court, upon affidavit or con-
sent of parties, 505, 56*^
judge of, not tocharge juries in matters of fact, . 5(H.
1300
INDEX.
SUPERIOR COTTRT^ continued,
may set aside verdicts and order new trials, 566
may, after verdict, report ease to supreme
court, 566
decision of single judg-e on pleas in abatement,
and motions to dismiss for defect in
form, to be final, 566
to cnt«r orders and rescripts of supreme court,
and judgment according- thereto, . . . 5G3
may enter judgment as of any day of a former
term, 5G7
may be adjourned, 618
how adjourned in absence of judge, and notice
given, 568
■ may establish seal, 568
may appoint necessary officers, 568
expenses in£ident to, how audited and paid, . . 567
cases in, of habeas corpus and personal liberty,
of nuisance, and violations of liquor
law, to have precedence, 565
records of other courts transferred to, how kept
and certified, 565
Salaries of judges, 665
Appeals asd Exceptions.
appeals from, to supreme court, in matters of
law apparent on record, 5G3
exceptions, how taken, allowed, and certified,
and restored to files, 506
trial not to be delayed by allowance of, . . 567
if frivolous, judgment may be entered, . , . 567
if disallowed or altered, may be proved, . . 667
questions on appeals, exceptions, *tc., entered
in supreme court, not to transfer case, , 567
nor to discharge security in the action, . . . 567
copies of papers iu such cases to be trans-
mitted by clerk, 563, 567
expenses of such copies, how taxed, . , . , 563
original papers may, in certain cases, be
transmitted, 563
(See Appeals^ Exceptions.)
Terms.
times of holding in the several counties, .... 564
civil and criminal business to be transacted
at different terms in certain counties, 504
not more than four for criminal business
only, to be held by same judge in one
yt^-ar, 565
suits in recognizances in criminal cases to
be brouglit in terms for criminal busi-
ness, 564
established to be held at one place, may be
adjourned to any other shire town in
same county, 5GS
two or more sessions of, may be held at
same time, and business divided, . , . 567
first day of, how designated, 567
JrRlSDICTION.
CriminnL
Original, of all crimes, offences, and misde-
meanors, 562
to be final, except in cases expressly pro-
vided for, 562
Appellate, of all offences tried before justices
of the peace and police courts 562
CiHl.
Original, of all civil actions except those of
which supreme court, police courts,
and justices of the peace have original
and concurrent, 662
SUPERIOR COXTRT — continued.
Exclusive original, of complaints for flowing
I'lDd, '^ 562
of information for intrusion on Indian lands, 719
Original and concurrent with supreme
court of petitions for partition, writs
of entry to foreclose mortgages, civil
actions where damages or property
claimed exceed four thousand dollars
in Sufl'olk, or one thousand dollars in
other counties, 562
suits for redemption of mortgages, .... 714
Original and concurrent with police
courts andjusticcs of thepeace, of civil
actions wherein damages demanded ex-
ceed twenty dollars, and do not exceed
one hundred dollars, or with the
police court of Boston, three hundred
dollars, 503
Appellate from justices of the peace and police
courts, 562, 572, 607, 609
when appeal or complaint for non-entry
thereof is not duly entered, how it
may be entered afterwards on leave, . 563
security discharged by non-entry of appeal
in due season, not revived by entry on
leave, 553
from courts of insolvency, 562
on allowance or disallowance of claims
offered for proof in that court, .... 585
of discharge to debtor, 502
from commissioners of insolvency on insol-
vent estates of deceased persons, . . . 562
when claim does not exceed three thou-
sand dollars in Suffolk, or one thou-
sand dollars in any other county, . . 497
entry and trial of such appeals, 947
from board of health relative to ofl'ensive
trades and closing tombs, .... 194,196
from magistrates on charges of fraud in
cases of poor debtors, 638, 639
MisCELL^vxEors Powers.
court may appoint person to act as attorney-
general or district attorney in certain
cases, 130
to examine bonds of sheriffs and coroners an-
nually, 150, 152
may discharge surety on sheriffs bonds, .... 150
to certify to governor and council, &c., if sheriff,
neglects to give bond, 150
may remove register of deeds in Suffolk in cer-
tain cases, 153, 154
to approve by-laws of towns, 158, 230
of engineers of fire districts, ISI
of law library associations, 2C8
to receive verdicts of juries in highway cases, , . 2;J7
may assess kindred of paupers for their support,
&e., in certain cases, 392, 393
Jurisdiction respecting ways in Suffolk, . . . 242
of cases for damages by officers of United
States coast survey, 46
in bastardy cases, 404, 405
in cases of liquor seized on search war-
rants, 447
respecting nuisances and waste,
189, 190, 453, 710, 711
steam engines, 459
of naturalization of aliens, 618
of cases from justices of the peace and po-
lice courts when title to real estate
is brought in question, &c., . . , 600, 731
INDEX.
1101
SUPERSEDEAS OP EXECITTI03>r.
{See £xecutioHt Heric-u:, EvuleJicc.)
SUPPORT.
of persons committed as rogues, common
drunkards, &c., S20
Of paupers. (See Paupers,)
SUPREME JUDICIAL COURT.
JUSTICES.
one chief, and five associate justices, 553
how appointed, and tenure of office, ... 17, 27, afjS
not to hold certjiin other offices, 30, 33
if cliief is absent, senior justice to perform his
duties, 5G5
to be conservators of the peace throughout the
commonwealth, 5G5, 827, 831
four to constitute quorum for full court, or
court of law, 553
one at law term to have same powers as at jury
term, and four jit jury term to have
powers of full court, 555
opinions of, may be required by each branch of
legislature, and governor and council, 27
majority of, may remove from office clerks of the
courts, commissioners of insolvency,
sheriffs, registers of probate and insol-
vency, and district-attorneys, .... 553
not to charge juries on matters of fact, .... 5CG
to arrange among themselves for holding terms
of the court, oG7, 56S
one to be designated to attend at all times in
Boston to hear equity cases, 561
Salaries of, 25, 55S
to be paid without specific appropriation, . 13'J
Single judge may arraign prisoners indicted
for cjjpitul crimes, 553
may pass sentence if prisoner pleads guilty, 553
may assign counsel and prepare for trial, if
he does not plead guilty, 553
after decision upon exceptions in capital
cases, may pass sentence or make ar-
rangements for new trial, 554
may reserve questions of law for, and report
cases to, full court, 554
may, after verdict, report case to full court, 50G
powers of in equity cases, 559, 500
decision of, on pleas in abatement and mo-
tions to dismiss for defect of form,
final, 5GG
GENERAL PROVISIOXS.
to have general superintendence of courts of in-
ferior jurisdiction, 553
to issue certain writs to courts, corporations,
and individuals for furtherance of jus-
tice and the execution of the laws, . . 553
to frame writs, award judgments, and have all
other necessary powers, 5G5, 50G
may appoint persons to perform duties of attor-
ney-general or district-attorney in case
of absence, 130
may make rules for various purposes, 50G
concerning changes in forms of writs, ... 622
for settling truth of exceptions in certain
cases, 507
may approve or alter rules of courts of insol-
vency, 5S2
may set aside verdicts and order new trials, , . 560
may enter judgment as of any day of a former
term, 56?
may allow amendments, pass interlocutory or-
ders out of court, &c., 600
may appoint all necessary officers, 56S
SUPREME JUDICIAL COURT — cojj«H««f.
officers attending, payment of, 558
accounts for expenses of, how audited and
paid, 507
may establish seal, 555
may be adjourned by order of judge, 018
how adjourned in absence of judge, and notice
tliereof given, 568
exceptions, how taken, examined, allowed, and
entered, 56G, 567
Bitting in Barnstable county to have jurisdiction
in Dukes county, 55c, 557
writs and processes of, may bo entered at ad-
journed terms, 622
orders and decrees respecting cases in superior
court, how entered, 5C3
the words "the court" may mean full court,
or court held by single justice, accord-
ing to context and subject matter, 557, 5i8
JUKISDICTIOX.
In Civil Matteks.
Exclusive, of suits for divorce .and nullity of
marriage, 533,553
of suits on probate bonds, 506
informations of intrusion in certain cases, . 717
Concurrent with superior court, of petitions
for partition, writs of entry to fore-
close mortgages, and certain other
civil actions, 553
suits for redemption of mortgages, .... 714
Of cases removed from superior court by affi-
davit or consent of parties, , , . 553,50'^
how sucli cases are to be entered, 562
Appellate, of cases from superior court in
matters of law apparent on record in
all cases, 553, 500
fi-om commissioners on insolvent estates of
deceased persons, 408
Of cases in equity, (see Equity,) 558
Of cases from probate courts, 575
Ix Crimi>al Cases.
of trial for all capitiU crimes, by full court, four
justices, 553, 554
at law terras or special terms to be held
therefor, 555
in Dukes county to be had in Barnstable
county, 555
exceptions may be taken in such cases, . . 554
if frivolous, may be forthwith overruled,
and judgment entered, 554
if prisoner pleads guilty, single judge may sen-
tence, 553
if he does not plead guilty, may assign counsel
and prepare for trial, 553
after decision upon exceptions, single judge may
pass sentence or take measures for
new trial, 554
Appellate of cases from superior court on
matters of law apparent upon the
record, 553, 563
questions on appeals and exceptions in, from
superior court, how taken, examined,
allowed, and entered, . . . .503,500,567
to be entered on separate docket, 557
to be in order for argument each month
when court is in session, on some day
designated, 557
TERMS.
first day of term, how designated, 507,017
1102
INDEX.
BUPKEME JUDICIAL COTTRT — eontimted.
Jur.Y Tkrms.
times of "holding in the several counties, . . . 556
to be held by one justice, 556
at these terms the court to have and exer-
cise all the powers not expressly re-
served to full court, 556
law terms to be taken to bo jury terras in
Bomo counties and for certain pur-
poses, 556
in Barnstable to have jurisdiction in Dukes
county, 556, 557
two or more sessions may be held at same
term, 567
writs and processes may be entered at ad-
journed term, 022
Law Terms.
when to be held, in counties of Berkshire,
Franklin, Hampden, Hampshire, and
"Worcester, 556
these terms to be taken to be jury terms for
certain purposes, 556
Court for the commonwealth, for all other
counties, at lioston, on tirst ^yedneB-
day in January, and to be adjourned
from time to time throughout the year, 555
by order of judge or agreement of parties,
questions of law from any county may
be entered at this term, 567
question of law, how entered, heard, &c., at
such terms, 557
expenses of, to be audited by court and paid
by commonwealth, 558
FULL COURT, OR COURT OF LAW.
four justices to constitute a quorum, 553
four justices at jury term to have power of, . , 555
writa and processes cognizable by, how sued out
and returnable, 556
to try all capital cases, questions of law on
exceptions, appeals from superior
courts, cases stated by parties, on
special verdicts, and other questions
of law, 553,554
questions of law reserved by single judge, . . , 554
reported by superior court, 554
questions on exception, appeals, and in other
cases for determination of, how en-
tered, 556, 557, 567
case not transferred by such entry, but only the
question, 567
proper papers in such cases to be prepared by
clerks, 557
questions when to be in order for argTiment, . . 557
may hear questions ex parte in certain cases, . 557
or postpone hearings under certain circum-
stances, 557
when questions are not duly entered, adverse
party may complain and have judg-
ment afhrraed, 554, 555
when by mistake questions or comphiint for
non-entry thereof arc not duly en-
tered, court may, within one year, al-
low entry thereof, 555
in such cases, security discharged by omis-
sion, not revived, 555
upon decision of questions of law, may affirm
former judgment with interest, re-
verse the same in wliole or in part, or
make other order, 554
court may award double cost and twelve per
SUPREME JUDICIAL COTTRT — continued
cent, interest when questions are friv-
olous, 554
may vacate judgments iu cases in which excep-
tions are allowed, 554
judgment, how entered of a former term In cases
continued nisi, 557
time of receiving order for such entry to be
noted by clerk, 557
security, not discharged thereby, how long
held, 557
questions in criminal cases to be entered on sep-
arate docket, and proceedings thereon, 557
to be held specially for trial of capital cases
where no law term is established, . . 555
except that cases iu Dukes county are to be
tried in Barnstable county, 555
to be specially convened when no law term is to
be held witliin six months after indict-
ment found, 555
chief justice to take measures to convene ses-
sion in such cases, 555
notice of such special term, how given, .... 555
powers of court at such terms, 555
to determine equity cases on appeal from single
judge, 5G0
upon interlocutory cases, reported by single
judge, 560
may, within one year, allow entry of appeals
from final decrees of single judge in
equity, omitted to be duly entered, , . 560
questions of law in the counties of Berkshire,
Franklin, Hampden, HampAire, and
"Worcester, how entered, and heard in
law terms for those counties, .... 656
how entered at Boston in court for common-
wealth, by consent of parties, or by
order of judge, 567
in all other counties, to be entered and heard in
court for commonwealth at Boston ;
proceedings therein, 557
SU^RETIES.
on bonds given to judge of probate court, to be
inhabitants of this state, Ac, .... 505
may be discharged by probate court, or su-
preme judicial court, upon petition, , 505
to be liable until now bond is given, 505
may have process against principal iu certain
cases, 50G
SUBETIES OP THE PEACE.
what officers authorized to keep the peace and
require sureties for good behavior, . . 827
in what case may be required, in addition to pun-
ishment prescribed by law, &i5
proceedings, in such cases, on breach of recog-
nizance, 845
may be required, without process, of persons
who make an afl'ray, threaten, &c.,
in presence of courts or magistrates, 828
may be required of such as go armed with
a dangerous weapon, having no cause
to fear violence, &c., 829
may be required, on complaint, &c., of those
who threaten to commit an offence
against person or property, 827
have the same autliority to surrender their prin-
cipal as if they were his bail in a civil
action, 829
shall be discharged, upon such surrender, from
liability for subsequent acts of the
principal, 829
person so surrendered may recognize anew. . . 829
INDEX.
1103
SITRETIES OP THE VEACE — continued.
complaint to be made ou oath and subscribed,
before a warrant shall issue, 827
warrant for arresting party complained of,
what to recite, &c., S27
defendant, when brought before a magistrate,
to be heard in his defence, 827
filiallbe discharged, if there be no just cause
of fear, 828
may be required to enter into recognizance,
with sureties, to keep the peace
for a term not more than six
months, 828
shall not be bound over to the next court,
unless he be charged with some other
offence, &c., 828
shall be discharged on complying with or-
der to recognize, 828
shall be committed to jail or house of correc-
tion, &c., if he do not recognize, . . . 828
may be discharged from jail, &c., on giving
the security that was required, .... S2S
may recognize anew, before any justice,
when surrendered by his sureties, , . 829
may be ordered to pay costs of prosecution,
or part thereof, and be committed, un-
til, &c., 828
where no order is made about costs, how
they are to be paid, 828
may appeal from magistrate's order to eu-
perior court, on recognizing as re-
quired 82S
witnesses may be required to recognize to ap-
pear at appellate court, 828
authority of appellate court, in such cases, . . . 828
if appeal be not prosecuted, recognizance to re-
main in force, and stand as security
for costs, 828
penalty of recognizance may be remitted in
part by court, &c., 829
complainant to pay costs if complaint is frivo-
lous, malicious, &c., 828
in such case, to be answerable therefor, as
for his own debt, 828
SXTRGEOWS. (See Physicians and Surgeons.)
duties, exemptions, &c., of, 109, 193, 1!J5, GSO, S50, 870
SUBRENDER.
of principal by bail, (H3, 644
by sureties in recognizances for poor debt-
ors arrested, &c., G41
SURVEY OF COAST, (see Corts^ 5urr63/j,. 45, 46
SITRVEYORS OP HIGHrWAYS.
to be chosen at annual town meeting, IGO
to be sworn, 161
penalty for refusing to serve, , . 165
not obliged to serve oftener than once in three
years, 165
penalty on, for neglect of duty, 105
liable to indictment for defective liighways, . . 165
to town for amount of fines, &c., imposed
for defective ways, , 165
limits of, to be assigned by selectmen, 245
list of highway taxes to be given to, by as-
sessors, 245
to give notice to persons taxed, 245
to expend in repairs money received for high-
way taxes, 245
may remove obstructions in highways, . , 245, 246
not to remove fences, &c., set up to prevent
spread of contagious disease, .... 246
not to turn watercourses without approbation
of selectmen, 246
SDTclVEYORS OP HIGH"WAYS-cojir;jmerf.
may make contracts for making or repairing
ways, by vote of to\vn, 246
may be empowered by towns to collect liigh-
way taxes, 246
may employ persons to make repairs to amount
of ten dollars, in case of deficiency, . 246
if towns neglect to raise money, ma'y repair
highways at town's expense, with
consent of selectmen, 246
to expend taxes in succeeding years, in certain
cases, 246
to exhibit tax bills, and render accounts to se-
lectmen, under penalty, 246, 247
to render to assessors, at expiration of terra,
list of persons who have not paid
highway tax, 247
to pay over surplus of money to town treas-
urer, under penalty, 247
of private ways and bridges, how chosen,
power and duties, 243
penalty for refusal to serve, &c., 248
to collect taxes, Ac, 248
penalty on, forneglect to pay over money, . . . 248
SURVEYORS OP LUMBER. '
one or more to be elected at annual to^vn meet-
ing, 100
to be sworn 101
SURVrVXWG OP ACTIONS AJNTD DEATH
OP PARTIES.
actions which survive, and proceedings upon
death and disabilities of parties, . 6^8-052
what survive by statute, in addition to those
by common law, 444, 643
when sole plaintiff or defendant dies, may be
prosecuted or defended by executor or
administrator, 648
may be entered in such case after decease of
party, 048
executor or administrator may appear volunta-
rily, or may be cited in, 648
citation, how issued, served, and returned, . . . 048
if executor or administrator does not appear,
how judgment shall bo rendered, . . , 648
when one of several plaintiffs dies, action may
proceed by or against the survivor, . 049
when all the phuntiffs or all the defendants die,
action may proceed by or against the
executor or administrator of last sur-
vivor. 049
Trustee process, effect of death of parti^'-*
in, 725, 726
Real actions, if demandant dies, heir or devisee
may prosecute, 649
in case of devisee, if first estate is not a
freehold, the devisee of the first free-
hold estate in possession may pros-
ecute, G19
if there are several demandants, and one
dies, Iieir or devisee may be admitted,
on motion, to j)rosecute ■\ntli sur-
vivor, 049
if the estate of the deceased passes to sur-
viving demandants, or no motion is
made by heir or devisee to come in,
action may proceed, 640
if the tenant dies, the heir or devisee may
appear, or may be cited in, 649
action then to be conducted as if com-
menced against heir or devisee, . . , 049
if there are several tenants, and one dies,
action may proceed against survivor, 6-19
1104
INDEX.
SURVIVING OF ACTION'S, S^Q.—conthmed.
Petition for partition to survive, and heir or
devisee may appear as iu real ac-
tions, 049, CoO
if the estate passes to those who are al-
ready parties, suit may proceed, , , . 050
"When the estate passes to a person who is
not admitted as a party thereto, such
party may be made a defendant by
order of court, 049, 050
By and against executors and adminis-
trators, C51
all actions which survive may be commenced
and prosecuted by and against exec-
utors and administrators, C51
they may voluntarily take upon themselves the
prosecution or defence of actions com-
menced by their deceased, 048, 049, 05!, C52
or may be cited iu, 648, 052
judgment, how entered when they do not ap-
pear, 648
they may apply to county commissioners in
cases where deceased had a right
SURVIVING OF ACTIONS, &0.~ continued.
of application, and did not apply be-
fore his decease, CoC
actual damages ouly to be recovered against
executors and administrators for torts
committed by deceased, 651
proceedings iu actions by and against executors
and administrators, . . . 048, (549, 051, 052
(See JCxccutors and Administrators.)
S"WAMPS.
constnu'lion of roads to, 752,753
S"WEARING. {Sec Profane Swearing.)
puuishmeut for, 819
SWINE.
when taxable, 70
less th:m six months old, exempted from tax-
ation, 75
found going at large, contrary to law, &c., to be
impounded, 185, 166
one exempted from attachment and execu-
tion, 624, 688
SWORN.
word, how construed, 52
T.
TALESMEN.
how returned, and placed on juries for trials, , 6S2
not more than live to be on such jury, . . . 682
how returned on coroner's inquest, 848
in cases respecting highways, 236
TAKPAULIN COVE. *
on Nashauu Island, land at, ceded to United
States, 44
TATJTOG AND BASS.
not to be taken in certain places, by persons
living out of state, &c., 431, 432
TAVEKNS. {See Innholdcrs.)
ki;epers of, to give names of persons taxable
and liable to enrolment, to assessors,
under penalty, 77,91
not to give credit to students, &c., under pen-
alties, 457
TAXATION.
to be by consent of the people, or their repre-
sentatives, 16
of polls, 74,75
all property not expressly exempted, subject to, 74
of real estate to include buildings, &c., .... 74
of personal estate, what to include, 74
property exempted from, 74, 75
of ships and vessels, at home or abroad, ... 74, 77
of money at interest, &c., more than the owner
pays interest for, 74
of public stocks, 74
of stocks iu corporations, &c., in and outof state, 74
of debts due to, morcthan are owed by persons
taxed, 74
TAXATION OF COSTS. {See CoRts.)
provisions respecting, 782
by whom, and notice? to adverse party, 7S2
appeal from taxation by clerk, 782
when appellee may have costs, before appeal is
settled 782
TAXES.
United States, may be laid by Congress, . . 4
bow to be apportiv-Ved, &C., - 2,5
TAXES — continued.
State, may be imposed by general court, ... 18
treasurer to transmit warrants for, to as-
sessors, 77
how to be assessed, 77
when towns liable for, if not assessed, ... 77
deliciency in, without fault of collector, how
eupjilicd, 86
towns liable for, if collector neglects to pay
over, 86
County, estiimitcs for, to be made by county
commissioners, 145, 146
to be apportioned by commissioners accord-
ing to last state valuation, 146
not to be assessed till treasurer has ren-
dered his accounts, &c., 149
how to be assessed, 77
when towns liable for, if not assessed,*. . . 77
deficiency in, without fault of collector,
how supplied, 80
towns liable for, if collector neglects to pay
over, 86
Town, may be voted for certain purposes, . . 158
School district, may be voted by district,
and certified to assessors, 222
Parish., may be voted by qualified voters, . . 202
Watch and fire district, may be voted by
district and certified to assessors, 175, 18\
Bank, how and whore to be paid, 310
treasurer of commonwealth to sue banks
neglecting to pay, 310
1. 'WlIERE AND TO WHOM TO UK ASSESSED.
to be assessed on person whore he designates his
place of residence to be, 75
person refusing to designate, to be assessed
where he is on first day of May, .... 75
not exempted from paying tax in place of
legal domieil, 75
may be assessed on person, applying seven days
before election, 80
INDEX.
1105
TAXES — continued.
On polls, to be assessed on every male in-
liabitaut above age of twenty years, . 74
persons exempted from, 75
to be assessed where au inhabitant first day
of 3Iay, except, &c., 75
of minors, where parents, &c., reside, ... 75
of minors without parents, &c.,in st^ite, as
if of ngc, 75
of adults under guardianship, assessed to
guardian wliere taxed for his o^vn poll, 75
to bo one sixth part of sum to be raised, . . 73
not to exceed one dollar and fifty cents, on
one person, exclusive of highway
taxes, 78
On real estate, in place where it lies, to owner
&c., on first of May, 75
mortgagor deemed owner till mortgagee
takes possession, 75
if paid by tenant, may be recovered of land-
lord, unless, Ac., 75
undivided, of person deceased, to heirs, &c.,
without designating names, 75
each heir, &c., liable for whole tax, mth
right to contribution, 75
of person deceased, title to which is in dis-
pute, to estate of such person, .... 75
held as ministerial fund, to treasurer of
society in place where it lies, 70
On personal estate, to owner in place where
an inhabitant on first day of May, ... 75
except
Ist, goods and stock in trade (except vessels
owned by copartnership) in places other
than whore owners reside, 75, 7r"
2d, machinery for manufacturing, 76
value of real estJite and macliinery to be de-
ducted before assessing stockholders for
shares in corporation, 70
3d, Iiorses, neat cattle, &c., kept throughout
tlie year in places other than where
owners reside, and liorses in stages, , , 70
4th, property of persons under guardianship, . 70
5th, property held in trust, 76
Gth, property deposited to accumulate, .... 70
7tji, property of deceased persons, 76
lield as a ministcriui fund, to be assessed to
treasurer of society, in place wlicre its
meetings are held, 70
mortgaged or pledged, to the party in posses-
sion, 70
of copartners, to be taxed jointly where their
business is, and each partner liable for
whole tax, 76, 77
ships, &c., of copartners to the several part-
ners, in their places of residence, . ... 77
School taxes, on personal estate and on all
lands, if occupied by owner, in district
where he lives, 223
on land, not improved by owner, in district
where it lies, 223
on real estate of manufacturing corpora-
tions, in district where situated, . . . 223
on land of non-rcsidouts, in districts where
assessors determine, 223
all land of a nou-residcut, in the same district, 223
Parish taxes, in owner's parish, wherever
estate may be, 202
Highway taxes, on polls and estates as other
town taxes, 245
"Watch and fire district taxes, on prop-
erty within the districts, 175, 181
93 139
T AXES — continued.
2. now TO BE ASSESSED.
state, county, &c., to be assessed by assessors, , 77
penalty on assessors for neglect in assessing, . 77
if assessors neglect, county commissioners to
appoint persons to assess, 77
such persons to be sworn, and liable to same
penalty as assessors, 77
state and county, when towns liable for, if not
assessed, 77
keepers of boarding-houses, &c., to give names
of persons taxable to assessors, under
penalty, 77
assessors to give notice to inhabitants to bring
in lists of polls and property, 77
such lists to be under oath, and to be re-
ceived as true, unless, &c., 77
to make fiiir cash valuation of all taxable
property, 77
penalties for agreeing to asKCssment on limited
amount, .^c, with view to residence, 77, 78
assessors to estimate value of property, when
lists are not brought iu, 78
such estimate to be entered in valuation, and be
conclusive, unless, &c., 78
state, county, and town may be included in one
assessment, 78
city and county, iu Boston, 78
one sixth to be assessed on polls, and remainder
on property, 78
five per cent, may be added for convenience of ap-
portionment, 78
list of valuation and assessment to be deposited
in assessors' office for public inspec-
tion, 78
contents of such list, 78
to be sworn to by assessors, under penalty, 79
form of tax list for collectors, 79
hst to be committed with warrant for collection,
to collector, constable, or sheriiT, ... 79
contents and form of warrant, 79
if warrant lost, new to be issued, 79
assessors responsible only for fidelity in the as-
sessment of certain taxes, 80
In watch and fixe districts, how assessed,
175, 181
In parishes, &c., how assessed, 202
In school districts, how assessed, 223
Highway taxes, how assessed, 245
3. Discount axd Abatemext of.
towns, &c., may allow discount on, for punctual
payment, 79
rates of discount allowed to be posted up by
assessors, 79
abatement may be made by assessors, to parties
overtaxed, upon application, 79
costs accruing before abatement to be paid by
person applying, 79
if assessors refuse, party may make complaint to
county commissioners, 79
no abatement, unless party has filed with assess-
ors a list, under oath, of his taxable
estate, 79, 80
nor unless he makes application within six
months after date of tax bill, 80
if tax has been paid, amount of abatement to be
paid out of town treasury, &c., .... 80
persons, whose taxi's are abated, entitled to cer-
tificate thereof, 80
certificate to be exhibited to collector, Ac, . 81
Abatement, &c., of parish taxes, 202
1106
INDEX,
TAS:ES~ continued.
Abatement of school district taxes, ... 224
Of watch and fire district taxes, . 175, ISl
4. Collection of.
taxes to be collected by collector, &c., according
to warrant, 81
collection to be completed by collector tbough
his term of office expires, unless re-
moved, 81
in cases of doubtful credit, taxes may be collected
forthwith, &c., 81
person claiming- abatement, to exhibit to col-
lector certilicate thereof, , 81
and to pay costs accruing before exhibiting^
certificate, 81
errors in names not to defeat collection, S2
payment to be demanded before distraining-
goods, ; 81
if payment is refused, taxes may be levied by
distress and sale of goods, 82
what property exempted from distress, .... 82
goods distrained, to be kept four days, and sold
by auction within seven days, .... S2
notice to be posted at least forty-eight hours be-
fore sale, 82
sale maybe adjourned once, not exceeding three
days, 82
seizure and sale of shares in corporations, how to
be made, 82
surplus of sale to be returned to owner, .... S2
person refusing payment fourteen days, may
be committed to prison, if sufficient
goods are not found, 82
collector to give jailer a copy of warrant and
statement of taxes, &c., 82
persons committed, if unable to pay, may bo dis-
charged as if committed on execution, 82
notice, in such case, to be given to assessors or
collector, &e., 82
if discharged, collector to be liable for tax and
charges, unless, &c., 82, S3
collectors may demand aid if resisted, 83
proceedings against person removing from col-
lector's precinct, without paying, ... 83
In what cases coUector'raay sue for taxes, .... 83
Heal estate, taxes on, a lien for two years, . 83
may be sold fourteen days after demand, , , 83
and after two years, if it has not been alien-
ated, S3
taxes reassessed on, to be a lien, unless es-
tate is sold between first and second
assessments, 83
if occupant of, who is not owner, is taxed
therefor, tax may be levied within
nine months on produce, &c., of such
estate, 83
when demajid in such case need not be made, 83
when tax must be demanded of resident
mortgagee, before sale, 83
when to be demanded of attorney of mort-
gagee or non-resident owner, ... 83, 84
sale not to be advertised till two months
after such demand, 64
affidavit of collector, &c., to be evidence of
demand, , S4
Bale of, to be advertised in newspaper, and
posted three weeks, 84
advertisement to state names of owners,
amount of taxes, &c., 84
and to give old and new name of town,
when changed within three years, . . 84
TA:S.'ES — continued.
affidavit by disinterested person to bo evi-
dence of advertisement, &c., if re-
corded, 8J
sale to be made by auction of so much as
will pay taxes, &c., of rents and profits
for a limited time, or of whole estate, 84
sale may be adjourned from day to day, not
exceeding seven days, 84
notice of such adjournment, how given, . , 84
collector to give deed to buyer, of rents
&c., or of estate, ■ 84
deed, what to contain, and when to be re-
corded, 84,85
owner and heirs, &c., when may redeem, . . 85
terms of redemption, 85
any person liaving lawful title may redeem
witliin two years after actual notice
of sale, in certain cases, 86
may be redeemed, when purchaser, cannot
be found, upon payment to town treas-
urer, &:c., 85
evidence of search for purchaser, how per-
petuated, 85
certificate of payment to be given by treas-
urer and recorded, 86
mortgagee may pay taxes on, before sale, in
certain cases, SB
shall pay, upon taking possession under
his mortgage, &c., 85
entitled to receipt for such taxes paid, &c., 8G
in cases of sale of, for taxes, supreme
court to have equity powers, Ac, . . 86
Sheriff, &g., when tax list and warrant are
committed to him, to post notice, &c., 86
to make no distress till after thirty days from
such notice, 80
fees for collecting, &c., 86
Town treasurer, when appointed collector,
may issue warrant for collection to
sheriff, &c., 8G
Collector, to exhibit accounts to selectmen,
&c., every tu-o months, if required,
under penalty, 86
to be crcfhted with abatements, &c., .... 86
deficiency in state or county tax, witliout de-
fiiult of collector, how supplied, ... 86
if collector neglects to pay state :md county
tax, town liable therefor, 86
remedy of to^vn in such case, 87
may be removed by selectmen for insanity,
&c., 87
if collector dies, or is removed, selectmen
may appoint temporary collector, . . 87
in case of death of collector, tax list to bo
delivered to selectmen, ^7
compensation of collectors, 87
Highway taxes, collected like other town
taxes, 245
may be paid in labor, &c., 245
In watch and fire districts, collected like
town taxes, 175, 181
In school districts, 223, 224
5. Re-assessment.
taxes, If invalid by reason of error, &c., except
poll tax, may be re-assessed, 80
6. Illegal Assessment.
if illegally assessed, to be void only to extent of
illegal assessment, 80, 87
no sale, contract, or levy to be avoided by
irregularity, 87
INDEX.
1107
T AXE S — CO n t i lined.
7. IlECOVEUY OF Taxes.
not to bo recovered b;ick, unless paid after
arrest or levy, or under protest, ... 87
TEACHERS.
in public schools, selection, qualiHcationB, &c.,
of, 21S
{See Schools.)
TEACHERS' ASSOCIATIONS.
in counties, when entitled to receive money
from state, 212
money to be paid on certificate, under oath, of
president and secretary of, 212
TEACHERS' INSTITUTES.
to be establislieil liy board of education, on ap-
pliwtion of fifty teachers, 211
length of sessions of, to be determined by board
of education, 211
expensi:'3 of, bow paid, Ac., 211,212
TELEGRAPH COMPANTES.
Bubject to provisions of General Statutes, . . . 372
lines of, may be constructed on roads, and
across waters, but not so as to incom-
mode the public use, 372, 373
place, height, &c., of, to be regulated by mayor
and aldermen, or selectmen, Ac., . . . 373
Bpecifications and decisions of mayor, &c., to
be recorded in city or town records, . 373
Owners of laud injured by, may have damages
assessed by mayor and aldermen, or
selectmen, &c., 373
any person aggrieved by such assessment may
have his damages assessed by a
jury, 373
costs on assessment of such damages, 373
compensation of mayor and aldermen, and se-
lectmen, for services, .373
not to commence construction of line, until
three fourths of stock subscribed for,
and cortifleate filed with secretary, . . 373
debts of, not to exceed one half of capital
stock, &c., 373
president and treasurer liable, in case of wilful
non-compliance with act concerning, . 373
to transmit despatches for any coinpauy or in-
dividual, on payment of charges, un-
der penalty, 373
responsible for injury to person or property by
means of their posts, wires, &c., , . . 373
if erected on highway or town way, damages
paid by city or town to be reimbursed
by company, 373
to make annual returns to Secretary of common-
wealth, 373, 374
unincorporated companies subject to the liabil-
ities and governed by same provisions
of law as corporations, 374
no easement obt:iined by having telegraph
posts, &c., 374
penalty for injuring lines, wires, posts, ic, of, 374
TEN" POUND ISLAND.
ceded to United States lor lighthouse, 44
TENANTS.
joint and in common, may join in suit for recov-
ery of premises, or may sue sep-
arately, 692
under written lease, how estate of may be ter-
minated by notice to quit for non-
payment of rent, 472
forfeit their leases and tenancy, by using prem-
ises for certain nuisances and unlaw-
ful purposes, 454
TENANTS — continued.
remedies against by action, 707, 70S
{See Forcible Entry and Detainer.)
liable for three times actual damages, if they
commit waste, knowing that an action
is pending for recovery of the lands, 709
in dower, by the curtesy, for life, or years, or
in common, how liable for waste, 70S-710
paying rent for real estate, if taxed therefor,
may recover of landlord, 75
At will, how estate of may be terminated, . , 472
At sufferance, liable for rent, 471
sucli rent, how recovered, 471
For years or for life, not to forfeit tlieir es-
tates by conveyance purporting to
grant greater estate, 4CG
In tail, 400
{See Estate Tail.)
TENANTS IN COMMON.
how coustituted by couveyaucc or devise, . 4GG, 407
lands of, how taken on execution, and with what
clTect, 517,518
upon dissolution of corporation owning real
estate, shareholders to be, 375
suits between, may be brouglit in supreme court
in equity, and receiver appointed, , , 559
may sue severally, or all join in actions for land, 692
for years, when may have partition of lands, . 699
penalty on, for committing waste while proceed-
ings Jbr partition are pending, .... 709
liable to each other for injury to estate in their
alternate occupancy, after partition, . 701
TENDER.
only gold and silver coin to be made a, 5
Of payment may be made after money is due
and payable, 071
may be made with the costs, to plaintiff or
his attorney after action brought, and
within four days before return day, . 671
if accepted, plaintiff or attorney to certify
fact to officer, G71
not valid unless defendant pays officer all
further costs of service after tender
and before notice, 671
if not accepted, defendant may avail himself
tliereol' upon bringing mouey into
court. 6?7
may be alleged in answer, 671
may be made for damages by United States
coast survey, 46
of gold by banks, not legal unless it is
weighed with weights sealed by state
treasurer, &c., 310
respondent in complaint for flowage may
tender damages he thinks due, &c., . . 75S
if not accepted, and no greater sura recov-
ered, respondent to have costs, .... 75S
if accepted, complainant to have judgment
tliercon, 758
Of judgment, {see Offer of Judgment ,) . . . , 660
In case of casual and involuntary tres-
pass, 700, 710
By mortgagor, or those claiming under him
of amount due on mortgage, before
or after entry, 713-715
TERM PEES.
in supremo jutUcial court, and superior court, . 783
whf-n only one to be allowed, 7S3
TERMS FOR YEARS.
for one huntired years while fifty remain unex-
pired, to be regarded as real estate
for certain purposes, 471
1108
INDEX.
TERMS FOR Y^ARS — conitnued.
to be levied on ia such case as real estate, . GOO
other terms to be levied oa as personal estate,
except that debtor shall have four-
teen days' notice of sale, 690
widow having dower in, Dablc for part of rent, 471
devises of, before June 1, 1S34, not subject to
these provisions, 471
tenant of part of land liable for proportion of
rent, .tc, 471
rent for, how recovered, &c., . ; 471
held by ton-auts in common, Iiow partitioned, . . 099
TERRITORIAL LIMITS OP THE COM-
MO]Nr"WEALTH.
hou- far to extend from sea shore, 43
TESTAMENTARY GUARDIAN, (see Gtiar-
'^^"'0 543
TESTAMEINTTART TRUSTEE, (see Tims-
tee,) 500, 501
TESTIMONY.
(^See Kridence, VcpositionSt JVitnesses.)
THACHER'S ISLAND.
in Essex county, lighthouse on, ceded to United
States, 44
THANKSGIVING DAY.
legislature not to sit for ordinary business, and
public offices to be closed, 49
courts not to be opened except, &c., .... G17, 618
bills of exchange, iSrc, maturing on, when pay-
able, &c., 293
THEATRICAL EXHIBITIONS.
public shows, &c., may be licensed by select-
men, &c., 4G3
penalty for setting up, &e., without license, . . 4G3
for setting up, &c., without license, at which
intoxicating liquors are sold, .... 464
license for sale of intoxicating liquors at, pro-
liibited, 464
persons setting up, contrary to law, to be bound
over to superior court, and furnish
sureties of the peace, &c., 4G4
THREATENING.
harm to members of legislature for officijil acts,
&c., how punishable, 22
in presence of court, &c., to kill or beat, &c., a
cause for ordering party to recognize
to keep the peace, S28
speeches, utterers of, may be stayed, and ar-
rested, by order of justice, 608
withintent to extort money, 793
or to compel one to do an act against his
will, 793
THREE CARD MONTE.
fraudulently obtaining property by, how pun-
ished, 570, 009, 802
TIMBER.
carried away by floods, may be taken by owner
on paying, Jtc, 424
when to be property of o^\'uer of land of,
where found, 424
floatinglogs, &c., penalty and liability for de-
stroying owner's marks on, 424
possession of, with marks cut out, presiunp-
tive evidence of guilt, 424
penalty for unlawful conversion of, in rivers,
&c., 424
special provisions respecting, in Connecticut
River, 424
TINKER'S ISLAND.
part of, ceded to United States, 44
TISBURY.
land in, ceded to United States, 45
TITLES.
to real estate, provisions for compelling pereonB
interested adversely to parties in pos-
session to bring action, C96
TODD SCHOOL FUND.
how applied, &c., 213
TOLL.
for grinding grain, not to exceed one sixteenth
part, 761
punishment for evading or attemptmg to evade, 805
TOLL BRIDGE.
punishment for wilful, &c., injury to, 80-1
TOOLS.
for forging and counterfeiting to be seized and
destroyed, gll
when exempt from attachment, and levy on
execution, 624, GS8
TOMBS, MONUMENTS, &c.
wilfully defacing, or removing, how punished,
820, 82]
maliciously disturbing contents of, 822
exempted from taxation, attachment, and execu-
tion, 74,688
when exempt from attachment and levy on ex-
ecution, 624, 088
TONGUES AN^D SOUNDS.
provisions for inspecting, 261
TORT.
action of, one of three divisions of personal ac-
tions, 653
includes trespass, trespass on the case, trover,
and action for penalties, 653
forms of declarations in, OGO
suits in equity may be brought by action of, , . 559
TORTURING.
horses, oxen, and other animals, how pun-
ished, S22
TO"WN.
word, how construed, 51
TOWNS.
to continue bodies corporate, 157
Boundary lines of, to remain as established, , 157
to be perambulated every five years by
selectmen, &c., of each town, 157
marks of, to be renewed, and proceedings
recorded, 157
notice of meeting to perambulate, how to be
given, 157
penalty for neglect to give notice or to at-
tend, 157
monuments to be erected at every angle ex-
cept, &c., 158
monuments to be of stone, at least four feet
high, &c., 158
perambulation of, in towns adjoining other
states, 158
penalty on selectmen for not erecting monu-
ments, &c., 158
may sue and be sued, &c., 158
actions by and against, in what county to be
brought, 621
in actions against, process how served, and
how long before return day, . . . G22, C23
certain fines, &c., imposed on, how and to
wliose use recovered, 165
may hold and convey real estate, 158
may hold and dispose of personal property, for
public uses, 158
may make orders for disposal of property, . , . 158
may make certain contracts, 158
may grant money for schools, support of poor,
highways, town, liistories, burial-
INDEX.
1109
TO'WNS — continued.
grounds, and all other nocesBary town
charges, 15S
may appropriate money for support, &c., of pub-
lic libraries, 208
how restrained from illegal appropriations of
money, &e., IGo
may make by-laws, and annex penalties thereto, 15S
how such penalties recovered, and jurisdic-
tion in such cases, 155, GOS
by-laws to be approved by the superior
court, 159
duties imposed in, how to be performed, , . J59
buiding on. all persons coming withiu limits
ofto^vn, . . .' ]5i)
to be published in newspaper in county, . . lo'J
to provide book-case for books, &c., received
from state, 159
penalty for neglect, 159
to provide fire-proof safes for preservation of
records, &c., 19S
recognizances by, how to be entered into, ... 169
when liable for state and county taxes not as-
sesBcd, 7?
may, at annual meeting, allow discount on
taxes, 79
liability of, if collector neglects to pay state or
county taxes, 86
remedy of, in such case, 87
to furnish ammunition, &c., for militia, under
penalty, when required by commander-
in-chief, 92
may retain possession of certain field-pieces, . . 102
penalty on, for false c<;rtificate of selectmen con-
cerning armories, 101
for neglect of selectmen in providing car-
riages, &c., for militia iu case of war,
&c., 110
officers of, what and how to be chosen at annual
meeting, 100,161,217
penalty for neglect to choose selectmen or as-
sessors, IGl
may give collectors certain powers of treasurer,
when collectors of taxes, 1G5
maj' make rules concerning the registration of
bii-ths, marriages, and deatlis, .... 170
containing more than ten thousand inhabitants,
may appoint registrars to record
births, &e., 170
to establish schooly, 215,210
two adjacent, haviug less than five hundred
families each, may establish high
school, 210
may establish, &c., schools lor persons over fif-
tt^en years of age, 216
to raise money for schools, under penalty, . . . 217
may hold property in trust for support of
schools, 15S
to choose school committee, &c., under penalty, 217
may increase or diminish number of committee, 218
to supply books to scholars when change is
made, 218,219
may require school committee to appoint super-
intendent of schools, 219
not districted, to maintain school-houses, , . , 219
may determine location of school-houses, . 219,220
may establish school districts, 221
but not to be districted anew oftcner than
ouce in teu years, 221
may abolish school districts, 221
to vote once iu three years upon question of
abolishing districts, 221
93*
TOWNS — confimtcd.
to choose prudential committee for each district,
or authorize district to choose, . . 221,223
may determine tliat prudential committees con-
tract with teachers, 218,222
maj"! provide school-houses in district at com-
mon expense, 223
may riiise money in school districts if districts
refuse, 224
may empower selectmen, &c., to take charge of
such money, 224
penalties on, for neglect of school committee to
trausinit returns and report to secre-
tary of board of education, 227
may withliuld compensation from school
committee in such cases, 227, 228
liable to damages for unlawful exclusion of
child Jrom school, 229
may make by-laws, &c., respecting truancy,
subject to approval of superior court, 230
may appoint truant officers, 230
may provide or discontinue almshouses and
workliouses, 170, 171, 173
not to erect thom iu other places without con-
sent of such places, 171
may choose directors of almshouse, 171
any number of, may provide and maintain alms-
house jointly, 171,172
directors of such joint almshouses, how
chosen, 171
may establish a watch, 173
to maintiun pounds, and appoint pound-keepers, 185
may choose boards of health, or health officer, . 18S
liability of, for impressment of houses, &c., for
securing infected articles, &a, .... 191
to provide means of vaccination to those uuablo
topay,&c., 191,192
may establish quarantine grounds, 192
t^vo or more may estabhsh same jointly, . . , . 192
may establish hospitals for persons haviug dis-
ease dangerous to public health, , 192, 193
fines under laws relating to health to inure to
use of town, 193
to provide suitable places for burial-grounds, . 196
burial-grouuds not to be established in, without
their consent, 196
liable to make specific repairs of highways or-
dered by county commissioners, . . . 233
neglecting to make, &c., highway located, &c.,
by county commissioners, to pay ex-
pense of making to county, 238
warraut may be issued against, in such
cases, by county commissiouers, . . , 238
may discontinue town or private ways, at meet-
ing called for that purpose, 239
to pay damages occasioned by laying out town
way, 240
liability of, for neglect to complete town or pri-
vate way laid out by commissiouers, 240,241
not to discontinue town ways, &c., laid out by
commissioners, witliin two years, . . 241
not to lay out again within two years tOAvn
ways, &c., discontinued by commis-
sioners, 241
not to contest legality of way laid out, accepted
and recorded, 242
liability of, if selectmen neglect to fix perma-
nent stone bounds at angles of ways
in certain cases, 244
to keep in repiiir public ways and bridges, . . . 245
to vote sums to be paid in labor and materials
for repair of highways, &c., 245
1110
INDEX.
TOWITS — coniimial.
may raise money necessary for repair of high-
ways, &c., ° . 243
may authorize surveyors of hig-Uways to con-
tract for repair of ways, &c., 240
liable to compensate abutters on highways, ttc,
for d;unagcs occasioned by repairs, . . 247
when liable for damages occasioned by defects
in Iiiglnvays, 247
penalty on, for loss of life by defect in highway, 247
for neglect to keep ways in repair, &c., . . 24
to erect and maintain guide posts on highways,
&c., ••»..,,,,,,, 249
to determine places for, and maintaui guide
posts, under penalty, 240
when may construct sidewalks, 250
may make by-laws to prevent pasturiugof cattle,
<S:c., in highways, &c., 250
Buch by-laws not to affect rights of abut/
ters on way adjoining their land, . . . 250
may make by-laws to regulate driving over
bridges within their limits, 250
may plant shade trees in highways, &c., and ap-
propriate money therefor, 25i
to maintain ferries in certain cases, 253
penalty on, for neglect in such case, .... 253
may regulate sale and moasuromeut of wood,
*■:■' 278
may authorize selectmen to regulate hawking,
&C-, of certain articles by minors, . . 281
may estabUsb by-laws, with penalties, regulat-
ing the weighing of lighters, &c., em-
ployed in transporting stone, &c., 291, 292
may use water of aqueduct corporations, for ex-
tinguishment of fires, 375,370
to relieve and support the poor having legal set-
tlement therein, 390, 392
liability of, when paupers are relieved, &c., by
other places or by individuals, .... 393
may send state paupers to state almshouses,
*<= 401
to proviJe for state paupers, when state alms-
houses are full, at expense of state, . 402
liable for support of paupers in state alms-
houses, who have a legal settlement
in such towns, 402, 403
not to scud Umatics, who are dangerous, to state
almshouses 401
may regulate the storage and sale of gunpow-
''«'■. &c, 4U0, 401
may regulate the storage and sale of camphene,
&<= 401
liability of, for damages done by dogs to sheep,
*f-i 402
may recover of owners of dogs in such cases, . 402
may make by-laws for regulation of licensing
and restraining dogs, 4(33
TO^WU CLEKK.
to be chosen at annual meeting, 160
to be chosen by ballot, 151
to be sworn forthwith, if present, 100
to record all votes at town meetings, 102
to administer oaths to town olScers, and make
record thereof, I(j2
to record oaths of ollicc of which certificates are
fil^-<i. 102
when not present at town nicetiug, clerk pro
tempore to be chosen, 102
such clerk to be sworn, and liable to same
penalties as clerks, for neglect of duty, 162
when may be appointed by selectmen, 162
to obtain from secretary envelopes for use of
TOWIV CJJEnK -ctmilmied.
voters, and keep them subject to or-
der of selectmen, 53
to record number of votes, persons voted forj
&c., at elections, 59
to make rcturu of votes sealed up for national,
stiite, district, and certain county offi-
cers, within ten days, to secretary. . 69, 69
for county treasurer and register of deeds to
county commissioners, 59
for county commissioners, within seven
days, to clerks of courts, 59
or to deliver such returns, within three days, to
sheriir, 59
penalty on, for failure to make return of votes, . 61
duties of, at elections in towns composing part
of a representative district 05,68
clerks in such district to meet and ascer-
tain result of election, record votes,
*<'■' 05
placeofmeetiog, by whom designated, . . . 60
penalties for neglect, and signing false cer-
tificates of election, 65
vacancy in ofiico of, at election of representa-
tives, how filled 60
compensation for services at election of repre-
sentatives, Q^
duty of, respecting return of votes for represen-
tatives in congress, 68
penalty for neglect, o9
to trmsmit returns of enrolled militia to adju-
tant-general, 91
to preside at election of moderator of town
meeting, i6q
to give notice to town officers elected, i-c, to be
sworn, 161
to note time of flung bonds by constables, ... 164
to record and index facts concerning births,
mai-riages, and deaths, 108
form of record, 108,169
to give certificate of record of death to under-
taker, &c., , 169
to transmit certified copy of record of births,
&c., to secretary, annually, 169
record of, concerning births, &c., to be prima fa-
cie evidence in legal proceedings, . . 169
certificate of, to be evidence of such record, 169
fees for services in making record of births,
*<=•' 168
penalties on, for neglect, &c., in regard to regis-
ti''ition, 169
to record proceedings .at organization of propri-
etors of meeting-houses, 203
to deliver school registers, &c., to school com-
mittees, 220
to transmit returns and report of school com-
mittee to secretary of board of educa-
tion, in certain cases, 227
to distribute reports of board of education, &c.,
to school committee, &c., 227
to record description of location of highway or
town way by county commissioners
or selectmen, 234 241
to record notice of lost goods and stray beasts,
in book kept for that purpose, .... 425
to keep record of appointment, Ac, of agents to
sell intoxicating liquor 441
to issue licenses lor dogs, 401
to post list of dogs licensed, and furnish copy
thereof to police, &c., 401
to issue certificates of intentions of marriage, to
parties, 529
INDEX.
nil
TOWK" CTiS'RK — rnufinued.
penalty on, for issulu;^ such certificates to mi-
nors in certain cases, 629
may require affidavit of age of parties applying
for certificate, 559
may administer oaths required in probate mat^
tcrs, 577
doty and foca of, as to entering attachments of
certain personal property, ...... 627
duty and liability as to drawing jurors, . . G81-CS.3
fees of, for ecrt.ilu oflidal services, 7S7
TCWW MEETINGS.
annual, to be held iu February, March, or April, 159
other, when selectmen order, 159
may be adjourned from time to time, 159
qualilications of voters at, in town affairs, . , , 159
to be held in pursuance of warrant under select-
men's Iianda, 159
warrant for, how to be directed, 159,100
to express time, place, and purposes of
meeting, 159
to contain subjects which ten or more voters
in writiug request, 159
may include two or more distinct meetings, 159
when may be signed by one selectman. &c., 101
how to be notified, 159, 100
may be called by minority of selectmen, if ma-
jority are dead, &c., IGO
may be called by justice if selectmen unreasona-
bly refuse 159, 100
nothing to be done at, unless subject is inserted
iu the warrant, 159
disorderly conduct at, how punished, 100
no person to si^eak at, without leave of modera-
tor, 100
how called, if town fails to elect full board of
selectmen, &c., IGl
when may be called for drawing jurors, . . . . 6S1
TOWN" OFFICERS.
what, to be chosen at annual meeting, . . . 100, 101
what, to be sworn, 100, 101
if not sworn by moderator, to be summoned
for that purpose by town clerk, ... 101
what, to be chosen by ballot, 101
what, to bo appointed by selectmen, 101
penalty on, for not taking oath of office, . , lUl, 102
for neglect of duty respecting qualification
of voters, 57
at elections, 01, 6G, 69
duties of, at election of electors of president, &c., 69
removing from town, vacate their offices, ... 102
vacancy in office of, may be filled at any legal
meeting, 102
not obliged to serve in same office two years
successively, 102
certain persons not obliged to serve as consta-
ble, 102
certain fines, &c., imposed on, how and to
whose use recovered, 105
embezzlement by, Iiow punished, 800
TO*WN TREASTXRER.
to be chosen at annual town meeting, 160
to bo chosen by ballot, 101
to be sworn, 101
to give bond with sureties satisfactory to select-
men 103
vacancy in office of, how filled, 102
to have charge of money belonging to town, . . 103
to pay over and account for money according to
order of town, &c., 163
may sue on bonds, &c., given to him or his pred-
ecessors, 163
TOWN TREASURER — C(?«(znwMf.
to prosecute for forfeitures which Inure to town,
&c., 163
for trespasses on toivn property, 163
may prosecute for trespasses on building owned
by town and county, 163
may be appointed collector of taxes, .... 86, 163
may appoint deputy collectors, 163
may Usue warrant to sherifl", &c., in such
case, SO, 103
duty of, respecting redemption of real estato
sold for non-payment of taxes, ... 85
to prosecute persons refusing to lake oath and
serve as constable, 163
to render account of i-eceipts and payments an-
nually to town, 163
compensation of, 163
duties of, &c., concerning money raised in watch
districts, 175
concerning money raised in Cre districts, . . 181
concerning money raised in school districts, 224
on notice from school committee, Sec, to pros-
ecute parents, &c,, for neglect to send
children to school, 228
penalty for neglect to prosecute, 228
may sue for surplus money in hands of survey-
ors of highways, 247
duties of, in regard to standard weights, meas-
ures, and balances, 2S4, 285
to keep separate account of sums received for
dog licenses, 461
duties of, in regard to payment of damages occa-
sioned by dogs, &c., 402
may commence suits on liabilities made with
predecessor, or prosecute those com-
menced by predecessor, 050
TOWN WAYS AJ!fD PRIVATE WAYS.
provisions concerning laying out, &c., . . .239-241
( See Jlighways.)
TRADE MARKS.
of another not to be used ^rithout consent, un-
der penalty, 298
supreme judicial court may restrain use of, in
violation of law, 298
forging or counterfeiting, how punished, , , . , 802
selling goods knowingly with such marks,
and not informing purchaser, .... 802
TRADES, OFFENSIVE.
provisions respectiug, 193, 194
(.Sfe Offensive Trades.)
TRAINING FIEIiD.
when fences, buildings, &c., to be deemed
boundaries of, 251
TRAJSrSITORY ACTIONS.
whereto be brought, itc, 620,621
{See Actions.)
TRAVEL.
of members of the general court to be paid from
state treasury, 21
of commissioners, &c., expenses of, not to ex-
ceed three and a half cents a mile, . . 141
costs allowed for, in any com*t, 783
but for not over eighty miles out and back, 783
unless party actually travels more than
forty miles to attend the court, .... 783
for what distance to be allowed to corpora-
tions, 783
of justices of the peace, 784
of sheriffs and constables, 785, 786
of jurors, witnesses, &c., 780
commonwealth to tax no costs for, on scire fa-
cias against bail, 835
1112
INDEX.
TBEASON.
no man to be declared ^ilty of, by the legis-
lature, 16
not a bailable olFcuce, 830
how defined and punished, 7, 71)0
penalty lor couccaliugf, 7U0
misprieion of, 7'.t0
two -n-itnesscs required to convict of, .tc, . . . 7H1
attamdcr of, not to work forfeiture, Ac., .... 7
Petit, distinction l^etween and murder abolished, 791
how prosecuted and punished, 7Ul
TREASUREB AND BECEIVEK GEW-
ERAIi.
when, and how chosen, 37, G2
return of rotes for, 5'J, GO
limitation of tenure of oflice, 27
not to hold certain other offices, 30, 33
vacancy in office of, how filled, 32, 37
qualifications of, 37
neglecting' to qualify for ten days, office to be
deemed vacant, 37
bond to, &c., given by, 13G
condition of, 130, 137
to be deposited in secretary's office, .... 137
to be put in suit when ordered by governor
or legislature, 137
may be removed by governor, itc, on complaint
of Ruretie.s if he absconds, itc., , . . 137
salary of, 137
may employ two permanent clerks, ...... 137
salaries of permanent clerks, 137
may employ additional clerks, 137
salary of such clerks, 137
to deduct from pay of members of legislature
for unexcused absence, 48
tlerk to certify attendance of members from
their written statements, 48
such statements to be preserved in treas-
urer's office, 48
annual report of, to be made to legislature, . . 138
contents of, 138
may be made in print, 53
to transmit, by sheriffs, warrants for state tax,
to assessors, 77
may recover of town for state tax not assessed, 77
to be commissioner on repairs, Ac, of state house, 134
appointment of v.-atchman of state house sub-
ject to approval of, 133
when may assign mortgages held by state, . , 137
may sell real estate held by state under mort-
gage foreclosed, with approval of gov-
ernor, &c., 137
to stamp all bonds and securities belonging to
the state, 137
not to transfer securities, &e., without written
approval of governor, 137
may assign mortgages, &c., made to predeces-
sors, with approval of governor, ... 137
to transmit, annually, to prosecutUig officer,
account of securities, &c., due, for col-
lection, 137
to have custody of money, &c., received for
lands in Maine, 137
to keep separate account of money, &c., so re-
ceived, 137, 138
how to invest such money, 138
on death, or other vacancy in office of, secretary,
&c., to secure property of state, ... 138
when elected, to give duplicate receipts of prop-
erty, &c., to predecessor, 138
to sign notes for money borrowed in anticipa-
tion of revenue, 139,140
TREASTTRER AND RECEIVER-GEM"-
E'R AJ-i — cojithived.
to make annual report to legislature of expenses
of office, 141
to furnish copies of sheriffs' bond to persons
applying, itc, 151
to invest school luud, with approbation of gov-
ernor, .Vc, 212
with secretary, to apportion income of school
fund among towns, 212
to have custody of standard weights, measures,
&c., 284
to appoint a deputy sealer of weights, &c., . . , 284
to furnish newly incorporated towns with com-
plete sets of standard weights, &c., . 284
form of seals to be used by, and by deputy, in
sealing weights, &c., 285
when authorized, by .act or resolve, to borrow
money, to give notice to president or
cashier of banks of amount required, 309
to equalize amount of demand among the sev-
eral banks, having reference to amount
of obligation of bank to loan and to
amount previously borrowed, . . 309, 310
penalty for refusing to loan, for thirty days
after notice, 310
suits to be instituted by treasurer for recovery
of penalty, 310
banks to furnish statement of amount of capital
and of stock paid in to, 310
tax to be paid to, annually in April and October, 310
to conunence action if bank neglects to pay, . . 310
to seal weights for banks, 310
to hold on deposit, securities deposited by life
insurance companies in certain cases, 330
duties of, concerning agents of foreign insurance
companies, 332
concerningproperty of deceased persons de-
posited in treasury by pubHc adminis-
trators, 487,488
when commonwealth takes possession of
railroad, 367
power and duty of, respecting mortgages to the
state, 717
may receive money due on mortgages, and dis-
charge same, 717
may make cntrj' or bring action to foreclose, . . 717
may commence suits on liabilities made with
predecessors, or prosecute suits al-
ready commenced by predecessors, . C50
TREASURERS.
of corporations, county, city, &c., may com-
mence suits on liabilities to predeces-
sors, and prosecute suits conmienced
by predecessors, 650
TREASURY OF THE COMMON-
"WEALTH. {Sec Finance.)
money to be paid from, only on governor'a war-
rant, except, &c., 24, 139
cash on hand from ordinary revenye, to be car-
ried to account of ordinary revenue at
beginning of year 139
embezzlement by clerks, &c., in, how pun-
ished, 799,800
of United States, money how to be drawn from, 5
TREATIES.
how may bo made, 6
individual states not to make, 5
TREATING.
with intoxicating liquors, forbidden at military
elections, 99
jurors, when cause for new trial, 683
INDEX.
1113
TREBLE COSTS.
how taxed, 7S1
TBEES.
on land of tenant for life, with remamder, &c.,
may be ordered to be cut and sold by
supreme judicial court, 473
comnuasioners to be appointed to superintcud
the cutting and sale of, 479
proceeds of such sale, how to be invested, and
put in care of truBtees, 473
income of, to be paid to tenant for life while
entitled to profits of laud, 473
principal, to bolono^ to remainder-man,
when tenancy for life is terminated, . 473
trustees of such funds may be appointed and
removed by supreme jutlicial court, . 473
to give bond, 473
on laud taken for highwaj's and town ways, own-
er to be allowed tune for removal ol','.i34,2!I
if not removed within time allowed, right to be
deemed reUuquishod, 234,241,242
time for removing may be extended by jury, 237, 342
and by commissioners alter verdict of jury,
&c., 237,238
Shade and ornamental, may be planted in
highways with consent of selectmen,
&c., 251,252
may be planted at public expense in certain
cases, 252
how to be removed, 252
penalty for injuring, 252
liability of owner of beast damaging, . . . . 252
associations for planting, how formed, pow-
ers and privileges of, 378
TRESPASS.
Actions of tort for, substitut'^d for action of, 653
forms in actions for, 667
for breaking and entering plaintiff's close,
to designate place, &c., 654, 655
may be brought, instead of action of waste,
to recover damages suffered for waste
by tenant, 709
in such case how action may be maintained, 709
may be commenced, or if commenced, may
be prosecuted against executors and
administrators, 709
by one joint tenant or tenant in common
for cutting trees or committing waste,
without notice, or pending petition for
partition, 709
damages in such case, how recovered and
appropriated, 709
by committing waste by tenant, knowing that
an action is pending for recovery of
land, renders party liable to three
times actual damages, 709
by cutting down and injuring trees, and by
other injury to real estate without
license, three times actual damages to
be recovered, unless defendant be-
lieved he had a right, 709
Casual and involuntary) trespasser may
tender amends therefor, 709
in such case, if in an action he disclaims ti-
tle, and sets forth the tender, and
brings the money into court, he may,
on proof of facts, have judgment for
costs, 709
if such tender was not made before action
brought, he may disclaim in the ac-
tion, and bring money into court, and
proceedings thereon, 709
140
TRIALS.
In Civil Cases.
by jury, maybe waived in civil cases, and trial
had before court, 661
exceptions may be taken, new trial granted, audi
review had as in other cases, 661
by jury in actions before justices of peace,
how had, 005
not to be delayed for want of reply to defend-
ant's answer, 061
nor by reason of liling iuterrogatories, , . 661
in complaints for flowing l:md, trial may be
had in court as in other civil cases, if
parties so agree, 756
In Criminal Cases.
In examinations before magistrates,
S27, 828, S32
may be a(ljourncd not over ten days at one
time, 832
to take place as soon as may be, .... 832, 833
mode of conducting, 833
rights of the prisoner as respects witnesses
and counsel, 833
magistrate may examine witnesses separate-
ly, 833
testimony may be reduced to writing, , . . 833
witness shall sign his testimony when re-
quired by magistrate, 833
duty of magistrate in discharging prisoner
or holding him to answer, 833
as to recognizing witnesses, with or with-
out surety, SJS, 834
magistrate may associate other magistrates
of the same county, 834
no fees to be taxed for such associates, . , 834
when magistrate may supersede commit-
ment, or discharge recognizance of
parties and witnesses, 834
On Indictments, &c., every party indicted
may defend himself, and be heard by
counsel, 790, 833
shall have aright to produce witnesses, «&c.,
and meet witnesses against him face
to face, 9, 15, 790, 833
issues of fuct, how to be tried, 840
no grand juror to be on trial jury, 841
prosecuting officers and defendants entitled
to challenge jurors as in civil cases, . 841
peremptory challenges, in what cases, and
how many, allowed, S41
what opinions disqualify jurors in capital
cases, 841
form of oath of- jurors, 841
what jurors may alBrm, 841
when defendants must be present at trial, . 841
when and how tliey may be tried in their
absence, 841
court may order a view, 841
defendant relying upon a written license
must prove it, 841
what may be shown in defence in case of libel, 841
proof as to o^vnersliip of property ,in prosecu-
tions affecting real or personal estate, 841
what time is included in " night time," , . 841
proceedings, when person indicted is at the
time of trial found insane, 841
jurors may decide the law and fact, 842
duty of the court in such cases, 842
if person indicted for felony is convicted of
part of charge and acquitted of resi-
due, he may be sentenced, 848
1114
INDEX.
TKIALS — continued.
proceedings, where defendant is aoquitted by
reason of insanity, 842
persons acquitted not liable for fees or subsist-
ence, 842
indictments not vitiated by certain defects of
form, 842
prOBCCutions under by-lawg of a city or town,
who may discontinue, 842
persons held in prison shall, if they desire, be
tried at next terra after six months
from time of imprisonment, unless,
&c., m
or shall be bailed on their own recogni-
zance S40
Of capital cases in supreme court, 555
excei)tions in, may be taken as in other cases, 554
TBIAL JUSTICES.
appointment, jurisdiction, and powers of, in
criminal cases, OUS-OIl
(See Justices of the Peace.)
to make annual returns to secretaiy of money
received by them, and of criminal
cases, 129
penalty for neglect to make such returns, . . . I'J'J
when may authorize arrest and discharge of
poor debtors on mesne process and
execution, . 033, 035
{See Pool* Debtors.)
TRICKS -WITH CARDS, &c.
obtaining property by, how punished, . 570,009,802
TROTTING PARKS.
location and regulation of, 825
{See Race Grounds.)
TROVER.
action of tort substituted for, 653
form of declaration, and answers in, ... . CGG-0G8
TBtTANT CHILDRElSr.
towns and cities may make regulations and by-
laws with penalties concerning, . . . 230
such by-laws to be approved by superior court, 230
convicts uuder such by-laws may be lined or
committed to house of reformation,
&c., 230
may he committed in default of payment of
fine, 230
how discharged if ujablc to pay flue, 230
warrants in such cases, where returnable, . . . 230
compensation of justice, i:c., in such case, . . . 230
Truant officers, to be appointed, 230
duties of, 278,230
TRURO.
land in, ceded to United States, 45
TRUSTS.
provisions concerning, 500-503
property held by, when and to whom taxable, . 7G
not to be taxed for parochial purposes, . . 202
appraisers of, when appointed, &c., 501
when may be sold, &c., under authority of
probate court and supreme judicial
court, 501, 502
equity jurisdiction of probate court and su-
preme judicial court concerning,
under wills, 503
coneernmg land, not to be created or declared,
except by written instrument signed,
or by implication of law, 602
not to defeat purchaser or attacliing cred-
itor without notice, 502
recording declaration of, in registry of
deeds, to be equivalent to actual no-
tice, * . . . . 602,603
T'BXSSTS — contimied.
suits for enforcemeut of, to be brought in
supreme court in equity, 568
proceedings for termination of, when held
for benefit of creditors, 502
TRUSTEES,
for holding trust fund of pariehea, &c., how
appointed and governed, 203
of funds given to towns, &c., and for charitable
and religious purposes, to make an-
nual report to selectmen, 206
may be removed by probate court, &c., . . 200
to receive damages allowed for taking land, &c.,
for highways, how appointed, &c., . . 234
to give bond, &c., 234,235
may be appointed by supreme judicial court,
when charters of corporations expire,
&c., 388
powers and duties of, in such cases, . . 388, 389
when may be appointed to hold proceeds of
sale of trust on land held for life, &c., 473
of property awarded to wife upon divorce,
may be appointed by supreme court, 535
of separate property of maiTied women, . . 538
General provisions, 50O-5O3
joint, accounts of, may be allowed on oath of
one, '. 504
final discharge of, when to be given and recorded,
and effect of, 604
how to dispose of money not claimed within
six months after decree of payment, . 504
may be authorized by probate court to adjust
cliiims, &c., by compromise, 504
and to release, &c., rights or ioterests of
estates represented by them, 505
when may be exempted from giving bond for
proceeds of sale of real estate, .... 505
provisions respecting new bonds of 605
suits between, may be brought in supreme
court in equity, 559
may prosecute actions commenced by, aud bring
actions on liabilities to their predeces-
sors, in certain cases, G50
in actions against, in their representative ca-
pacity, how demands against those
they represent may be set off, .... G70
may effect insurance of trust property in mu-
tual fire insurance companies, &c., . . 329
not liable in individual capacity on such in-
surance contract, 329
may release damages to laud, &c., taken for use
of railroad, 352
Under deeds, &c., how appointed in case of
vacancy, &c., 501
Under wills, to give bond ; condition there-
of, soo
bonds of, may be joint or several, 605
to be approved by judge of probate
court, &c., 505
when exempted from giving bond, . . . 500; 505
when new bond may be required of, ... . 505
provisions concerning suits on bonds of,
501, 505
neglecting to give bond to be considered as
dechning trust, 501
neglecting to give new bond when required,
to be removed from trust, 605
may resign trust, 601
executors, &c., of, not bound to accept
trust, 501
may be appointed by probate court, if testa-
tor omits, »fcc., 601
INDEX.
lllf
TKUSTEES — continued.
powers, rights, and duties iu such cases, . . 501
may be removed by probate court, aud
others appointed, ou application of
parties, 501
may be removed for insauity, &c., 501
may be appointed by probate court or su-
preme judicial court, when trustee de-
cUnee, dies, &c., 501
new, to give bond, 501
inventory by, may be dispensed with, . . 501
court may order conveyances to, by for-
mer trustee, &c., 501
when inventory is required of, appraisers
to be appointed, sworn, &e., 501
bonds of, may be put in suit by order of
probate court, 501
may be required to sell trust properly aud
make investments, &c., 501,502
probate court and supreme judicial court to
have concurrent jurisdiction in equity
iu matters concerning, 503
WTien minors, married women, &c., su-
preme judicial court may order sale
of tru<;t property, in certain cases, and
appoint trustee to sell and convey, . . 50ii
TRUSTEE PEOCESS.
conmiencement and service of process, , , . 720, 721*
all personal actions, except replevin, may be
commenced by, . , <. 721,729
for the recovery of taxes in certain cases, ... S3
any person or corporation may be summoned as
trustee in, 721
in what counties actions to be brought, 721
writ iu, to be signed, bear teste, issued, ic,
like other writs in civil cases, .... 721
additional trustees may be inserted in writ at
any time, 721
writ, how 6er\ cd ; may be served several times, 721
if service is made on trustee after service on de-
fendi\ut, writ to bo again served ou
defendant, 721
service on trustee attaches the defendant's prop-
erty in liis hands, 723
what property may, and what may not, be at-
tached and held by such process, 591,723,724
tmstee must be summoned in county where he
dwells or has his usual place of busi-
ness; and, if he is summoned else-
where, effect as to costs, 721,723
if trustee is discharged, writ not to proceed
against defendant unless legal service
has been made on him, 721
Appearaxce and Answer of Trustee.
person summoned as trustee must appear and
file full answer, under oath, within
first ten days of return term of the
writ, or before end of term if less
than ten days, 722
liable to costs, if he fails to appear and an-
swer, 72.3
if trustee is out of state at time of service, and
appears and answers at first term iifter
his return, he may have his costs, , . 728
plaintiff may further examine trustee upon writ-
ten interrogatories, 722
answers to interrogatories to bo filed in clerk's
ofiice within seven days after notice, . 722
if answers are not full, court may pass order re-
specting same, 722
corporations may answer ty cashier, treasurer.
TRUSTEE 'PViOC^BS — continued.
secretary, or other officer appointed
therefor or required by the court, . . . 722
answers to be taken as true ; but facts not stated
nor denied may be alleged and proved
by cither party, 722
such additional facts may be tried by court or
jury, 722
person summoned as trustee, if he does not ap-
pear and answer, to be defaulted aud
adjudged a trustee, 722
persons wilfully answering falsely, liable, in an
action of tort, to pay full amount of
plaintiff's judgment against defend-
ant, and to be punished for perjury, . 722
Adverse Claimants.
if the goods and effects, &c., in hands of trustee,
are claimed by another person by as-
signment or otherwise, claimant may
voluntarily appear or be summoned in, 722
claimant may be admitted as a party respecting
his title to the property, and trial how
conducted, 722
testimony may be taken by deposition or orally, 722
costs, in such cases, may be allowed between
plaintiff, trustee, and claimant, as court
orders, 729
Chargixg axd DiscnARGiXG Trustee.
goods, effects, and credits of defendant in hands
of trustee, held chargeable, and to
respond to final judgment for plaintiff, 72-1
debts, legacies, and other effects, in hands of, or
due from, an executor or administra-
tor, held, 723
dividends in hands of assignees of insolvent
debtors, except upon claim for wages,
in certain cases held, 723
debts due absolutely, and not upon contingency,
although not yet payable, how may be
held, 723
property in hands of trustee by a conveyance
void against creditors, held, although
defendant could not maintain action
therefor against trustee, 723
trustee may set off all demands whicli lie has
ag'ainst defendant, and is chargeable
only with balance due from him, . . . 72^;
except unhqiudated balance for wrongs or
injuries, 723, 72-1
if, alter service of process ou trustee, aud before
he has knowledge thereof, lie in good
faith pays over, or becomes liable to
pay, to a third person, the property in
his hands, he is not chargeable there-
for, 724
twenty dollars due for wages of defendant, or
for services of his wife or minor chil-
dren, not to be held, 724
when a savings bank is charged as trustee, aud
there is doubt as to identity of de-
fendant, court may require plaintiff to
give bond, 724
for what a trustee shall not be chargeable, . . . 724
Costs.
allowed to trustee, who appears and answers as
required, 727
on trials of issues of facts between phuntiff and
trustee, may be awarded by court to
either party, 727
1116
INDEX.
TBUSTEE VROCESS — continued.
for trustee, when charged, to be retained out of
efltects in his hands, if he has suffi-
cient ; and if not, he may have an ex-
ecution for balance against plaiutilF, 727, 72S
trustee, when discharged, to have judgment and
execution for costs against plaiiitilT, . 728
allowed to trustee who is out of state at time of
service on him, if lie appears aud an-
swers at first term after his return, . 72S
if such trustee is summoned in a county other
than that in which he dwells or has
his usual place of business, he may
have liis costs, if he appears at any
time, 728
may be recovered against trustee, if he fails to
appear, 728
how demanded and collected of trustee, in such
case, 728
when recovered against more than one trustee in
same writ, execution to issue against
them jointly ; and either one, paying,
may have contribution against the
others, 728
on scire facias against trustee who is defaulted,
to be paid by trustee, 728
unless it appears that he has paid over, on
tlie execution, all the effects in his
hands, 728
or trustee was prevented from appearing
in original suit by absence from state,
or sufficient cause, &c., 728
when to be paid by trustee in original suit, and
on scire facias also, one execution for
both sums may issue against him, . . 72S
no more to be recovered, in several suits of scire
facias, against trustees who might
have been joined, than if but one suit
had been brought, 72S, 729
in case of adverse claimants, may be awarded
between plaintiff, claimant, and trus-
tee, as court shall order, 729
not to be allowed to plaintiff in suits, except for
necessarics,whereiu defendant's wages
arc attached, uidess plaintifT recovers
five dollars debt, 729
DEAxn OF Pakties.
if trustee summoned in his own right dies, at-
tachment to continue, and his execu-
tor or administrator liable, 725
if he dies before judgment, executor or adminis-
trator may voluntarily appear, or be
cited in, 72G
examination of deceased, which had been filed, to
have same effect as if he were liv-
ing, 72G
if executor or administrator docs not appear,
judgment and execution may be had
as if trustee were living, 72(5
if amount of execution, in such case, is not paid
by executor or administrator, scire
facias may be brought against him, . 72G
if trustee dies after judgment, executor or ad-
ministrator to pay amount on execu-
tion, or scire facias may be brought
against him, 726
when trustee, against whom execution issues,
dies before thirty days after judgment,
demand may be made on executor or
administrator within thirty days after
appointment, 726
THXJSTEE VB.OC'ESS — conthined.
judgment against executors and administrators,
how enforced, "26
execution in original suit on scire facias not
to issue agiunst their own goods or
their bodies, but against the estate of
deceased in their hands, 7nl
if executor or administrator does not pay
the amount due on the judgment, rem-
edy for creditors, . • 720
Judgment, Exkcution, a>'d Scire Faclvs.
judgment in original suit need not express
amount with which trustee is charge-
able, 724
but the amount to be expressed in judgment on
a writ of scire facias, 724
if demand is not made within thirty days after
judgment, property may bo attached
and held in other suits, 724
or may be recovered by defendant, 724
but if not attached by a subsequent process,
and no action is brought therefor by
defendant, and trustee has not paid
over, it may, after that time, be de-
manded and held, 724
demand, how made, when trustee cannot be
found in state, 725
judgment against trustee to protect him against
defendant for all property accounted
for by force of same, 725
dischai'ging trustee to be no bar to an action
by defendant against him, 725
if trustee does not pay over to officer upon de-
mand on execution, he is liable to scire
facias, 725
scire facias may issue against trustees jointly
or severally, 725
if several suits are brought, without sufficient
reason, when all trustees might be
joined, plaintiff to recover costs only
of one suit, 728, 729
if trustee served with scire facias does not ap-
pear and answer, and was not exam-
ined in original suit, judgment to bo
entered against him for whole sum
due plaintiff and costs, 725, 726
if such trustee appeared and answered in origi-
nal suit, he sliall be charged for sucli
sum as appears, by his examination,
and facts proved, to be due, 726
trustee may appear and answer fully on scire fa-
cias as he might have done in original
suit, and may prove any facts neces-
sary for his defence, 725
judgment in scire facias to be rendered accord-
ing to whole facts appearing, 725
scire facias to be served within two years after
judgment, and not after, unless money
was not payable when judgment was
rendered, 725
may be served within one year after money be-
comes due, if not payable at time of
judgment, 725
SrECiAL Provisions.
Mortgaged property, and property on wliich
trustee has liens, how held by trustee
process, 727
how may be attached, and mortgagee sum-
moned as trustee and held to answer
interrogatories, 628
INDEX.
1117
TRUSTEE VnOCElSS — continued.
Suits pending ag^aiust person wlicn sum-
moued as trustee, 723
when dcfendaut in au action is summoucd as
trustee, first suit not to be delayed,
unless by order of court lor judgment, 723
Buit may proceed so fur as to ascertain amount
duo, 723
may be continued, on JippUcntion of plaintiff
in trustee suit, 7Z',
if not so continued, au'd judgment is ren-
dered against delendant, he sliall not
he liable iu the trustee process while
liable to execution on first suit, . . . 733
if, during first suit, defendant is adjudged
trustee in trustee process, how lie
may avail himself tliereof, and judg-
ment entered, in first suit, 723
Specific goods, iu bauds of trustee, how dis-
posed of, 72G, 727
when trustee is charged by reason of sijecific
property which he is bound to deliver
to defendant, lie sliall deliver same to
officer on tJie execution, 72(5
officer to sell such property, and apply same
in like manner as if tukeu on execution
in other cases, 720
value of property, as between defendant and
trustee, how determined, 720, 727
trustee not bound by trustee process to de-
liver specific goods at any other time
and place than according to liis con-
tract, 727
may, notwithstanding such process, de-
liver same according to contract, xm-
less he has previously been ailjudgcd
trustee, 727
when ti'ustee has a hen or mortgage on the
goods for a debt, creditor may, on or-
der of court, pay or tender the amount
thereof, and trustee shall deliver the
same to officer, 727
if the property is held for any other security
than payment of money, court may
make order respoctiug same, and pro-
ceedings thereon 727
goods so taken shall be sold by officer ; and,
out of proceeds, creditor to be first
paid, or indemnified for what he ad-
vanced or became liable for to trustee, 727
before payment by creditor, trustee sliall not
be prevented from di-^posing of tlie
property, if he has authority tlierel'or, 727
if trustee refuses or neglects to deliver to
oflicer specific goods for which he is
chargeable, he shall be huble to plain-
tiff for their value, 727
Before Justices of the Peace axd Po-
lice COUKTS.
all personal actions, except replevin, before jus-
tices of peace and police courts, may
be brought by trustee process, .... 729
foregoing provisions, so far as applicable, to ap-
ply to actions so brought, 729
writ may run into any county for service on de-
iendaut, in certain cases, and how
served, 729
trustee not held to answer in any county except
where he dwells or has his usual place
of business, 729
if he is out of county at time of service of writ
94
TRUSTEE 'PKOC'ESS^ continued.
on him, and does not return before
final judgment, he shall not be charge-
able, 729
trustee may appear by himself or attorney, and
declare in writing that he had not, at
time of service of writ, any goods, ef-
fects, «&c., and submit to an examina-
tion on oath, 729
if, iu such case, plaiutiff declines to examine
him, or his declarations appear to be
true, he shall be discharged, 729
examination to be on written interrogatories,
and sworn answers, 729
if trustee admits efltcts in his hands, or wishes
to submit the question to court, he
may make -full answer on oath, and
may be further examined, 729
all declarations, interrogatories, and answers to
be tiled, 729
trustee costs, amount of, and how taxed, . . . . 729
sch'L' facias against trustee maybe issued by jus-
tice or court before whom judgment
was recovered, although the debt and
coht amount to a sum beyond their
ordinary jurisdiction, 729,730
TUMULTS. (SceJiiuts.)
how suppressed, 815, SIG
TURF.
punishment for wilfully diggiug up, &c., with-
out authority, 805
TURITKEYS IN" STATE PRISON.
number, jqipuiutiii'.-ut, salary, duty, I'ce., 870, 871, S73
TUR]NrPIKE CORPORATIONS.
shares iu, to be personal estate, 3-1-i
to be transferred by deed acknowledged and
recorded by clerk of corporation, . . 34-1
provision as to erection of gates, 3-J4
may petition county commissioners for permis-
sion to remove gates, &c., 3-J4
rates of toll allowed to be taken, ;>4}, 345
board containing, to be erected at every
gate, 344
may commute the rates of toll with any pcrsou, 345
uf w houi toll shall not be demanded or received, 345
penalty for passing, &c., gates, without paying
toll, 345
for going round a gate, and entering on the
road again to avoid toll, 345
for making passage way, &c., to avoid toll, . 345
for giving false answer to toll-gatherer, :uid
thereby going toll free, 345
on corporation, for creating illegal toll, . . 345
on corporation for toll gatherer's hindering
travellers, 345
all above penalties accruing to corporatioiiB
may be sued for by their treasurer in
an actiou of tort, 34S
carts or wagons with more than forty-five hun-
dred pounds' load not to pass on road,
unless witli broad wheels, 345
drivers of loaded carts, Ac, with narrow
wheels, to give account of the weight
of their loads, &c., if requested, ... 346
penalty on, for misrepresentation, 345
for locking, &c., wheels without putting
iron shoe mider them, 345
liability of, for injury sustained by persons
chargeable with toll, by reason of
roads being out of rep:ur, .... 345,340
fines imposed on, for neglect to rejiair, to be ap-
Ijropriatcd to repairhig, &c 340
1118
INDEX.
TUKNPIKE CORPORATIONS — con/mHe^.
provisions for commissiouors to lay out turu-
pike ro::fls ns Lighways, 346
procccding-s, iu such case, to be as iu laying-
out lii«;h\vays in otlier cases, 34C
what damages shall be allowed in such case, by
whom to be paid, and how payment
thereof may be enforced, 34G
duties, *S:c.. of, to cease, when their road is estab-
lished as a highway, 346
established after Slarch 16, 1805, shsiU exhibit
yearly to governor and council an ac-
count of their income and necessary
disbursements, 34G
books of, subject to inspection of governor,
council, and legislature, 346
when road of sucli corporation is out of repair,
county coniniissioncrs may cause gates
to be set open till they otherwise
order, 340,347
TXTRISTPIKE COHVOB. A'VIO'NS — continued.
toll not to be demanded imtil commissioners
revoke their order, 347
such corporation may be dissolved by legisla-
ture, 347
not more than twenty cattle or horses to be on
bridge of, without consent, 347
not liable for loss of cattle, loads, &c,, caused
by breaking of bridge, if driven upon
it contrary to law, and without con-
sent, 347
no corporation liable for deficiency in its bridges
when carriage and load exceed weight
of six tons, 347, 34S
road of, how raised or lowered by railroad cor-
poration, 356, 357
may assign franchises to railroad corporation*,
with consent of county commission-
ers, &c., or superior court, 359
damages, how estimated in such case, 359
U.
UMPIRE.
corruption of, how punished, 813
acceptance of bribes by, how punished, .... 813
UWCURRE1?3"T BILLS. (See BanJc JiiUs.)
punihlimeut for having in possession, with in-
tent to pass, and for passing, . . 810,811
shcrift' to seize and destroy, 811
UNDERTAKER.
to make return to town clerk of certain facts
respecting deaths, 169
compensation for such return, 169
to give notice of burials made without certifi-
cate of towm clerk, under penalty, . . 169
UNIFORM, &c.
of ofiicers and soldiers exempted from attach-
ment, execution, &c., 102, GS8
UNITED STATES.
words, include territories and District of Colum-
bia, 51
constitution of, analysis, Ij 2
officers of, except postmasters, excluded from
certain state olBces, 33
jurisdiction of, in places ceded, concurrent, &c., 43-45
coast survey, officers of, may enter upon, &c., 45
damages thereby, if not agreed upon, may
be assessed by county commissioners,
subject to appeal to superior court,
tender, costs, 46
penalty for injuring monument, Ac, erected
for, 46
property of, exempt from taxation, 74
judicial and executive officers of, exempted from
military duty, 92
UNITED STAT'ES — continued.
stocks of, &e., capital of certain companies to be
invested in, 323
may use jails, except in cases arising under the
acts of congress concerning fugitives
from service and labor, 857
when to have priority in distribution of estates
of insolvent debtors, 594
statute laws and judicial proceedings and rec-
ords, how proved, &c., 078
in prosecutions for forgery, &c., when certifi-
cate of treasurer of, &c., to be evi-
dence, 809
what officers of, exempt from serving as jurors,
079, GSO
UNIVERSITY AT CAMBRIDGE, (see
Harvard CoUcgc.) 2S, 216
UNLAWFUL ASSEMBLIES. {Sec Riot.)
how to be suppressed, 815, 816
UNLAWFUL GAMES.
those using, how to be arrested and pun-
ished, 820,821
UNLAWFUL USE.
of another's property, but not with intent to
steal, how punished, 801
UNMARRIED FEMALE, &.c.
property of, to amount of five hundred dollars,
when exempted from taxation, .... 74
UNWRITTEN LAWS.
of foreign countries and of other states, &c.,
how proved, C79
USURY.
provisions concerning, 292
V.
VACCrWATIOBT.
cliiUiren to be vaccinated before two years oUi, . 191
not to attend public schools until vaccinated, 220
when to be revaccinated, •• 191
penalty on parents, Ac, for ne<;Ieot, 191
reyaccination of all inhabitants may be enforced,
when, &c., Wl
VACCIWATIOIT— TOii<in««?-
penalty for nc<jlect, 131
means of, to be provided by towns for those
unable to pay, 1^1
of inmates of public institutions, Ac, . . . 191,192
further provisions for, may be made by towns, . 192
INDEX.
1119
VAGABONDS.
and rogues, bow to bo arrested and punished, S20, S21
VALUATION OF ESTATES.
to bo taken once in ten years at least, IS
VARIANCE.
in civil actions, amendments may be made to
enable parties to sustain their cases
for causes intended, 658
acquittal because of, between indictment and
proof, no bar to new indictment, , , , 790
what shall not be deemed, in allegations of In-
tent to defraud, in cases when such
intent constitutes the offence, .... 809
in certain cases of embezzlement, 800
in offences upon real or personal estate, as to
ownership thereof, .......... 841
VEGETABLES.
to be sold by dry measure, under penalty, . . . 204
VEHICLES, (see Carriages^) 107,423,801
VENZRES.
for jurors, how issued, served, &o., 680, 681, 682, 683
VENUE.
of actions, 620
in transiiory actions, where either or neither
party lives in state, 620
where land lies in different counties, . . 620, 621
by and against counties, C21
towns, cities, parishes, and school dis-
tiicts, 621
other corporations, 021
thecity of Boston, C21
Inactions for the recovery of forfeitures, , , 021
not changed by laws relating to pleading
and prartice, 602
when a local action is brought in an erro-
neous venue, court may order a non-
suit, or the trial to proceed, GOl
when judgment is rendered in a local action
brought in an erroneous venue, how
execution shall be directed, 6SG
judgment not to be arrested or avoided on writ
of error iu civil action, by reason of
mistake in, 745
VERDICTS.
to bear interest, GS5
may be set aside and new trials granted by
courts in which the same are ren-
dered, 660
rules respecting forms of, may be made by
courts, so as to place on record find-
ings of juries, 566
acquitting of part of offence charged and con-
victing of residue, when may be re-.
ceived, &42
VESSEL.
word, how construed, 290
VESSELS.
where and to whom taxable, 74, 75, 77
Pilotage of, 287-289
penalty for boarding in certain harbors without
leave, except by pilots, &c., 290
for n.ot leaving, when ordered, after having
80 boarded, 290
for enticing away crew of, 290
for inducing seamen to leave who have re-
ceived advance wages, 290
how recovered in such cases, . 290
what to be deemed limits of certain harbors, in
such cases, 290
record not necessary to validity of mortgage of, 767
lien on, 768,709
punishment for wilfully casting away, &c., . 804, 805
VESSELS — continued.
punishment for breaking and entering, and lar-
ceny therein, 797
"Weighers of, and of lighters, for trans-
porting stone, &c., how appointed, . . 290
to be Bwom, 290
to cause such vessels to be weighed and
marked, 291
to furnish requisite marks, and affix them, . 291
how to mark vessels, Ac, 291
to keep account, and give certificate to mas-
ter, of distance of marks, 291
fees of, and by whom paid, 291
penalty ou, for falsely placing marks, or
false certificate, 291
how to be marked to express weight which they
will carry, . 2S1
deduction, how made in taking tonnage of, . . . 291
persons on board of, where to be stationed dur-
ing marking, &c., 291
penalty for not remaining in such station, . 291
marks of, to be examined annually, 291
proceedings if marks do not agree with former
certificate, 291
penalty on owner and master of, for neglect to
have such vessels weighed, &c., ... 291
cities and towns may establish ordinances, with
penalties, regulating weigJiing and
marking of, &c., 291,292
VESTRY.
when to be a corporation, together with minis-
ter, &c., to take and hold grunts, &c., 205
conveyance of land by church wardens, not
valid without consent of, 206
VETO.
of president of United States, 4
two thirds of both houses may pass bill
over, . .■ 4
of governor, 17
two thirds of both houses may pass bill
over, 17
VICTUALLERS, (see JnrOioUlers^) 455, 456
VIEW.
court may order, by jury, in criminal cases, . . 841
by jury, may be ordered in actions for waste, . 709
may be had by order of court, at request of
either party, in any case, 683
expenses of jury in such case, how paid and
taxed, 6S3
VISITORS.
to statcprison or convicts, provisions respecting, 875
VOTERS.
qualifications of, 10, 32, 3S, 39, 50, 159
to be able to read the constitution in English,
and write name, 38
naturalized citizens to be, after two years' resi-
dence, 39
census of, when and how to be taken, 38, 39, 167, 108
selectmen, &c., to make lists of, and post, ten
days before elections, 55
to meet to receive evidence of qualifications, 56
to give notice of meeting on posted lists, . 56, 57
when to meet if voters exceed one thousand, 57
to correct lists, 57
to require proof of naturalization, 57
when not answerable for omissions, .... 57
penalty for giving Mse answer to, 57
penalty on town, Ac, officers for neglect of duty, 57
presiding officer at elections to be provided with
list of, 53
no person to vote unless his name is on list of, . 58
VOTES. {See Elections.)
1120
INDEX.
w.
WAGES.
Bums due for wages of defendant, or hie minor
cbiUlreu, to extent of twenty dollars,
not to be held by trustee process, ex-
cept for neceRsaries, 724
when attached by trustee process, except for
necessaries, plaintiff to have no costs,
unless he recovers five dollars debt, . 72D
of operatives, when entitled to preference in
distribution of estates of insolvent
debtors, 5W, 595
in mauufaeturiug establishments, how recov-
ered of stockholders, 386
■WALlSriTTS.
to be sold by the strike or level measure, . . . 264
'W AUTtS, (see Guardiauj) 543-647
■WARDEN OF STATE PRISON.
ai)poiiitnient, duties, Ac, 870-875
to notify commissioner of insanity of convict, . 878
duty of, in such cases, 878
duties of, when those pardoned violate con-
ditions o^' pardon, 855, 85G
iSee State Prison.)
■WAREHAM.
provisions Ibr regulation of fisheries in, .... 432
WARRANT.
In Cki.minal Cases.
how signed, issued, .fee, by justices of the peace
and police courts, 571, 572, 608
may be issuea by judges, &c., of police
court, when court not in session, . . 570
issued by police courts and justices of the
peace, whereto be made returnable, 570, 571
fees for, not to be allowed justices in cer-
tain cases, 570, 608
issued by police courts, to be returned as
specified therein, with return of officer
who had the same indorsed thereon, 571
to make search or arrest, to be supported by
oath and accompanied with a special
designation of the object of search or
arrest, 15
not to be issued except as prescribed by law, . 16
to make search for liqnors unlawfully kept,
&c., when to be issued, 445
not to be issued for search of dwelling-
houses, unless, &c., 445
place to be searched to be described, &c., . 445
proceedings under, in such cases, 445
form of, &c., 450, 451
costs in proceedings in, 440, 447
to arrest person charged as being a fugitive
from justice, 854
in capital cases, liow to be executed, and return
thereof, 847
of distress may issue against corporation in-
dii-ted and convicted, to compel pay-
ment of the penalty, 847
Ix Civil Cases.
to summon jurors for coroner's inquest, 848
penalty on constable for neglecting or fail-
ing to execute, 848
of distress, in favor of state, liow debtor im-
prisoned on, may be discharged on
taking poor debtor's oath, 639
WARRANT — con^j*H7ie^.
from court of insolvency, to be under seal in all
cases, 582
for taking possession of debtor's estate,
form of, &c., 5S2, 583
fees for service of, 600
WASTE.
penalty on joint tenants, and tenants in com-
mon, for strip or waste without notice
or during pendency of process forpai--
tition, 709
damages in such case, how recovered by other
co-tenants and divided, • • 709
equity .jurisdiction of supreme court, in case
of waste, 559
injunction to stay, may issue by one judge of
supreme court in term time or vacation. 710
Buch injunction may be dissolved by sin-
gle judge in term time or vacation, . . 710
committed or threatened when land is at-
tached, or when an action is brought
to foreclose a mortgage, or for posses-
sion under same, or for recovery of
land, injunction may be issued, . . , 710
in such case court may require applicant to
give bonds, 710
if injunctions are violated, court may com-
mit defendant, and issue process prop-
er to enforce obedience, 710
court, in which suit is pending, may dissolve
injunction at any time, , . • 710
how stayed or prevented by injiuiction when
suits iu equity or actions of tort are
pending concerning nuisances, . . . . 711
Scire facias may be brougbt on suggestion of,
when execution against an executor,
&c., is returned unsatisfied, 651
may be brought in such case before justices
of the peace, . 605
may be brought against executors and ad-
ministrators when tbey negleettopay
on judgment in trustee process, . . . 726
Action of, may be brougbt by person having
next estate of inheritance, against
tenant in dower, by curtesy or for
years, committing or suffering waste, 708
may be brought by heir for waste done
while ancestor Hved, 708
issue of fact joined in, to be tried by jury, 708, 709
plaintiff may recover place wasted and dam-
ages, 708
damages to be assessed by jury, 709
Action of tort, in nature of waste, m.ay be
brought instead of action of waste, . 700
may be maintaiucd by persons liaviug re-
mainders and reversions, in fee sim-
ple, fee tail, after an inter\'cning life
estate, or for life or years, 709
damages may be recovered in such action, . 709
may be commenced, or if commenced, may
be prosecuted agiuust executors and
administrators, 709
may be maintained against tenant who com-
mits waste during pendency of action
to recover lauds, and three times
amount of damages recovered, .... 709
INDEX.
1121
V?"ATOH AND "WARD.
may be estiiblished by cities and towns, .... 17:J
expense of, to be defrayed like other town
charj^cs, 173
officer of, to be appointed, ir:i
powers and duties of watchmen, 173
badges and weapons of watchmen, . , 173
selectmen may order, when none ia established, 173
may deterraiuc number of watch, &c., ... 173
may order constables, &c., to warn persons
to attend, &c.,- 173, 174
persons liable to duty of, 17-i
exempt from duty, 174
penalty on persons liable to duty, for neglect to
appear, &c., 174
on constables, watchmen, &c., for refusing
to execute orders, 174
how and to whose use recovered, 174
"WATCH DISTRICTS.
may be established in villages of not less than
one thousand persons, 174
meetings for organization, how called, 174
proceedings when village is situated in two or
more towns, 174
clerks of. to be chosen and sworn, 174
may be removed or may resign, 174
in case of vacancy auotlier may be chosen, , 174
to certify to assessors of town amount of
money to be raised, 175
prudential committee to be chosen by ballot and
sworn, 174i
to consist of not less than tliree nor more
than (ive persons, 174
to have superintendence of watchmen, man-
agement of money, &c., 175
annual meeting for choice of officers, how and
wlicn called, 174
moderator to be chosen, 174
clerk to preside until moderator is chosen, , 175
may raise money for payment of watchmen,
&c., 175
Buch money to be assessed and collected in same
manner as to^vu taxes, 175
duty of prudential committee and assessors
when district is situated in different
towns, 175
territory adjoinhig, how may be annexed to, , . 175
heretofore organized, to continue, &c., 175
WATCHMEN.
refusing to assist, how pmiished, 813
falsely assuming to be, how punished, S14
of state house, how and wlien appointed, . 133, 134
duties and salaries of, 134
to receive no fee for opening rooms for
view of visitors, 134
in state prison, number, appointment, salary,
duty, &c., 870-873
Assistant, in state prison, appointment, duties,
and pay of, 870, 671
WATER.
wilfully and maliciously corrupting, &c., ■ . • . 823
WATERCOURSES.
in roads, how regulated, 246
WATER RIGHTS.
owned by tenants in common, may be divided
upon petition for partition or suit in
equity, 706
m a navigable stream, may in like manner be
partitioned in certain cases 706
WATERTOWN.
land in, for forts, arsenals, &c., ceded to United
States, 44
94* 141
WAY. {See BigUways.')
punishment for opening, through burial grounds
without consent, 822
laying out, Ac., 232-244
WiaARING APPAREL.
exempted from t;ixat ion and disti-ess for taxes, 74, 82
allowed to widow and minor children of de-
ceased person, 4S9
what exempt from attachment and execution,
624, 688
WEIGHERS.
Public, and their duties, 286
Of beef, how appointed, 258 •
not to be dealers in cattle, 258
to be sworn, 258
fees of, for weighing, 258
Of hay, how appointed, term of office, &c., 101, 2fi6
duties and fees of, 266
may be removed, 206
Of coal, how appointed, &c., 279
not to be dealers in coal, 279
to be sworn, 279
WEIGHTS, MEASURES, AND BAL-
ANCES.
congress may fix standards of, 4
what to be authorized standards in this state, . 284
Standards of, to be kept by treasurer of com-
monwealth, 2S4
to be replaced when necessary, marked,
stamped, &c., 284
treasurer to furnish duplicates of, to his
deputy, 284
deputy to be sworn and give bond, 284
to keep duplicates, and seal weights, &c., . 284
complete sets of, to be furnished to treas-
urers of newly incorporated towns, , 284
furnished by state, to be kept and repaired
by treasurers at expense of coimties,
towns, &c., 284, 885
penalty on treasurers of counties, &c., for
neglect to keep in repair, &c., .... 285
to be proved and sealed once in ten years,
at expense of county, .tc., 285
penalty on treasurers for neglect, 285
Sealers of, one or more to be appointed by se-
lectmen, unless chosen, 161
each to have a set of standards, 285
accountable to towns for preservation of
standards, 285
to have seals, 2S5
form of seal, 285
to notify inhabitants to have weights proved, 285
to prove hay scales, &c., aimnally, 285
not to remove standards except for such
purpose, 2^
penalty on, for neglect of duties, 285
fees of, 286
penalty for selhng by, unsealed, 285, 28G
"hundred weight" to be construed the net
hundred, . 286
who to be deemed public weighers, 286
rules for weighing, 286
penalty on weighers for neglect, &e., 286
special provisions for measurers of salt and
grain, &c., 286
not to prevent measuring salt for vessels by
measures used by government of
United States, 280
weights of banks to be scaled by treasurer, &e.,
once in five ye;irs, 310
tender of gold by banks, weighed with un-
sealed weights, Ac, not valid, .... 310
1122
INDEX.
■WELLFIiEET.
laud iu, ceded to United States, 45
WELLS.
poisouing, how punished, 794
wilful and malicious corrupting, defiling, &c.,
how ponisbed, S23
■\ArEST CHOP.
laud at, cfdcd to United States, 44, 45
WESTFOKT.
laud iu, ceded to United States, 45
penalty for taking fish in waters of, by persons
liviug out of state, 431
# 'WKARVES, &c.
how proprietors of, may become a corporation, 370
.iustice of peace may call meeting, &c., 379
notice of first raoetiug, how given, 379
organization of proprietors, 379,380
moderator's powers, &c., 380
clerk, treasurer, collector, &c., may be chosen,
379, 3S0
tenure of their office, 380
clerk to be sworn, and to record all votes, &c., . 380
treasurer to receive and pay out money, &c., . . 380
proprietors may sue and be sued, &c., , . . . . 380
not to sue individually, and also as corpora-
tion for the same injury, 3S0
may make by-laws, &c., 3S0
by-laws, with penalties annexed, to be ap-
proved by county commissioners, &c., 380
powers of, at legal meetings, 380
to vote according to shares of each, .... 380
may raise money by assessments, &c,, . . . 380
shares of, may be sold to pay assessments, . 380
notice of sale, how to be given, itc, . . . ;?.80
how redeemed, after sale, 380, 381
when proprietors may sell, &c., 381
may, after chvision, hold meetings, and do all
acts necessary to close their business, 381
how long, after division, they may act as a
corporation, 381
records of, after final division, where to be
deposited, 381
"WHEAT,
standard weight of bushel of, 2o5
provisions concerning sale of, ^05
WIDOW.
property of, to amount of five hundred dollars,
when exempted from taxation, ... 74, 75
to have dower in lands of her husband unless
lawfully barred, 4(»9
in lands taken on execution, 524
may occupy lands in which she is entitled to
dower iu common with lieirs, with
their assent, 470
dower of, may be barred by jomture or pecuniary
provision before marriage, 470
may waive such jointure, &c., if made without
her asstyit, within six months after
death of husband, 470
not to be endowed of wild lands, 470
if evicted of lands assigned to her as dower, or
jointure, &c., may be endowed anew, . 470
of intestate without issue, to take half of real
estate for life, &c., 470,471
or may have dower, if she 80 elects, .... 471
undivided estate of, in lands of her husband,
may be set off same as dower, .... 471
endowed in lauds demised for one hundred
years, &c., liable for part of rent to
the owner of residue of term, .... 471
right of, to dower, &c., not aflected by advance-
ment to heirs, 475
WTDOW— contlmted.
may waive provision in husband's will, and be
entitled to property as if ho died intes-
tate, 478
if she makes no w.aiver, not to be endowed of
lands, unless it plainly appears by the
will that the provision therein was in
addition to dower, 478
claim of, to administration of husband's estate, 483
allowance to, from fuuds in bauds of special ad-
ministrator, 484
to be entitled to one third of residue of personal
estate of deceased husband, after pay-
ment of debts, &c., 485
in distribution of personal estate to, advance-
ment to issue not to be computed, . . 485
if no issue, to be entitk-d to five thousand dol-
lars and one half of excess over ten
thousand dollars of residue, 485
to be allowed her apparel and ornaments, . . , 489
provisions for sustenance and use of hus-
band's house, <tc.,for forty days, . 471, 489
such provisions for herself and children as
circumstances require, 4S9
homestead rights to continue for benefit of,
after husband's death, &c., 520
may be set ofi* to, 52G
may join in sale of such homestead, &c., . . . . 526
provisions concerning the assignment of
dower, 4G9, 470
{See Doioer.)
WJ-b'E, {see Married iroman,) . 390, 483, 533-635, 82G
WIGWAM POENTT.
laud on, for lighthouse, ceded to United States, 44
WILFUL.
injury to burial groimds and apimrtenances,
grave-stones, &c., 821, 822
disturbance of religious meetings, 819
of C4imp-meetings, 819
of schools or other lawful assembly, .... 820
of funeral procession, 820
making false entry in prison Dook by jailer, . . 860
WILPtTL AND WANTON.
destruction by convict, of property in jail or
house of correction, how punished, . 862
WILFUL AND MALICIOUS.
killingof horses, cattle, &c., how punished, . . 805
poisoning, or administering or exposing poison
to them, 805
injury to, or removal of, boundaries, guide
boards, mile stones, &c., 803
defacing inscriptions thereon, 803
extinguishment of lamps, &c., removal of lamp-
posts, &c., S03
defacing any building, 803
removing railings, &c., from bridges, streets,
&c., 803
injury, &c., to any church, school-house, furni-
ture, or appurtenances thereof, . . . 803
dwelUng or building, by explosion of gun-
powder, &c., 803, 804
by oil of vitriol, coal tar, &c., 804
dams, mills, &c., 804
ice intended for merchandise, 804
of toll bridges, gates, canal locks, embank-
ments, &c., ^^
of ship or vessel, to injure owner or in-
surer, S04, 805
horses, cattle, &c., ^^^
fruit and ornamental trees, 805
glass, fences, &c., 805, 806
personal property of another, ....
806
INDEX.
1123
"WTLFUL AND MALICIOUS — continued,
injury to bank bills, how punished, 810
taking of another's propertj', but not with in-
tent to steal, liow punished, SOI
corrupting wells, springs, reaor\'oirs, &c., . . . 823
WILFUL TRESPASS.
by cutting timber, grain, &c., 805
by entering gardens, orchards, &c., vrith intent, 806
how, when done on Lord's day, 80G
to fruit or forest trees on the Lord's day, . . , 806
persons injuring, may be arrested \vithout
warrant, 806
and be detained not over twenty-four hours, 806
killing or frightening pigeons from beds, how
pimished, 806
person so doing, liable to o^vner, &c, of such
beds, 800
-(5ee JVtI/ul and Malicious.)
"WILL.
to include " codicil," 52
may be made by persons of full age, of all real
estate, and all right to and interest in
the same, except estates tail, 476
and of all personal estates, and rights to
and interests in the same, 470
Low made by a married woman, 538
property disposed of by, to be subject to pay-
ment of debts of testator, .... 470,479
real estate undevised by, first liable for debts,
unless different provision is made by
wiU, 480
shall pass devisor's right to land, though he be
not seised at time of making it, or be dis-
seised afterwards, ' . . , . 470
shall pass estate, &c., in land, acquired after it
is made, if such be his manifest inten-
tion, 470
shall be construed to convey all devisor's es-
tate which he could lawfully devise,
unless it clearly appears that be
meant to pass a less estate, 476
giving land to one for life, and to his heirs in
fee, to vest estate for life in first taker,
and remainder in fee simple in his
heirs, 466
giving land to two or more, to create estate in
common, and not in joint tenancy, on-
less expressly provided, &c., 466
exception, in such case, if devise bo made to
husband and wife, or in trust, .... 407
not to pass or affect any property, unless writ-
ten and signed by testator, &c., and
subscribed in his presence by three or
more competent witnesses, 476
or made in conformity to laws existing at
time of, 476
or if made in conformity to laws of state,
Ac, where made, 476, 477
or nuncupative will, made by soldier in ac-
tual service, or mariner at sea, .... 477
if witnesses are competent at time of attesting,
subsequent incompetency, not to pre-
vent probate thereof, 476
devise to attesting witness of, void unless there
are three other competent witnesses, 477
by what acts may be revoked ; revocation of,
may be implied by law, 477
may be deposited in registry of probate, and
shall be received and kept by register, 477
provisions for sealing, securing, &c., in
such case, 477
to whom to be delivered 477
"WILL — coniimied.
when to be opened by probate court, 477
not effectual to pass any property, until duly
proved and allowed in probate court, 4S0
probate of, conclusive as to due execution of, in
all cases, 480
person having custody of, (except register of
probate,) to deliver to probate court,
or executor, witliin thirty days after
notice of testator's death, 477
pimishment, &c., for neglect so to deliver,
after being cited by judge of probate, 477
proceedings against persous suspected of
concealing, 477, 478
costs in such cases, 478
when probate of, may be granted on testimony
of one subscribing witness only, . . . 478
on appeal from probate of, what questions may
be tried by jury, by direction of the
court, 478
provisions in, may be waived by widow, and
dower may be assigned her in place
thereof, &c., 478
omission in, to provide for children, &c., not to
affect their mhoritauce, unless testator
had provided for them in his lifetime,
or omission was intentional, . . . 478,479
posthumous child, not provided for in, to take
share as if father died intestate, , . . 470
devisees, &c., under, to contribute to share of
child omitted, or posthumous child, in
such cases, 479
if devisee dies before testator, liis issue to take
property devised, unless, &c., .... 479
if any estate devised is taken for testator's
debts, other devisees, &c , to contrib-
ute, unless different provision is made
in will, 479
share of child omitted, or posthumous child, lia-
ble to contribution as devisees, .... 479
proceedings in suits for contribution in such
cases, 480
devisees, unless exempted by will, to contribute
equally when dower, &c., is assigned,
&c., 480
letters testamentary on, when proved, &c., to be
granted by probate court, 481
or letters of administration, if executor does not
accept, &c., or is not of age, . . . 481,482
executors of, if legally competent, &c., to re-
ceive letters testamentary, 481
to give bond, except in certain cases, , . 481, 482
conditions of bond, 481
when residuary legatees, may be allowed
to give bond to pay debts of testator,
&c 481
such bond not to discharge lien of creditors
on real estate c^f testator, 481
executors of executors, not to administer estate
of first testator, 482
administrator with will annexed, to give bond,
&c., 482
penalty for larceny, or fraudulent destruction of, 798
indictment need not allege value or owner-
ship, 798
certain disclosures not to be evidence, . . . 798
Proved ajid allowed in another State
OR Country.
may be allowed, &c., in this state, in any county
where there Is property on which it
may operate, 478
1124
INDEX.
WILL — continued.
what notice to be given, before such will is al-
lowed, 4rS
tf allowed, copy thereof, autl of the foreign pro-
bate, to be filed, &c., 478
Bucli will not valid, if made in this state by an
iuhabitaut thereof, unless executed,
etc., as required by laws of this state, 47S
when allowed, &c., estate to be settled as in
other cases, 478
WrKTDOVC^S.
overlookiug: laud of another, easements of light,
&c., not acquired by, 472
wrNE.
unadulterated, may be sold for sacramental pur-
poses, 442
WTISTTHROP.
to vote with Middlesex county for county com-
missioners, 71, 72
return of votes in, for county commissi oners and
register of deeds, to whom made, . . 95
county commissioners of Sliddlesex to have
juristliclion in, H8, 242
not to he taxed for county purposes, 78
to liavono interest iu couutyproperty of Suffolk, 144
WITHERIsrAM.
writ of, to be called writ of reprisal, 733
wlien to be issued, /33
WlTISrESSES.
may be summoned before any person author-
ized to examine' them, 672
by any clerk of a court of record, or by a
justice of the peace, 672
summous for, Iiow served, 672
not obliged to attend unless fees for one day's
attendance and travel are first paid or
tendered, , 672
neglecting to attend when summoned, liable to
damages, and to punishment for con-
tempt of court, 672,673
may be brought in on warrant to testify and to
answer for contempt, 673
may be sworn by arbitrators, referees, and au-
ditor, 673
may be sworn and compelled to testify by
judges of court of iusolveucy, .... 581
to be sworn according to mode heretofore prac-
tised, 673
may be sworn according to their own peculiar
mode, in certain cases, 673
who are Quakers, or liave conscientious scruples
as to taking an oath, may afiirm, . . . 673
believing iu any othur than the Christian reli-
gion, how sworn, 673
not believing in any religion, shall be required
to testify, 673
evidence of non-belief in the existence of God,
may be received to affect credibility of, 673
not to be excluded, by reason of crime or inter-
est in any proceeding civil or criminal, 673
conviction of any crime may be given in evi-
dence to aftect credibility of, 673
parties may be, in certain cases, 673, 678
exception in relation to witnesses to wills, . 673
wife may be, in actions against husband growing
out of certain matters relating to her, 674
when and liow may be summoned and compelled
to give their deposition when living in
this state, 074, 675
when living out of, by beiug within this state, . 675
when their deposition is required to be used in
other states and countries, 676
WITNESSES — continued.
how summoned before coroner's inquest, . , , 849
fees of attendance in such cases, 849
may be cxammed separately, 849
testimony of, to be reduced to writing, and
signed, 849
may be required to recognize by coroner, . S-IO
Fees of, for travel and attendance, 786
to certify amount thereof in writing, ... 786
in contested elections, before payraeni, com-
mittee to certify necessity of attend-
ance, 7S7
in criminal trials, attending in two or more
cases, fees to be apportioned, 688
when may be wholly disallowed, 788
certificates of, officer not to be interested in, 788
penalty for making false, with intent to
defraud, 788
to be prosecuted for, within two years, . 788
In equity cases, to be examined as in suits at
law, 6?8
testimony in certain cases before single judge,
how reported to full court, 501
Ix Cri:\hxal, Casks.
may be summoned by justices of the peace, on
request of attorney-general or party
accused, but need not attend in latter
case unless fees are paid, 610
in examinations before magistrate in criminal
cases, 832-S35
for prosecution, to be examined by magistrate, 833
for the prisoner, by himself or counsel, .... 8;)4
testimony to be reduced to writing and sub-
scribed, 834
to be recognized, with or without surety, . . . 834
married woman or minor may recognize, . . . 834
refusing to recognize when ordered, may be
committed, 834
when unable to procure surety, his deposition
may be taken, with consent of defend-
ant, 833, &34
when recognizance of, may he dischai-ged, . . . 834
proceedings when recognizance is forfeited, and
action brought, S35
surrender of, by surety, S35, 836
summoned for state to attend without payment
of fees, S39
if unable to defray expenses, court may
order their fees to be paid, 839
and make other reasonable order, 839
court, at eacli term, may make general order for
payment ol", 839
must obey subpccna issued by prosecuting olfi-
cer in criminal cases, 839
for persons inchctcd for capital crime, or for
crime punishable with imprisonment
in state prison for life, to be sum-
moned at expense of state, 839
two required to same overt act in treason, ... 791
after issue of fact joined, delcndant may have
commission for witnesses out of state, &iO
prosecuting oihcer may join therein, and name
witnesses on part of commonwealth, . 840
further provisions iu such cases, 840
may be detained iu jails, 857
except in cases under laws of congress re-
specting fugitives from service, &c., , 857
in police courts, need uot attend from day to day
when cases are adjourned to a future
day, but may recognize to attend at
the time of adjournment, 571
INDEX.
1125
"WOOD.
cord, exposed for sale, dimcnsionB of, :
penalty for selling without being' measured, . . 278
brought by water, how to be measured, . . . . :
cities and towns may make regulations for meas-
urement, sale, &e., of, , . . 278
measurers of, to be chosen at annual town meet-
ing", or appointed by eelectmeu, . . . IGl
to be 6wom, lOl
to measure wood, and deliver ticket certifying
quantity, Ac, 278
fees of, and by whom to be paid, 27S
carters of, &c., from wlurvcs to Iiave ticket from
o^Tncr or seller, certifying quantity,
&C., 279
penalty on, for not having or showing ticket, '
&c., • 270
not to apply when owner, &c., transports iVom
wharf to his own house, &c., .... 279
WOODLAND.
burning of coal pits and brushwood on certain,
how punished 807
"WOBKHOUSE.
persons convicted a second time of drunkenness
may be committed to, 820
duty of keepers of, as to rogues committed, . . S20
(See Almshouses.)
WORSHXP, (see Puhlic Worship,) 14, 3i, 819
"W^RECKS KNT> SHTPWRECKED GOODS.
commissioners of, to bo appointed by governor,
to be sworn and give bonds, 427
bond to be given to judge of probate, and
remedy thereon as on administration
bonds, 427
Cozumissioners of, to take charge of, and se-
cure wrecked goods, if of one hun-
dred dollars' value, and not in owner's
custody, 42S
power of. to employ assistants, and sup-
press disorders, 42S
penalty on person disobeying lawful order
of, 428
duty of, as to taking inventories, and deliv-
ering copies thereof to parties inter-
ested, 428
compensation of, how determined, in case of
dispute, 428
to publish particulars of slupwreck, and of
goods found, 42S
penalty on, for not so publishing, . . . 429
may sell by auction, within thirty days,
property sufficient to pay duties there-
on, 42S
when may sell perishable goods, after ad-
vertising, 42S
if no owner, &c., establishes his claim within a
year, commissioners to account, &c.,
to state treasurer, 429
treasurer to make compensation to commission-
ers for services and expenses, .... 429
how such compensation to be adjusted, in case
of disagreement, 429
treasurer to commence suit for neglect to ac-
count, (tc, within sixty days after
expiration of a year, 429
owner not liable to pay any person except a
commissioner, unless for servicos ren-
dered before a commissioner arrives, . 428
commissioner to decide on compensation for ser-
vices thus rendered, 428
iuch decision final, if sum demanded does not j
exceed fifty dollars, 428 '
"WKECKS AND SHIP"WRECKED
GOOTiS — continued.
when appeal is taken, superior court to doter-
miue the question summarily, and
issue necessary process, ....... 428
penalty for intermeddling with wrecked prop-
erty after a commissioner is present, 428
WKITS.
issuing from clerk's office, how to be signed,
sealed, and bear tost, 31
how issued, signed, filled out, and returnable,
before supreme and superior courts, . G22
may run into any county, G22
not to be abated for circumstantial errors or
defects of form, fo7, S3G
of right, formed on, and some others in real
actions abolished, saving certain
rights, ma
original, how framed in different cases, , . , . G21
when goods arc attached on, separate summons
to be served, 021
in actions against corporations, :md persons not
liable to arrest, writs of summons
and attachment may be combined, 021, 622
in actions against executors and administrators,
form of, 651
forms of, in civil actions, to be same as hereto-
fore used, but may be altered by
courts when necessary, 022
changes in forms of, to be subject to supreme
court, and said court may make rules
in relation thereto, 022
when defendant's name is not kno^vn, may issue
agmnst him by a fictitious name, . . . 622
to be returnable at next term after expiration of
time of service, G22
of error, certiorari, mandamus, quo warranto,
and prohibition, to be issued by su-
preme court, 553
and processes of supreme court may be return-
able at adjourned term, 622
and processes of supreme court, in suits cogni-
zable by full court, how sued out and
returnable, 556
form of, when not prescribed, may be framed
by courts, 566
not to be made or filled up by sheriff's, deputy
Blierifl"s, coroners, or constables, un-
der penalty, 610
From police courts, how to be sealed, bear
test, and signed, 571
From justices of the peace, to be according
to forms prescribed, or if there are none
such, may be framed by justice, . 005, 610
how may issue, run, and be returnable, . . 605
to be signed by justice, and dated and filled
up like other writs, 622
may be returnable at dwelling-houses, aud
not to be returnable before nine o'clock
iu the forenoon nor after five o'clock
in the afternoon, 605
in action on probate bonds, how indorsed, &c., . 506
to be indorsed before entry, when all plaintiff's
live out of the state, 622
liabiUtios of indorsers, 622
after entry, iudorsor may be required, or in-
dorser changed, 057
{See Indorsers.)
Serahce of.
from supreme and superior courts, to be served
fourteen days before return day. , . . 622
1126
INDEX.
WRITS — continued.
from police courts and justices of tlie peace,
seven days, G22
against counties, towns, cities, parishes, reli-
gious Bocieties, school districts, and
proprietors of common lauds, to be
served thirty days 622
separate sumnions on, to be served by deliver-
ing-, or leaviug original, C23
may be served after an attachment, and cer-
tificate thereof indorsed on writ, . . . G23
original writs, without attachment, to be served
by copy, 633
summons, if not sei-ved personally on defend-
ant, may be Iclt at his last and usuid
place of abode, and if he has none,
with his tcn:mt, agent, or attorney, . 023
to be left with co-defendant, if be has no
such agent, tenant, or attorney, and is
not personally served with process, . 023
'WBlTS — contimied.
in real actions, if defendant is out of stat<,
summons to be loft with occupant of
premises in addition, G23
additional notice to be given, when defend-
ant is out of state, C23
in actions against counties, cities, towns, par-
ishes, school districts, and proprie-
tors of common and undivided lands,
or general fields, or wharves lying in
common, summons, how served, . . . 623
to be served by arrest or attachment, according
to directions of plaintiff, 632
arrest on, how made, and proceedings thereon,
G33-641
WRITTEN.
and "in writing," words, how construed,. . . 52
■WTRITTEW CONTBACT.
specific performance of, how enforced, . , , 559, 575
Y.
TARMOUTH.
land iu, for lighthouse, ceded to United States, 44
YEAR.
word means calendar year, unless otherwise ex-
pressed, 61
alone, is equivalent to year of our Lord, . . 51
Political} commencement and termination of, 33
YOUTH. (See Schools,)
provisions for the instruction of, 215, 219
best endeavors to be used, that they shall regu-
larly attend schools, 217
all instructors of, to impress on their minds the
principles of piety and justice, and a
sacred regard to truth, &c., 216
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